Due Process Hearing
A Due Process Hearing is a formal hearing where an impartial, trained hearing officer hears the evidence and issues a hearing decision. The hearing offers the district and the 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 consider in order to decide the issues in the hearing. Because this is a legal proceeding school districts and parents often choose to be represented by an attorney.
A Due Process Hearing is the most formal option when looking at dispute resolution. Whether or not you’ve tried other resolution options and were unsuccessful, or you chose to waive those options and went straight to the due process hearing, timelines for holding a due process hearing and resolving the dispute have begun.
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
Click on any question below to view answers to questions that parents most frequently ask us.
What qualifications must a hearing officer have?
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.
I have the list of Hearing Officers, now what?
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.
Is there a timeline for requesting a Due Process Hearing?
What rights do the school district and I have in a Due Process Hearing?
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.
Who has the burden of proof in Due Process Hearings?
IDEA is silent on the issue of 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.
What does the Hearing Officer base their decision on?
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.
- 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.
- 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.
- 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.
What is the timeline for issuing the hearing decision?
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:
- A final decision is reached in the hearing; and
- 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.
Can the Hearing Officer's decision be appealed?
Yes, 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.
What timeline is involved in filing an appeal?
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:
- Receives the records of the administrative proceedings;
- Hears additional evidence at your request of the school district’s request; and
- 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.