FOR HEARING REQUESTS FILED ON OR AFTER JULY 1, 2005
The Individuals with Disabilities Education Act was reauthorized and signed into law by the President on December 3, 2004. Most of its provisions, including those related to due process hearings, became effective on July 1, 2005.
This document is offered by the Delaware Department of Education as guidance to school administrators, parents, attorneys, advocates, and due process hearing panel members in implementing IDEA 2004 specific to the due process system. It addresses the immediate steps that need to be taken when a due process hearing is initiated. The other federal and state regulations that govern the hearing process remain in effect.
This document includes a summary of the new requirements. Questions regarding this information may be directed to:
Filing Request for a Due Process Hearing [Hearing Notice]
Either a parent or the LEA may request a due process hearing when a disagreement arises regarding the identification, evaluation or educational placement of a child with a disability, or the provision of a free appropriate public education for the child.
A due process hearing is requested by filing a Hearing Notice. The Hearing Notice must be filed within 2 years of the date the parent or LEA knew or should have known about the alleged action that forms the basis of the request. Exceptions to the timeline apply if the parent was prevented from requesting the hearing due to:
specific misrepresentations by the LEA that it had resolved the problem forming the basis of the complaint; or
the LEA’s withholding of information from the parent that was required to the parent under the federal and state requirements governing special education.
The Hearing Notice must be in writing and must be sent to the Secretary of the DDOE.
If a parent is requesting the due process hearing, the parent must send a copy of the Hearing Notice to the LEA at the same time the Hearing Notice is sent to the Secretary of the DDOE.
If the LEA is requesting the due process hearing, the LEA must send a copy of the Hearing Notice to the parent at the same time the Hearing Notice is sent to the Secretary of the DDOE.
The DDOE has developed a model Hearing Notice form. Copies are available by calling the DDOE at 302-735-4210. The use of the model form is not mandatory.
the DDOE receives the Hearing Notice. Content of Hearing Notice. The Hearing Notice must include:
The child’s name, the address of the child’s residence and the name of the school the child is attending. (In the case of a homeless child or youth, the Hearing Notice must include available contact information for the child, including the name of the school the child is then attending.);
A description of the child’s problem relating to the proposed or refused initiation or change, including facts related to the problem; and
A proposed resolution of the problem to the extent known and available to the party at the time the Hearing Notice is submitted.
Response to the Hearing Notice
Within 10 calendar days of receiving the Hearing Notice, the nonrequesting party must send the requesting party a response that specifically addresses the issues raised in the Hearing Notice. The LEA is not required to send such a response if the LEA already provided the parent with written prior notice (WPN).
If the LEA has not sent WPN to the parent regarding the issues raised by the parent, the LEA must, within 10 calendar days of receiving the Hearing Notice, send the parent WPN. The WPN must include:
an explanation of why the LEA proposed or refused to take the action raised in the Hearing Notice;
a description of other options that the IEP team considered and the reasons why those options were rejected;
a description of each evaluation procedure, assessment, record or report the LEA used as the basis for the proposed or refused action; and
a description of the factors that are relevant to the LEA’s proposal or refusal.
Providing the parent with such WPN shall not be construed to preclude the LEA from asserting that the parent’s Hearing Notice was insufficient where it is appropriate to do so, as noted below (“Challenging the Sufficiency of the Notice”).
The Secretary of the DDOE will appoint a 3-member hearing panel, typically within 3 business days of receiving the Hearing Notice. The Secretary will promptly notify the parent and the LEA of the appointment of the hearing panel and provide information about mediation as an alternative way of resolving special education disputes.
Challenging the Sufficiency of the Hearing Notice
A party may not have a due process hearing until the party, or the attorney representing the party, provides a Hearing Notice that contains the required content information (See “Content of Hearing Notice” above).
The 45-day timeline is suspended at this point. The Hearing Notice shall be deemed to contain the required content information unless the party receiving the Hearing Notice notifies the Chairperson of the hearing panel in writing within 15 calendar days of receiving the Hearing Notice that the Notice does not meet the content requirements.
Within 5 calendar days of receiving a party’s notification that the Hearing Notice is insufficient, the Chairperson of the hearing panel will determine from the face of the Hearing Notice whether the Notice meets the content requirements and notify the parties in writing of his or her determination.
If the Chairperson determines that the Hearing Notice is sufficient, the 45-day timeline recommences, including the timeline for the Resolution Session. The Resolution Session process is described below.
If the Chairperson determines that the Hearing Notice is insufficient:
the party amends the Hearing Notice IF the other party consents and has the opportunity to resolve the issues through a Resolution Session, OR
the Chairperson permits the party to amend the Hearing Notice (not later than 5 calendar days before the hearing occurs).
The 45-day timeline recommences at the time the party files the amended
Hearing Notice, including the timeline for the Resolution Session process.
Within 15 calendar days of receiving a parent’s Hearing Notice, the LEA shall convene a meeting of the parents and the relevant member or members of the IEP team who have specific knowledge of the facts identified in the Hearing Notice. This meeting is called a “Resolution Session.”
The 45-day timeline is suspended if both parties agree to the Resolution
Session. Recall also that the 45-day timeline is suspended if the sufficiency
agree to waive the Resolution Session, or agree to use the mediation
process. The parents and the LEA may agree in writing to waive the Resolution Session, or agree to use the mediation process offered by the University of Delaware’s Special Education Partnership for the Amicable Resolution of Conflict (SPARC). The parties should notify the Chairperson of the hearing panel of their decisions concerning the use of the Resolution Session and the mediation process.
The Resolution Session team shall include a representative of the LEA who has decision-making authority on behalf of the LEA.
The team shall not include the LEA’s attorney unless an attorney accompanies the parent.
During the Resolution Session, the parents should discuss their due process hearing request, and the facts that form the basis of the request, and the LEA must be provided the opportunity to resolve the hearing request.
If the parties resolve the issues raised in the Hearing Notice, the LEA and the parent shall develop a legally binding agreement that is:
enforceable in any Delaware court of competent jurisdiction or in a United States District Court.
The 45-day timeline recommences if the LEA has not resolved the issues to the satisfaction of the parties within 30 calendar days of the DDOE’s receipt of the Hearing Notice. The 45-day timelines recommences if either party voids the agreement within 3 business days.
Either party has 3 business days to void the agreement.
Extension of Timelines; Expedited Due Process Hearings
The Chairperson of a hearing panel may continue to grant specific extensions of the 45-day timeline for good cause and at the request of either party. The Chairperson must document extensions in writing, establish a new due date and notify the DDOE of both.
Hearing officers are reminded that State law also requires that a decision be issued within 15 days of the date of the hearing, or where applicable, within 15 days of the completion of post-hearing argument.
IDEA 2004 permits either a parent or the LEA to request an expedited due process hearing related to matters involving the discipline of a child with a disability. Examples of such situations include the result of a manifestation determination review or the placement of a child with a disability as a result of disciplinary action.
A single hearing officer is appointed to hear and decide expedited due process cases.
The hearing officer must schedule the expedited hearing within 20 school days of the date the DDOE receives the Hearing Notice for an expedited hearing.
The hearing officer’s decision must be sent to the parties within 10 school days after the hearing.
The required timelines for an expedited due process hearing may not be extended in any circumstance.
1 This document summarizes the requirements of the federal law passed by Congress and signed by the President. The United States Department of Education has also proposed changes to its regulations to meet the requirements of IDEA 2004. The USDOE’s proposed regulations are not binding, but may be helpful in suggesting ways to comply the reauthorized law.