Sometimes, despite the best and thorough efforts of school employees, parents of students receiving special education services will file a request for a due process hearing (usually known as a “due process complaint”). When faced with a due process complaint, potential confusion with the labyrinth of procedures within the Individuals with Disabilities Education Act (IDEA) combined with exhaustion from the investment of time and energy spent seeking to serve a student can morph into anxiety for school districts. But anxiety need not result in panic, and this checklist of considerations may help school districts be intentional and focused on the student even when needing to respond to a due process complaint.
✓ Know the Deadlines. A school district must send a written response to a parent within 10 calendar days of the filing of the due process complaint with the Oregon Department of Education (ODE). This includes weekends and holidays, so it is a quick turnaround.
✓ Understand the Requirements of Stay Put. Stay Put means what it sounds like, and it is immediate once a due process complaint is filed; the failure to provide stay put could lead to a separate legal claim. A student must remain in the same educational placement as before the complaint was filed. This means the school district must continue to offer the student the same special education placement; typically, this means the student will also attend the same school with the same services and supports. That said, parents and school districts can agree to a different placement. And, in limited circumstances related to safety, a school or an Administrative Law Judge (ALJ) may place a student in a temporary interim alternative placement.
✓ Marshall the Documents. There are a lot of documents involved in special education and files can be thick. The person drafting the response will need to review key documents (IEPs, FBAs, BSPs, progress reports, meeting notes, and disciplinary records). As a result, it is helpful for a school district to spend time putting together a well-organized internal filing system for students receiving special education services that catalogs and chronologically stores these documents. This year-round file management will save considerable time in responding to due process complaints by making it easier and quicker to gather the documents needed.
✓ Assess the Sufficiency of the Complaint. Not every complaint is legally sufficient, meaning it may not be clear what the parents are seeking due process for and what solution they are proposing. The school district can challenge the sufficiency up to 15 days after filing; after that time, the due process complaint is deemed sufficient. It is helpful to ensure that the parties are mutually aware of the parents’ specific claims and requests to assist in effective resolution of the issues.
✓ Contemplate a Resolution Session or Mediation. The parties must participate in a resolution session (scheduled and conducted by the school district) within 15 days of filing a request. Parents and/or the school district, however, can waive the resolution session or opt for mediation with a mediator provided by ODE. Both a resolution session and mediation can be valuable steps in the process. While filing for due process changes the nature of the conversation, when a student remains a student at the school district, there can be value on all sides of recommitting to working together to find a solution. An outside mediator can be an excellent resource in helping the parties see things in new ways. And, a mediation session might bring different professionals from the school district into the discussion who can look at situations with fresh eyes, finding solutions that may not have been contemplated earlier.
✓ Be Mindful of Statute of Limitations Issues. Requests for due process should be filed within two years of the acts that give rise to the alleged violations of IDEA. Like many issues in IDEA, though, placing when the act occurred can be subject to some analysis. That said, typically, there is a two-year look-back period.
✓ Respond to the Complaint. Due process complaints vary in length and detail. A school district’s response is an opportunity to frame the issues in a manner that responds to the due process complaint but provides support for its decisions. A school district should carefully consider the tone of the letter, particularly as it likely will be sent to the parent before a resolution session or mediation is held. Language expressing an openness to continued conversation combined with thoughtfully reasoned explanations for the specific actions the school district took provides an opportunity to work together before a resolution session or mediation takes place.
✓ Reach Out for Help. Often, school districts seek legal counsel to assist with defending due process complaints and preparing the response, particularly when they involve complicated legal issues. Or sometimes the day-to-day demands of a school district’s special education team may not leave sufficient time to prepare a response within the tight timeframe. Whatever the reasoning, we are here to help review a draft, provide answers to discrete questions, prepare the response in its entirety, and represent the school district through the litigation. Don’t hesitate to ask!
This article is provided for informational purposes only—it does not constitute legal advice and does not create an attorney-client relationship between the firm and the reader. Readers should consult legal counsel before taking action relating to the subject matter of this article.
