NEW DUE PROCESS HEARING REQUIREMENTS

IDEA 2004

FOR HEARING REQUESTS FILED ON OR AFTER JULY 1, 2005

The Individuals with Disabilities Education Act was reauthorized and signed intolaw by the President on December 3, 2004. Most of its provisions, including those relatedto 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 panelmembers in implementing IDEA 2004 specific to the due process system. It addresses theimmediate steps that need to be taken when a due process hearing is initiated. The otherfederal and state regulations that govern the hearing process remain in effect.

This document includes a summary of the new requirements. Questions regardingthis information may be directed to:

  • MaryAnnMieczkowski, Director, Exceptional Children and Early Childhood

Education Group, DDOE, at 302-735-4210.

  • Maria Locuniak, Education Associate, Exceptional Children and Early

Childhood Education Group, DDOE, at 302-735-4210.

Abbreviations and terms used in this document:

LEA: local education agency (usually, a school district or charter school)

DDOE: Delaware Department of Education

WPN: written prior notice

Delaware Department of Education

Exceptional Children and Early Childhood Education Group

July 2005

Summary of IDEA 2004 Requirements

for

Due Process Hearings[1]

Effective: July 1, 2005

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 educationalplacement of a child with a disability, or the provision of a freeappropriate public education for the child.
  • A due process hearing is requested by filing a Hearing Notice. TheHearing Notice must be filed within 2 years of the date the parent or LEAknew or should have known about the alleged action that forms the basisof the request. Exceptions to the timeline apply if the parent was preventedfrom requesting the hearing due to:
  • specific misrepresentations by the LEA that it had resolved theproblem forming the basis of the complaint; or
  • the LEA’s withholding of information from the parent that wasrequired to the parent under the federal and state requirementsgoverning special education.
  • The Hearing Notice must be in writing and must be sent to the Secretaryof the DDOE.
  • If a parent is requesting the due process hearing, the parent mustsend a copy of the Hearing Notice to the LEA at the same time theHearing Notice is sent to the Secretary of the DDOE.
  • If the LEA is requesting the due process hearing, the LEA mustsend a copy of the Hearing Notice to the parent at the same timethe Hearing Notice is sent to the Secretary of the DDOE.
  • The DDOE has developed a model Hearing Notice form. Copies areavailable by calling the DDOE at 302-735-4210. The use of the modelform is not mandatory.

Content of Hearing Notice. The Hearing Notice must include:

  • The child’s name, the address of the child’s residence and the name of theschool the child is attending. (In the case of a homeless child or youth, theHearing 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 refusedinitiation or change, including facts related to the problem; and
  • A proposed resolution of the problem to the extent known and available tothe party at the time the Hearing Notice is submitted.

Response to the Hearing Notice

  • Within 10 calendar days of receiving the Hearing Notice, the nonrequestingparty must send the requesting party a response that specificallyaddresses the issues raised in the Hearing Notice. The LEA is not requiredto send such a response if the LEA already provided the parent withwritten prior notice (WPN).
  • If the LEA has not sent WPN to the parent regarding the issues raised bythe parent, the LEA must, within 10 calendar days of receiving theHearing Notice, send the parent WPN. The WPN must include:
  • an explanation of why the LEA proposed or refused to take theaction raised in the Hearing Notice;
  • a description of other options that the IEP team considered and thereasons why those options were rejected;
  • a description of each evaluation procedure, assessment, record orreport 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 proposalor refusal.
  • Providing the parent with such WPN shall not be construed topreclude the LEA from asserting that the parent’s Hearing Noticewas insufficient where it is appropriate to do so, as noted below(“Challenging the Sufficiency of the Notice”).

Appointment of Hearing Panel

  • The Secretary of the DDOE will appoint a 3-member hearing panel,typically within 3 business days of receiving the Hearing Notice. TheSecretary will promptly notify the parent and the LEA of the appointmentof the hearing panel and provide information about mediation as analternative 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 attorneyrepresenting the party, provides a Hearing Notice that contains therequired content information (See “Content of Hearing Notice” above).
  • The Hearing Notice shall be deemed to contain the required contentinformation unless the party receiving the Hearing Notice notifies theChairperson of the hearing panel in writing within 15 calendar days ofreceiving the Hearing Notice that the Notice does not meet the contentrequirements.
  • Within 5 calendar days of receiving a party’s notification that the HearingNotice is insufficient, the Chairperson of the hearing panel will determinefrom the face of the Hearing Notice whether the Notice meets the contentrequirements and notify the parties in writing of his or her determination.
  • If the Chairperson determines that the Hearing Notice is sufficient, the45-day timeline recommences, including the timeline for the ResolutionSession. 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 consentsand has the opportunity to resolve the issues through a ResolutionSession, OR
  • the Chairperson permits the party to amend the Hearing Notice (not later than 5 calendar days before the hearing occurs).

Resolution Session

  • Within 15 calendar days of receiving a parent’s Hearing Notice, the LEAshall convene a meeting of the parents and the relevant member ormembers of the IEP team who have specific knowledge of the factsidentified in the Hearing Notice. This meeting is called a “ResolutionSession.”
  • The parents and the LEA may agree in writing to waive the ResolutionSession, or agree to use the mediation process offered by the University ofDelaware’s Special Education Partnership for the Amicable Resolution ofConflict (SPARC). The parties should notify the Chairperson of thehearing panel of their decisions concerning the use of the ResolutionSession and the mediation process.
  • The Resolution Session team shall include a representative of the LEAwho has decision-making authority on behalf of the LEA.
  • The team shall not include the LEA’s attorney unless an attorneyaccompanies the parent.
  • During the Resolution Session, the parents should discuss their dueprocess hearing request, and the facts that form the basis of the request,and the LEA must be provided the opportunity to resolve the hearingrequest.
  • If the parties resolve the issues raised in the Hearing Notice, the LEA andthe parent shall develop a legally binding agreement that is:
  • signed by both the parent and a representative of the LEA who hasthe authority to bind the LEA; and
  • enforceable in any Delaware court of competent jurisdiction or in aUnited States District Court.
  • 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 specificextensions of the 45-day timeline for good cause and at the request ofeither 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 decisionbe 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 dueprocess hearing related to matters involving the discipline of a child with adisability. Examples of such situations include the result of amanifestation determination review or the placement of a child with adisability as a result of disciplinary action.
  • A single hearing officer is appointed to hear and decide expediteddue process cases.
  • The hearing officer must schedule the expedited hearing within 20school days of the date the DDOE receives the Hearing Notice foran expedited hearing.
  • The hearing officer’s decision must be sent to the parties within 10school days after the hearing.
  • The required timelines for an expedited due process hearing maynot be extended in any circumstance.

1

Delaware Department of Education July 2005

[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.