Due Process Complaint & Due Process Hearing

It is a complaint filed by a parent or school district when there is a conflict related to the proposal of a specific change OR when there is a refusal to initiate a specific change. These changes might include:

• A child’s identification
• A child’s evaluation
• The provision of a free and appropriate public education
• A child’s educational placement

Prior to filing a complaint, it is best to try to work the dispute out at a local level. This means working with your child’s teacher and education team. This can be accomplished through IEP meetings or through less formal team meetings. Document your concerns in writing to your child’s team and try to reach a resolution. If you have attempted these things without a resolution, you may consider filing a Due Process Complaint.

When Due Process Cannot Be Used

The district cannot use due process when:

• The student is parentally-placed private school student and the parent has ignored or refused a request for consent for an initial evaluation ore reevaluation
• The parent has refused to give consent for the initial provision of special education and related services
• The parent has revoked their consent for special education and related services

Parent cannot use due process when:

• The chief complaint is that a teacher is not highly qualified.
  (You may file a child complaint in this instance instead)

What is a Due Process Complaint?

It is a complaint filed by a parent or school district when there is a conflict related to the proposal of a specific change OR when there is a refusal to initiate a specific change. These changes might include:

• A child’s identification
• A child’s evaluation
• The provision of a free and appropriate public education
• A child’s educational placement

Prior to filing a complaint, it is best to try to work the dispute out at a local level. This means working with your child’s teacher and education team. This can be accomplished through IEP meetings or through less formal team meetings. Document your concerns in writing to your child’s team and try to reach a resolution. If you have attempted these things without a resolution, you may consider filing a Due Process Complaint.

When Due Process Cannot Be Used

The district cannot use due process when:

• The student is parentally-placed private school student and the parent has ignored or refused a request for consent for an initial evaluation ore reevaluation
• The parent has refused to give consent for the initial provision of special education and related services
• The parent has revoked their consent for special education and related services

Parent cannot use due process when:

• The chief complaint is that a teacher is not highly qualified.

(You may file a child complaint in this instance instead)

Filing a Due Process Complaint

Forms can be found on the Missouri Department of Elementary and Secondary Education website in the compliance section. https://dese.mo.gov/special-education/compliance. The complaint must be sent to Department of Elementary and Secondary Education (DESE) and a copy of the complaint must also be sent to the responsible public agency.

NOTE: The complaint must allege a violation that occurred not more than 2 years from the date that the parent (or public agency) knew (or should have known) about the alleged action. The 2 year timeline does not apply if the public agency specifically misrepresented that it had resolved the issues brought up tin eh complaint or the agency withheld information that it was required to provide.

What to Include in a Complaint

The complaint must include:

• Name of the child
• Address of child’s residence
• Name of school child is attending.
• Description of the nature of the problem of the child relating to the proposed or refused action, including facts relating to the problem
• Proposed resolution of problem to the extent known and available at the time

Who Reviews the Complaint?

The Administrative Hearing Commission must decide if the complaint meets the requirements to move forward. The complaint will be considered Sufficient unless the public agency (or the parent if the district filed the complaint) notifies the Administrative Hearing Commission and the other party, in writing, within 15 calendar days of receiving the complaint that they feel the complaint does not meet content requirements.

The Administrative Hearing Commission must notify the parent and public agency of their decision, in writing, within 5 calendar days of receiving a notification of insufficiency.

Amendment of Complaint

Either party may make changes to the complaint if:

• The other party approves the changes, in writing, and is given a chance to resolve the dure process complaint through a resolution meeting.

• By no later that 5 days before the due process hearings begin, the Administrative Hearing Commission grants permission for the changes.

If the complaining party makes changes to the dure process complaint, the timelines for the resolution meeting and the time period for resolution start again on the date the amended complaint is filed.

What Happens Next?

The Department of Elementary and Secondary Education, Division of Special Education, Compliance Section must take the following steps once they receive a due process complaint:

• Forward the complaint to the Administrative Hearing Commission (within 2 days of receiving the complaint)
• Send a letter to the parent informing them about the option of Mediation, and enclose the following:
  • a copy of the procedural safeguards
  • Mediator List
  • Mediation booklet
  • a list of free or low-cost legal services

  The public agency must take the following steps, once they receive a due process complaint:

  • If the public agency has not sent a prior written notice to a parent regarding the subject matter contained in their due process complaint, the public agency must, within ten (10) calendar days of receiving the due process complaint, send a response to the parent and the Administrative Hearing Commission that includes:
    • an explanation of why the public agency proposed or refused to take the action raised in the due process complaint.
    • a description of other options that the child’s individualized education program (IEP) Team considered and the reasons why those options were rejected.
    • a description of each evaluation procedure, assessment, record, or report the public agency used as the basis for the proposed or refused action.
    • a description of the other factors that are relevant to the public agency’s proposed or refused action.

    The responsible public agency shall notify the Department of Elementary and Secondary Education (DESE) and the Administrative Hearing Commission of the date of the resolution meeting and the result or that a decision was made not to hold a resolution meeting.

    Due Process Hearing

    What is a Due Process Hearing?

    A Due Process Hearing is the most formal option when looking at dispute resolution. It is a formal hearing where an impartial, trained hearing officer hears the evidence and issues a hearing decision. This offers the district and parent an opportunity to present their case in a formal legal setting using witnesses, testimony, documents, and legal arguments. The district and the parent share information that they believe is important for the hearing panel to understand the issues in the hearing. Because this is a legal proceeding, school districts and parents often choose to be represented by an attorney.

    The following are the sections in IDEA that address the provisions of Due Process:

    • 300.511 Impartial Due Process Hearing
    • 300.512 Hearing Rights
    • 300.513 Hearing Decisions
    • 300.514 Finality of Decision, Appeal, Impartial Review
    • 300.515 Timelines and Convenience of Hearings and Review
    • 300.516 Civil Action
    • 300.517 Attorneys’ Fees
    • 300.518 Child’s Status During Proceedings

    A Due Process Hearing is the most formal option when looking at dispute resolution. It is a formal hearing where an impartial, trained hearing officer hears the evidence and issues a hearing decision. This offers the district and parent an opportunity to present their case in a formal legal setting using witnesses, testimony, documents, and legal arguments. The district and the parent share information that they believe is important for the hearing panel to understand the issues in the hearing. Because this is a legal proceeding, school districts and parents often choose to be represented by an attorney.

    The following are the sections in IDEA that address the provisions of Due Process:

    • 300.511 Impartial Due Process Hearing
    • 300.512 Hearing Rights
    • 300.513 Hearing Decisions
    • 300.514 Finality of Decision, Appeal, Impartial Review
    • 300.515 Timelines and Convenience of Hearings and Review
    • 300.516 Civil Action
    • 300.517 Attorneys’ Fees
    • 300.518 Child’s Status During Proceedings

    At a minimum a hearing officer:

    • Must not be an employee of the State Education Agency (SEA) or the Local Education Agency (LEA) involved in the education or care of the child; or
    • Must not have a personal or professional interest that conflicts with their objectivity in the hearing;
    • Must possess knowledge of, and the ability to understand, the provisions of IDEA, Federal and State regulations, and legal interpretations of IDEA by State and Federal courts;
    • Must possess the knowledge and ability to conduct hearings in accordance with appropriate, standard legal practice.

    The Department of Elementary and Secondary Education, Division of Special Education Compliance department keeps a list of qualified hearing officers as well as information regarding their qualifications. If you are considering filing a due process complaint, it would be a good idea to request this list (and/or a list of qualified mediators) prior to filing. This would give you time to review the list prior to filing your complaint.

    You have 10 calendar days to chose and hearing officer, contact them, and determine whether or not they are available to participate in your due process hearing. If you are not able to find a hearing officer within the 10 days, the Department of Elementary and Secondary Education (DESE) will appoint one for you.

    Both you and the school district have the right to:

    • Be accompanied and advised by counsel and by individuals with special knowledge or training with respect to the problems of children with disabilities;
    • Present evidence and confront, cross-examine, and compel the attendance of witnesses;
    • Stop any evidence from being introduced at the hearing that has not been disclosed to that party at least five business days before the hearing;
    • Receive a written, or at the option of the parents, electronic, verbatim record of the hearing; and
    • Receive a written, or at the option of the parents, electronic findings of fact and decisions.

    At least five days business days before a hearing is conducted pursuant to §300.511(a), each party must disclose to all other parties all evaluations completed by that date and recommendations based on the offering party’s evaluations that the party intends to use at the hearing. The hearing officer may bar any party that fails to comply with the five business day disclosure rule from introducing the relevant evaluation or recommendation at the hearing without the consent of the other party.

    Parents are also given these additional rights in due process hearings:

    • The right to have the child who is the subject of the hearing present;
    • The right to open the hearing up to the public; and
    • The right to have a record of the hearing and the findings of fact and decisions provided to them at no cost.

    IDEA does not mention the burden of proof. However, the Supreme Court, in Shaffer v. Weast (2005) has held that unless state law assigns burden of proof differently, it is typically the party who requests the hearing that will have the burden of proving their case.

    It is the hearing officer’s job to consider each party’s argument, evidence, and witnesses, while considering what IDEA, state law, federal and state regulations require, as well as legal interpretations of IDEA by state and federal courts. The hearing officer must possess the knowledge and ability to conduct hearings in accordance with appropriate, standard legal practice. §300.513(a) states:

    Decision of hearing officer on the provision of FAPE.

    1. Subject to paragraph (a)(2) of the section, a hearing officer’s determination of whether a child receives FAPE must be based on substantive grounds.
    2. In matters alleging a procedural violation, a hearing officer may find that a child did not receive a FAPE only if the procedural inadequacies –
       • Impeded the child’s right to FAPE;
       • Significantly impeded the parent’s opportunity to participate in the decision-making process regarding the provision of a FAPE to the parent’s child; or
       • Caused a deprivation of educational benefit.
    3. Nothing in paragraph (a) of this section shall be construed to preclude a hearing officer from ordering an LEA to comply with procedural requirements under §300.500 through §300.536.

    The State Education Agency (SEA) must ensure that not later than 45 calendar days after the expiration of the 30-calendar-day period for resolution meetings or, not later than 45 calendar days after the expiration of the adjusted time period:

    1. A final decision is reached in the hearing; and
    2. A copy of the decision is mailed to each of the parties.

    A hearing officer may grant specific extensions of time beyond the 45-calendar-day time period at the request of either party.

    Each hearing must be conducted at a time and place that is convenient to you and your child.

    The hearing officer’s decision can be appealed. However, if no appeal is made their decision is final.

    Missouri is considered a ‘one-tier’ state. The due process hearing is conducted at the state level and as such if one of the parties disagrees with the hearing officer’s decision the only ‘appeal’ will be for the party to bring civil action in an appropriate state or federal court.

    The party appealing the due process decision has 45 calendar days from the date the decision of the hearing officer to file a civil action.

    In any civil action, the court:

    1. Receives the records of the administrative proceedings.
    2. Hears additional evidence at your request of the school district’s request; and
    3. Bases its decision on the preponderance of evidence and grants the relief that the court determines to be appropriate.

    It’s also important to note that IDEA sets forth a “rule of construction” that addresses civil actions. Under this rule of construction, a dissatisfied party may have remedies available under other laws that overlap with those available with IDEA (e.g., U.S. Constitution, Americans with Disabilities Act, Title V of the Rehabilitative Act of 1973). However, in general, to obtain full relief under those other laws, the dissatisfied party must first use the available administrative remedies under IDEA (e.g., due process complaint, resolution meeting, due process hearing) before going directly into court.