My posts this week and next week will cover the IDEA 2004 formal procedures for resolving disputes prior to a due process hearing. This week I’ll cover the due process complaint notice and next week discuss mediation and the resolution process. A subsequent post will cover the due process hearing.
Since 1975 the Education for All Handicapped Children Act (now the Individuals with Disabilities Education Act or IDEA) has provided parents the right to a due process hearing to resolve disagreements over special education services to children with disabilities. A due process hearing is a very formal procedure to resolve disputes. In a due process hearing an impartial hearing officer (IHO) makes a decision in favor of the parents or the school district after each side has presented evidence at the hearing. Parents and school districts have very specific rights or safeguards in due process hearings including the right to present evidence and to be advised by an attorney.
Thus, due process hearings, similar to a trial, are formal, can be costly, adversarial, and time intensive. To avoid the cost, time, and stress of due process hearings, parents and school districts resolve most special education disputes before they go to a hearing. In fact, in 2003 the General Accounting Office (GAO) issued a report stating that because most due process hearing requests are withdrawn or the parties settle the dispute before the hearing, the number of special education hearings nationally was low. For example, in the year 2000 the GAO found that there were only about 5 hearings per 10,000 special education students. In 2004, to further encourage resolving special education disputes, Congress amended the IDEA by adding to the dispute resolution process a due process complaint notice, a resolution process, and made mediation agreements legally binding.
Due Process Complaint Notice
The IDEA requires that whenever a party, either a parent or a school district, wishes to request a due process hearing to resolve a special education dispute, they first must provide the other side with a due process complaint notice. The due process complaint notice tells the school district (or the parent if the school district requests the hearing) who the student is, the school the student attends, what the issues are, and suggests ways to resolve the dispute. As the IDEA 2004 was being drafted, some school administrators commented to Congress that districts frequently received requests from parents for a due process hearing when the districts were unaware that a dispute even existed.
Thus, the due process complaint notice gives the school district information about the dispute and a chance to resolve the disagreement. While parents may feel it is burdensome to have to draft this notice in order to have a hearing, putting the problem and possible resolution in writing can help focus the issues and might lead to a resolution.
The content of the due process complaint notice is very important because issues cannot be raised at the due process hearing if they were not identified in the due process complaint notice. This is true unless the other side in the hearing agrees to let the new issues be addressed at the hearing. There is a process for amending the due process complaint notice to add new facts and issues. Moreover, if a parent wanted to add issues that were not in the due process complaint notice and the school district did not agree to let those new issues into the hearing, the parent could request a separate hearing on the new issues. In that event, the school district might agree to let the issues be heard in the original hearing rather than having two hearings.
Finally, State education agencies are required to develop model forms to help parents and school districts file due process complaint notices, but using those model forms is not required so long as the notice contains the information required by the IDEA.
In summary, the due process complaint notice requirment was added to the IDEA to avoid school districts being surprized when they recive a request for a hearing from a parent. It is hoped that by letting the school district know the nature of the disagreement and a possible resolution, the dispute can be resolved and a hearing avoided. Thus, the due process notice must be sent or a hearing cannot occur.