What is Due Process?

In the world of special education, DUE PROCESS is like a mini trial. One party “files due process” against the other, and then there is a hearing with witnesses and evidence presented. An Independent Hearing Officer (IHO) is appointed by the Ohio Department of Education to hear the case and decide who wins and what they get. Either party can appeal the decision to state court.

Due process is available to any student with a disability who has an Individual Education Program (IEP). It is also available where a school district refuses to evaluate a student to see if they qualify for special education and related services.

Typically, it’s the parents of a child with special needs who will initiate a due process proceeding against a school district, but there are some rare situations in which the district will file due process against the parents. The individuals filing due process–again, this is typically the parents–have the burden of proof. This means that they have to prove to the IHO that Individuals with Disabilities Education Act (IDEA) laws have been violated and that their child is entitled to something from the district. For this reason, and some others, the proceedings are stacked in favor of the district.

The trend we are seeing in due process matters is that the IHO will “split the baby,” meaning that they may find that the school district did not provide a free appropriate public education (FAPE), but instead of requiring the district to pay for the child to attend a private/special school in future years, it might order the district to do a better job of educating the child within the district (improving goals, increasing interventions, adding an aide, training teachers, etc.).  The only monetary award available in due process comes in the form of repayment. If, for example, the family placed their child at a private school because the public school was not offering a FAPE, an IHO could order the district to reimburse the family for the tuition and expenses they paid for the private school. Other remedies available through due process include things such as increased services, one-on-one aide, methodologies like ABA or Wilson, and compensatory services.  For example, the district should have provided speech therapy last year, but didn’t, so the IHO orders the district to provide those speech therapy services now, doubling the amount of therapy the child receives this year.

Once due process is filed, the district has to hold a Resolution Session to try to work things out. Often, when lawyers are involved, this session is waived because the parties do not believe it will be beneficial. At the point that due process is filed, the parties have already, presumably, tried (unsuccessfully) to work things out.

When the resolution session is waived, the parties can agree to participate in mediation with a mediator through the Ohio Department of Education. The mediator tries to make sure that everyone is heard and tries to facilitate a compromise, but there is no obligation to reach an agreement by the end of the mediation. If they are able to reach an agreement, a mediation agreement will be signed by the parties and the due process action will be dismissed. If not, they proceed to due process. It’s significant to note that the vast majority of due process complaints that are filed actually end up settling before a hearing or before a decision is made by the IHO.

Due process is not something to enter into lightly–it is very costly, time consuming, and emotionally draining for the family. However, sometimes it’s the only option when a school district refuses to provide appropriate and legally required services to the child.

If you are interesting in reviewing some of the due process cases that have made it through to a decision, you can access them here.

Posted in Blog, Special Education.