Due Process Hearings
by Robert K. Crabtree

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Powerful but Costly

Please note: Every state's due process system for deciding special education disputes is different, though there are many common elements. This commentary addresses general themes in special education law and process. Before taking any steps, parents should find out what particular law and process applies where they live.

Every state has a system for impartial hearing officers to decide whether an Individualized Educational Plan (IEP) that has been rejected by parents meets the legal requirements under IDEA and the state's own special education laws. Special education hearings are generally run like trials in civil courts, but are less formal. Procedural and evidentiary rules that apply in courtrooms are more loosely applied in these proceedings. Hearings are run by hearing officers who are independent of both the school system and the state educational agency responsible for administering special education programs in the state.

As in a civil trial, the party (usually the parents) who raised the issue being tried must proceed first. They introduce documents and oral testimony to make their case. Each of their witnesses is subject to cross-examination by the other party and to questioning at any time by the hearing officer. The responding party (usually the school system) then introduces its witnesses, who in turn may be cross-examined by the other party and questioned by the hearing officer. At the end of the responding party's case, the other party may introduce evidence to rebut new points that have been raised by the responding party.

An official record is made of the proceeding. To date, such records have normally been made by tape recorder and only occasionally by a court reporter. Recent amendments to IDEA allow parents to choose whether proceedings will be recorded orally or in a written record. A court reporter's record of a hearing is generally more accurate and easier to use on appeal than a tape recording, so if parents are given the choice under the new provision, they should ordinarily request that a written record be made.

Arguments can be made both at the opening of a party's presentation and at the end of the hearing. Usually closing arguments are presented in writing a week or two after the last day of the hearing. The hearing officer then writes his or her decision, which either party can appeal to federal or state court.

Over the years since IDEA became effective, due process hearings have become increasingly sophisticated, complex and costly. They have always been stressful, as parents' passion to meet their children's needs collide with educators' professional pride in their programs and a commitment to keep special education costs within budget. They have also served as a battle ground for competing educational philosophies (as for example between "inclusion" on the one hand and more intensive and separate services on the other). Too often, personality conflicts between parents and school officials take precedence over the needs of the child. At their best, however, hearings give parents a level playing field to challenge school systems that want to avoid providing appropriate services because of cost or misguided educational philosophy.

Before they decide to proceed to hearing, parents should educate themselves as much as possible about the specific issues in their case and the ways cases similar to theirs have been decided. They should evaluate whether they have the strong, believable expert testimony they will need to support their case, and they should consider the tangible and intangible consequences of proceeding through hearing, even if they win. For example, parents of very young children need to remember that they have many years ahead of them in the school system and should consider whether their ability to work for their child's best interests over those years will be improved or undermined by taking the school system to a hearing. Is the particular issue in dispute worth it? A satisfactory result achieved through negotiation is certainly preferable. On the other hand, many families who have demonstrated their willingness to use the hearing process have found that their views are treated with greater respect in the future.

Although parents may represent themselves in these proceedings, it is usually wiser to engage an attorney or advocate who is experienced with special education litigation. If parents prevail, they are entitled under IDEA to recover all or part of their attorney's fees and expenses from the school system. (Note that recent changes in IDEA will restrict the recovery of fees in certain cases. Also note that current case law bars fee awards for non-lawyer advocates under IDEA.)

Starting the Process

If parents are not satisfied with the educational plan offered by their school system, they can reject the IEP in whole or in part. (They can also request independent evaluations.) If they reject only portions of the IEP, the school system must immediately implement the undisputed parts.

Parents must decide where and how their child will be educated while they are contesting the school system's plan. If they have the means to do so, parents can place their child in an alternative program. If they later succeed in winning an order or agreement for that placement, parents can have the school system pay them back for the costs of that placement in addition to recovering attorney's fees and costs as the prevailing party. (Note that an important recent amendment to IDEA alters this right. It requires parents to declare their intent to place their child at an alternative school either at a TEAM meeting or in writing ten days before they make that placement. They must also state why they think the public school's program is inadequate and indicate their intent to seek funding from the public school. This new provision is poorly drafted and will likely be the subject of much litigation to clarify its scope and meaning.)

More often, however, either because parents prefer to have their child remain in the public school (even in a flawed program) or do not have the means to move their child to an alternative placement, the child must stay where s/he is while the parties try to resolve their dispute. While a student is entitled to "stay put" in his/her last agreed-upon placement pending the outcome of proceedings over the rejected IEP, in many cases it does not make sense to keep the student in that placement. If the school system's new IEP would provide significantly more or different services to the student, in most cases the parents should agree to try the new services pending the hearing. Parents may be at a disadvantage at a hearing if the student hasn't at least tried the new program; the school system will simply argue that the new program would have worked if only the student had tried it, and parents will be hard-pressed to prove otherwise unless their experts have observed the untried program and can clearly show that it would be completely inappropriate.

What about mediation

Due to a recent amendment to IDEA, every state is required to have a mediation process available to attempt to resolve disputes without going through a hearing. Mediation is already available in many states.

In mediation, parties meet with a trained mediator, who has no stake in the outcome of the dispute. The mediator will help the parties articulate their positions and work with each side - often in separate rooms - to attempt to find a middle ground for compromise. In order to promote free discussion, statements made and offers extended during the mediation session may not be used in evidence at a hearing. If the process is successful, an agreement is written and signed and, usually, incorporated into an amended IEP. Under the new IDEA provision, parents can choose not to participate in mediation and to go directly to hearing, but they must at least be given information about mediation and its potential advantages.

In our experience, mediation can be a very effective way to resolve issues if the parties are already close enough in their positions to make it worthwhile. Thus, where the parents are seeking only a few more services within the public school program, mediation is often worth a try. Where they seek an outside placement, however, mediation has less chance of succeeding, unless they have a very strong case and the primary barrier to resolution has been inattention by the special education administrator.

Done right, mediation can be a healthy way to find a compromise, leaving each party with their dignity, achieving improved services for the child, and allowing the parties to channel their energies into making a program work rather than litigating. Where it is unsuccessful, mediation can delay resolution of the dispute and, in some cases, simply intensify the hard feelings between school and family. To avoid delay, it often makes sense to schedule and prepare for a hearing even while going to mediation.

An alternative to mediation in some cases may be to schedule a pre-hearing conference with the hearing officer. Such meetings are used primarily to give the hearing officer a summary of the parties' positions, deal with any pre-hearing disputes over document discovery and the like, and address pre-hearing motions. Some hearing officers are good at using such conferences as an opportunity to promote settlement. Because they will ultimately decide the case, hearing officers can sometimes be more persuasive than a mediator in urging a party to compromise. By the same token, hearing officers will sometimes avoid getting into such discussions at all lest they be viewed as prejudging the matter.

What standards do hearing officers apply to IEP's?

In most states, the quality of educational programs and services offered in IEPs is governed by the minimal standards set forth in IDEA. The U.S. Supreme Court in Board of Education v. Rowley, 458 U.S. 176 (1982), said that federal special education law requires only that a special education program be reasonably calculated to provide a child with a disability some "educational benefit." That benefit is to be provided in the least restrictive environment - the setting closest to the regular mainstream classroom - where the student can make real educational progress.

In some states, the minimal federal standard gives way to a higher standard established in the particular state's special education laws. In Massachusetts, for example, a student with special educational needs is entitled to a program that offers him or her the opportunity to progress to the maximum feasible extent consistent with his or her potential. Hearings in Massachusetts are often centered on resolving the constant tension between a student's right to maximum feasible development and his/her right to be educated in the least restrictive appropriate educational setting. (The special education community needs to be vigilant in defense of the higher standard in such states, because some groups look to blame municipal budget problems on the cost of providing extra services to students with special education needs.)

Preparing and presenting

Simplicity is best. Try to reduce the many complex and detailed issues that are in dispute to a few simple themes. A case is more compelling if the hearing officer can see that the major issue s/he has to decide can be summarized in a few simple phrases.

The hearing officer's job in most cases is to decide about the current and future placement only. Evidence about past failures in the school program may be relevant to this and other important issues in the case, but don't expect to win because of past events. You have to show that the newly offered program will be inadequate.

Stick to the main points. One way to keep it simple and make a more persuasive case is to weed out the "throw-away" arguments and evidence. hearing officers always spot - and, given their busy schedules, are often merely annoyed by -- the weaker arguments. You will be taken more seriously if you show that you know enough to ask only for consideration of the central issues of the case.

Prepare documents as exhibits in a clear understandable order. Usually a chronological presentation is more effective than trying to divide exhibits by categories. The first numbered exhibit should be the IEP which is in dispute, but everything after that should be chronological, with the most recent documents at the top.

Omit irrelevant and/or borderline evidence. Hearing officers don't need to see every document that was ever created around a child's needs. Omit particularly the old, out-of-date documents and redundant evidence (for example, two witnesses who viewed a classroom simultaneously don't need to repeat each other's testimony).

Use strong and credible experts as your witnesses. As we discussed in an earlier article concerning independent evaluators, make sure you find someone with a solid reputation who will follow through with you as needed.

Schedule all necessary evidence-gathering steps well before the hearing begins. This includes obtaining the full student record; having the school system's program and any alternative program(s) that might be considered at the hearing observed by your expert(s); making sure all relevant testing is up to date; and obtaining all other records that may help.

Use (but don't abuse) the available discovery procedures. Usually the rules and procedures for due process hearings allow parties to obtain documents and written answers to a limited number of questions ("interrogatories") prior to the hearing. It is often very useful to request copies (with names blacked out) of the IEPs of other students with whom the school system plans to group the child in question. It also helps to see materials that describe the program, its curriculum, behavioral plans, and other documents that will help clarify the school's offering. It is useful, too, to obtain resumes and other information about the teachers and other service providers who are proposed to work with the child. Remember that anything parents request of the school system will most likely be asked of them as well, particularly if they seek an outside placement. (It is important to ensure that the outside placement will cooperate in providing information, even though they are not a "party" in the proceeding. Hearing officers will certainly hold a failure to provide information against the parents.)

Evaluate who should testify besides the expert witnesses. Remember that the parent's testimony is generally relevant as observation of the child's behavior and apparent progress, what has happened at TEAM meetings and in other communications with school personnel, what exactly the parent is seeking, and so forth. The parent's testimony will not generally be accepted as opinion evidence concerning the child's special educational needs, however. The parent is usually not qualified as an "expert" witness. Consider also whether the student him/herself should, or can, testify. Hearing officers often want to hear, especially from an older student, if s/he is cognitively intact.

Watch the hearing officer closely. S/he will often give signals through her questions or statements of what s/he considers critical in the case and/or his or her leanings. Sometimes the signals are strong enough to influence a party to reconsider their willingness to settle the case by compromise.

Most special education disputes can and should be settled. There is no such thing as a guaranteed victory in the hearing process. Neither parents nor school systems will necessarily be happy with the results of a negotiated settlement - in fact one mark of a successful settlement is that each party leaves the table feeling less than triumphant, though each party does leave with their dignity intact. Consider all pieces of the case as potential chips in settlement negotiations and develop a clear, prioritized list of issues. Be prepared to give up something significant to obtain the major objective. (If you are seeking an outside placement, can you provide transportation in return for tuition? Can you cost-share the placement?) Negotiate through an attorney or advocate if possible, so that you have time to think about proposals and won't react too quickly in a face-to-face discussion.

Above all

These considerations are all aimed at helping parents consider the litigation process that becomes available when they reject an IEP. All these thoughts aside, however, parents should not let only the strategic and tactical concerns of litigation drive their decisions for their child. Where his or her health, safety and well-being are concerned, litigation consequences need to take a back seat. But if a parent does consider taking steps that might undermine their position before a hearing officer, it would be wise to think the strategy through with an experienced attorney or advocate first, both to be sure the parent has fully assessed his/her legal position and to minimize the negative consequences, if any, of the action.