What is a Due Process Complaint?
A Due Process Complaint is a form of alternative dispute resolution. It is an informal administrative hearing on a special education issue that is not agreed upon between a student’s parent (or an adult student), and the school district. An impartial Hearing Officer is assigned to hear testimony, receive evidence and render a decision. Before filing a due process complaint notice, parties are encouraged to use less formal means of resolving their differences, such as parent conference or mediation, whenever possible.
1. Who may file a Due Process Complaint?
A due process complaint may be filed by the local educational agency (LEA) or the parent (or an adult student). 34 CFR § 300.307. A parent is defined to include a natural, adoptive, or foster parent, a guardian, an individual acting in the place of a natural or adoptive parent (including a grandparent, step parent, or other relative) with whom the child lives, an individual who is legally responsible for the child’s welfare, or a surrogate parent. 34 CFR § 300.30. A student 18 years or older may file the request on their own. 34 CFR § 300.507, 34 CFR 300.520(a)(1)(ii)
2. What is the subject matter of a due process complaint?
A Due Process Complaint involves the proposal or refusal to initiate or change the identification, evaluation, or educational placement of a child with a disability or the provision of a free and appropriate public education (FAPE) to the child. 34 CFR § 300.507(a)
The due process complaint must allege a violation that occurred not more than two (2) years before the date the parent or agency knew or should have known about the alleged action that forms the basis of the complaint. 34 CFR § 300.507(a)(2) The two-year timeline shall not apply to a parent if that parent was prevented from requesting the hearing due to (i) specific misrepresentations by the LEA that it had resolved the problem forming the basis of the complaint; or (ii) the LEA’s withholding of information from the parent that was required under IDEA Part B to be provided to the parent. 34 CFR § 300.511(f)
3. What are the general time frames for a hearing?
When a party desires to request a due process hearing, the party must file a Due Process Complaint Notice. This Notice states all the issues that are to be discussed at the hearing and other information regarding the student. Upon receiving the Notice, the parties enter into a Resolution Session time period of 30 calendar days. If all matters are resolved in the Resolution Session, then the parties enter into a legally binding agreement and the matter does not proceed to hearing. If any issue remains at the end of the resolution time period, the due process hearing time frame begins to run and a decision on all remaining issues must be rendered within 45 calendar days or upon the proper extension of the time by the Hearing Officer.
The Resolution Session is mandatory unless both parties waive the time period in writing. If the LEA is unable to obtain the participation of the parent in the resolution meeting after reasonable efforts have been made and documented, the LEA may, at the conclusion of the 30-day period, request that the hearing officer dismiss the parent’s or adult student’s due process complaint. If the LEA fails to hold the resolution meeting within 15 days of receiving notice of a parent’s or adult student’s due process complaint notice or fails to participate in the resolution meeting, the parent may seek the intervention of the hearing officer to begin the due process hearing timeline. 34 CFR § 300.510(b)(4-5).
Expedited hearings have a different timeline. See question 4 below.. 34 CFR § 300.515
4. Can the hearing be expedited?
The timeframe of a hearing may be expedited on certain issues. The parent of a child with a disability who disagrees with any decision regarding placement in an alternative setting or the decision regarding a manifestation determination, or an LEA believes maintaining the current placement of the child is substantially likely to result in injury to the child or to another, may request an expedited hearing. An expedited hearing must be arranged and is subject to a resolution period. The LEA must schedule a resolution session within seven (7) calendar days of the receipt of the due process complaint notice. The due process timeline begins after 15 calendar days on all issues that have not been resolved by the parties. If issues remain after the resolution period, then a hearing must occur within 20 school days of the date the hearing. While the decision is pending, the student must remain in the alternative setting, unless the time limit for the placement expires. NO EXTENSION may be granted in an expedited request. 34 CFR § 300.532 (c)
Expedited hearings are subject to a resolution period unless the parents and the LEA agree in writing to waive the resolution meeting or agree to mediation. A resolution meeting must occur within seven (7) days of receiving notice of the due process complaint and the due process hearing may proceed unless the matter is resolved within fifteen (15) days of the receipt of the due process complaint notice. 34 CFR § 300.532(c)(3)
5. How can a due process complaint be filed?
Oklahoma has procedures for a parent, adult student, or a school district to request a due process hearing. A school district may request a hearing to resolve a dispute by filing a Due Process Complaint Notice – LEAor an Expedited Due Process Complaint Notice – LEA. Parents and adult students may request a hearing by filing a Due Process Complaint Notice – Parent or an Expedited Due Process Complaint Notice – Parent. These forms are available on the Oklahoma State Department of Education Web site at http://www.sde.state.ok.us.
This form is sent to: Oklahoma State Department of Education
Attn: Special Education Services
2500 North Lincoln Boulevard, Suite 412
Oklahoma City, Oklahoma 73105-4599
6. What information must be contained in a request for a due process hearing?
The due process hearing request must contain the following:
a. The name of the child, the address of the residence of the child (or available contact information in the case of a homeless child) and the name of the school the child is attending.
b. In the case of a homeless child or youth [within the meaning of Section 725(2) of the McKinney-Vento Homeless Assistance Act (42 U.S.C. §11434a(2)], available contact information for the child and the name of the school the child is attending.
c. A description of the nature of the problem of the child relating to such proposed initiation or change, including facts relating to such problem.
d. A proposed resolution of the problem to the extent known and available to the party at the time. 34 CFR § 300.508(b)
7. What are the timelines for actions related to a request for a due process hearing?
a. If the LEA has not sent a prior written notice to the parent regarding the subject matter contained in the parent’s due process complaint, the LEA must, within ten (10) calendar days of receiving the due process complaint, send to the parent a response that must include:
- An explanation of why the agency proposed or refused to take the action raised in the due process complaint.
- A description of other options that the 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 agency used as the basis for the proposed or refused action.
- A description of the other factors that are relevant to the agency’s proposed or refused action.
b. Except as provided above in paragraph (a), the non-complaining party must, within ten (10) calendar days of receiving the due process complaint notice, send to the other party a response that specifically addresses the issues raised in the request for a due process complaint.
c. Within 15 calendar days of receiving the request for a due process hearing, the party receiving the request may notify the Hearing Officer and assert that the Due Process Request Notice is not sufficient (does not contain the information in question number 6, above). Within five (5) calendar days of receipt of the notification, the Hearing Officer must make a determination on the face of the notice of whether it meets the statutory requirements and must immediately notify the parties in writing of such determination. 34 CFR § 300.508
8. Who is an impartial Hearing Officer?
A Hearing Officer conducting a hearing must, at a minimum:
a. Not be an employee of the SEA or the LEA involved in the education or care of the child, or a person having a personal or professional interest that conflicts with the person’s objectivity in the hearing.
b. Possess knowledge of, and the ability to understand, the provisions of the Individuals with Disabilities Education Act (IDEA); federal and state regulations pertaining to IDEA; and legal interpretations of IDEA by federal and state courts.
c. Possess the knowledge and ability to conduct hearings in accordance with appropriate, standard legal practice.
d. Possess the knowledge and ability to render and write decisions in accordance with appropriate, standard legal practice. [20 U.S.C. §1415(f)(3)(A)] 34 CFR § 300.511(c)
9. What issues can be raised during the hearing?
Only issues raised in the Due Process Complaint can be addressed in the hearing unless the other party agrees otherwise. [20 U.S.C. § (f)(3)(B)] 34 CFR § 300.511(d)
10. What about issues in dispute not mentioned in the due process complaint notice?
If there are issues in dispute that are not mentioned in the due process complaint notice, then a party requesting the due process has three options:
a. The party may ask the other party to agree in writing that the issues can be raised during the hearing.
b. The party may seek to amend its request.
c. The party may file another due process complaint to address the other issues. 34 CFR § 300.508(d)(3)
11. How can a party amend the Due Process Request Notice?
A party may amend its due process complaint notice only if:
a. The other party consents in writing to such amendment. The other party must then be given the opportunity to resolve the complaint through another Resolution Session, or
b. The Hearing Officer grants permission, except that the Hearing Officer may only grant such permission not later than five (5) calendar days before a due process hearing begins. 34 CFR § 300.508(d)(3)
If a party files an amended notice, the timelines for the due process hearing restarts at the time the party files the amended notice, including the timeline for the resolution session.
12. Are there IDEA rules about the Hearing Officer’s decision?
Subject to 20 U.S.C. § 1415(f)(3)(E)(ii), a decision made by a Hearing Officer must be made on substantive grounds based on a determination of whether the child received FAPE.
In matters alleging a procedural violation, a Hearing Officer may find that a child did not receive FAPE only if the procedural inadequacies:
a. Impeded the child’s right to a FAPE.
b. Significantly impeded the parent’s opportunity to participate in the decision-making process regarding the provision of FAPE to the parent’s child.
c. Caused a deprivation of educational benefits. 34 CFR § 300.513
Rule of construction – Nothing in this section shall be construed to preclude a Hearing Officer from ordering an LEA to comply with procedural requirements under 34 CFR § 300.536..
Rule of construction – Nothing in 20 U.S.C. § 1415(f)(3)(E) shall be construed to affect the right of a parent to file a complaint with the SEA.
13. What are my rights during a hearing?
a. Any party to a hearing or appeal has the following rights:
- To be accompanied and advised by counsel and by individuals with special knowledge or training with respect to the problems of children with disabilities.
- To present evidence and confront, cross-examine, and compel the attendance of witnesses.
- To obtain a written or, at the option of the parent, electronic, verbatim record of the hearing.
- To obtain a written or, at the option of the parents, electronic, verbatim findings of fact and decisions.
- To prohibit the introduction of any evidence at the hearing that has not been disclosed to the other party at least five (5) business days before the commencement of the hearing. The Hearing Officer will determine the disclosure timeline for an expedited due process hearing.
- To ask for a Due Process Hearing Appeal review if you are in disagreement with the due process hearing decision or the expedited due process hearing decision.
- To know the role of the Hearing Officer, which includes the responsibility to hear both sides and render a decision in keeping with all appropriate state and federal regulations.
b. Parents also have the following rights:
- To have the child who is the subject of the hearing present.
- To request an open hearing before the public, if desired. (Note: unless requested, the hearing will be a closed to preserve confidentiality.)
- To have the record of the hearing and the findings of fact and hearing decision provided at no cost. 34 CFR § 300.512
14. What if a party is not satisfied with the results of the hearing?
Any party aggrieved by the findings and decision rendered in a due process hearing may appeal the findings and decision to the SEA within 30 calendar days of the date of the hearing decision. An impartial Appeal Officer will be assigned to review the case. The officer conducting such review must make an independent decision upon completion of such review. The reviewing officer must defer to the Hearing Officer’s findings based on credibility judgments unless the nontestimonial evidence in the record would justify a contrary conclusion or unless the record read in its entirety would compel a contrary conclusion. [O’Toole v. Olathe, 144 F.3d 692, 699 (10th Cir. 1998)] 34 CFR § 300.514
A decision by the Appeal Officer shall be final unless the party brings a civil action in a court of competent jurisdiction. Any such civil action must be brought within 90 calendar days from the date of the hearing appeal decision. 34 CFR § 300.516
15. What about attorneys’ fees?
Under the IDEA, attorneys’ fees are never a proper subject of a due process hearing. There are circumstances where parents and/or school districts would be responsible to pay the attorneys’ fees for the other side.
a. School District. In any action or proceeding brought under this section, the court, in its discretion, may award reasonable attorneys’ fees as part of the costs:
- To a prevailing party who is an LEA or an SEA against the attorney of a parent who files a request for a due process hearing or subsequent cause of action that is frivolous, unreasonable or without foundation, or against the attorney of a parent who continues to litigate after the litigation clearly became frivolous, unreasonable or without foundation, or
- To a prevailing SEA or LEA against the attorney of a parent, or against the parent, if the parent’s request for a due process hearing or subsequent cause of action was presented for any improper purpose, such as to harass, to cause unnecessary delay, or to needlessly increase the cost of litigation.
b. Parent. In any action or proceeding brought under 20 U.S.C. §1415, the court, at its discretion, may award reasonable attorneys’ fees as part of the costs to a prevailing party who is the parent of a child with a disability. 34 CFR § 300.517
16. How are fee awards determined?
Fees awarded are determined by a court of law of competent jurisdiction. A Hearing Officer may not award fees. Fees awarded shall be based on hourly rates prevailing in the community where the action or proceeding arose for the kind and quality of services furnished. No bonus or multiplier may be used in calculating the fees awarded under this subsection. 34 CFR § 300.517(c)
17. Are there some services of an attorney for which fees cannot be awarded?
a. General. Attorneys’ fees may not be awarded and related costs may not be reimbursed in any action or proceeding under 20 U.S.C. §1415 for services preformed subsequent to the time of a written offer of settlement to a parent if:
- The offer is made within the time prescribed by Rule 68 of the Federal Rules of Civil Procedure or, in the case of an administrative proceeding, at any time more than ten (10) calendar days before the proceeding begins.
- The offer is not accepted within ten (10) calendar days.
- The court finds that the relief finally obtained by the parent is not more favorable to the parent than the offer of settlement.
An award of attorneys’ fees and related costs, however, may be made to a parent who is the prevailing party and who was substantially justified in rejecting the settlement offer.
b. IEP Team Meetings. Attorneys’ fees may not be awarded relating to any meeting of the IEP team unless such meeting is convened as a result of an administrative proceeding or judicial action, or at the discretion of the State, for mediation. Reimbursement of attorneys’ fees shall not be permitted for services rendered regarding a mediation that is conducted prior to filing a due process hearing.
c. Opportunity to Resolve Complaints (Resolution Sessions). A resolution session meeting shall not be considered a meeting convened as a result of an administrative hearing or judicial action, or an administrative hearing or judicial action for purposes of attorneys’ fee awards. 34 CFR § 300.517
18. Are there circumstances under which a Court could reduce the amount of attorneys’ fees awarded to a party?
The court shall reduce, accordingly, the amount of the attorneys’ fees awarded whenever the court finds that:
a. The parent, or the parent’s attorney, during the course of the action or proceeding, unreasonably protracted the final resolution of the controversy.
b. The amount of the attorneys’ fees otherwise authorized to be awarded unreasonably exceeds the hourly rate prevailing in the community for similar services by attorneys of reasonably comparable skill, reputation, and experience.
c. The time spent and legal services furnished were excessive considering the nature of the action or proceeding.
d. The attorney representing the parent did not provide to the LEA the appropriate information in the notice of the due process complaint.
None of these reductions in attorneys’ fees above applies to any action or proceeding if the court finds that the other party unreasonably protracted the final resolution of the action or proceeding or there was a violation of this section.
34 CFR § 300.517
19. Are there alternatives to filing a due process complaint?
Besides a due process complaint, two other mechanisms for alternative dispute resolution are available. Rather than file a due process complaint, any party may file a formal complaint with the SEA (Oklahoma State Department of Education – Special Education Services) or may request mediation to resolve a dispute.
a. Formal complaint. A formal complaint must be in writing and submitted to the SEA. A formal complaint is appropriate when a party is seeking systemic relief. A form for filing a formal complaint may be found at the Web site for the SEA, www.sde.state.ok.us Click on Special Education Services and then on Forms.
b. Mediation. Mediation is an effective way to help individuals who disagree, discuss the problem and come to a mutually acceptable resolution. The mediator does not judge or decide, but instead helps the parties find their own common ground. Mediation is not a substitute for legal help. No legal advice will be given by the mediator. There is no charge to either party. Participants retain their rights to due process hearings, court action, or filing complaints with appropriate agencies. The mediation sessions may be held within two weeks after a request for mediation has been submitted. Mediation may not delay due process timelines.
A parent or a school district representative may call the local Early Settlement Center to ask that a mediation session be arranged. Call toll-free: (800) 42-OASIS (800-426-2747) or (405) 271-6302 for the name and number of your local Early Settlement Center.
B. Filing a Due Process Complaint Notice.
1. If the parent, parent representative or adult student files a Due Process Complaint Notice – Parent or an Expedited Due Process Complaint Notice – Parent, a signed written request for a hearing must be sent to the local school administrator, with a copy forwarded to the SEA, stating all of the following:
a. The student’s name.
b. The student’s date of birth.
c. The address of the residence of the student and parent and the name of the school the child is attending. In the case of a homeless child, [within the meaning of 42 U.S.C. § 11434a(2)] available contact information for the child and the name of the school the child is attending.
d. A description of the nature of the problem of the child relating to such proposed initiation or change, including facts relating to such problems.
e. A proposed resolution of the problem to the extent known and available to the party at the time.
Forms for this purpose are available from the SEA Web site to assist parties in filing a Due Process Complaint Notice – Parent, or an Expedited Due Process Complaint Notice – Parent. (See Appendix B, or www.sde.state.ok.us. Click on Special Education Services and then on Forms.)
At the same time, a copy of this Notice must be mailed to:
Oklahoma State Department of Education
Special Education Services
2500 North Lincoln Boulevard, Room 412
Oklahoma City, Oklahoma 73105-4599
for assignment of an impartial Hearing Officer.
2. If the LEA requests a Due Process Complaint Notice – LEA or an Expedited Due Process Complaint Notice – LEA, a signed written request for a hearing must be sent to the parent or adult student, and a copy forwarded to the SEA stating all of the following:
a. The student’s name.
b. The address of the residence of the student and parent and the name of the school the child is attending. In the case of a homeless child [within the meaning of 42 §11434a(2)] available contact information for the child and the name of the school the child is attending.
c. A description of the nature of the problem of the child relating to such proposed initiation or change, including facts relating to such problems.
d. A proposed resolution of the problem to the extent known and available to the party at the time.
Forms for this purpose are available from the SEA Web site to assist parties in filing a Due Process Complaint Notice – Parent, or an Expedited Due Process Complaint Notice – Parent. (See Appendix B, or http://www.sde.state.ok.us Click on Special Education Services and then on Forms.)
updated June 26, 2007