2IDEA--Reauthorized Statute

## **PROCEDURAL SAFEGUARDS: DUE PROCESS HEARINGS**

The reauthorized *Individuals with Disabilities Education Act* (IDEA)
was signed into law on Dec. 3, 2004 by President George W. Bush. The
provisions of the act became effective on July 1, 2005, with the
exception of some of the elements pertaining to the definition of a
"highly qualified teacher" that took effect upon the signing of the act.
This is one in a series of documents, prepared by the Office of Special
Education and Rehabilitative Services (OSERS) in the U.S. Department of
Education, that covers a variety of high-interest topics and brings
together the statutory language related to those topics to support
constituents in preparing to implement the new requirements.[^1] This
document addresses only the changes to the IDEA provisions regarding
procedural safeguards related to due process hearings that took effect
on July 1, 2005. It does not address any changes that may be made by the
final regulations.

# IDEA 2004:

# 1. Replicates current regulations regarding who may request a due process hearing.[^2]

Either the parent or the public agency may request an impartial due
process hearing conducted by the state education agency (SEA) or local
education agency (LEA), as determined by state law or the SEA, with
respect to any matter relating to the identification, evaluation or
educational placement of the child, or the provision of a free
appropriate public education (FAPE) to such child. \[615(b)(6)(A),
(f)(1)(A); 34 CFR 300.507(a)(1)\]

# 2. Specifies the timeline for requesting a due process hearing.

The procedures required by Section 615 shall include ... an opportunity
for any party to request a due process hearing regarding an alleged
violation that occurred not more than two years before the date the
parent or public agency knew or should have known about the alleged
action that forms the basis of the request for a due process hearing,
or, if the state has an explicit time limitation for presenting such a
request under Part B, in such time as the state law allows, except that
the exceptions to the timeline described in Section 615(f)(3)(D) shall
apply.... \[615(b)(6)(B)\]

A parent or agency shall request an impartial due process hearing within
two years of the date the parent or agency knew or should have known
about the alleged action that forms the basis of the request for a due
process hearing, or, if the state has an explicit time limitation for
requesting such a hearing under Part B, in such time as the state law
allows. \[615(f)(3)(C)\]

The timeline described in Section 615(f)(3)(C) shall not apply to a
parent if the parent was prevented from requesting the hearing due to:

-   Specific misrepresentations by the local education agency (LEA) that
    it had resolved the problem forming the basis of the request for a
    due process hearing; or

-   The LEA's withholding of information from the parent that was
    required under Part B to be provided to the parent.

# \[615(f)(3)(D)\]

# 

# 3. Requires either party to provide notice to the other party.

The procedures required by Section 615 shall include ... procedures that
require either party, or the attorney representing a party, to provide a
request for a due process hearing notice in accordance with Section
615(c)(2) (which shall remain confidential) to the other party in the
request for a due process hearing filed under Section 615(b)(6), and
forward a copy of such notice to the state education agency (SEA); and
that shall include:

-   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;

-   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;

-   A description of the nature of the problem of the child relating to
    such proposed initiation or change, including facts relating to such
    problem; and

-   A proposed resolution of the problem to the extent known and
    available to the party at the time.

\[615(b)(7)(A)\]

The procedures required by Section 615 must include ... a requirement
that a party may not have a due process hearing until the party, or the
attorney representing the party, files a notice that meets the
requirements of Section 615(b)(7)(A)(ii). \[615(b)(7)(B)\]

The request for a due process hearing notice required under Section
615(b)(7)(A) shall be deemed to be sufficient unless the party receiving
the notice notifies the hearing officer and the other party, in writing,
that the receiving party believes the notice has not met the
requirements of Section 615(b)(7)(A). \[615(c)(2)(A)\]

# 4. Specifies timelines for actions related to a request for a due process hearing.

If the LEA has not sent a prior written notice to the parent regarding
the subject matter contained in the parent\'s request for a due process
hearing, such LEA shall, within 10 days of receiving the request for a
due process hearing, send to the parent a response that shall include:

-   An explanation of why the agency proposed or refused to take the
    action raised in the request for a due process hearing;

-   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; and

-   A description of the factors that are relevant to the agency\'s
    proposal or refusal.

\[615(c)(2)(B)(i)(I)\]

A response filed by an LEA pursuant to Section 615(c)(2)(B)(i)(I) shall
not be construed to preclude such LEA from asserting that the parent\'s
request for a due process hearing notice was insufficient when
appropriate. \[615(c)(2)(B)(i)(II)\]

Except as provided in Section 615(c)(2)(B)(i), the non-complaining party
shall, within 10 days of receiving the notice of request for a due
process hearing, send to the other party a response that specifically
addresses the issues raised in the request for a due process hearing.
\[615(c)(2)(B)(ii)\]

The party providing a hearing officer notification under Section
615(c)(2)(A) shall provide the notification within 15 days of receiving
the request for a due process hearing. \[615(c)(2)(C)\]

Within five days of receipt of the notification provided under Section
615(c)(2)(C), the hearing officer shall make a determination on the face
of the notice of whether it meets the requirements of Section
615(b)(7)(A), and shall immediately notify the parties in writing of
such determination. \[615(c)(2)(D)\]

A party may amend its request for a due process hearing notice only if:

-   The other party consents in writing to such amendment and is given
    the opportunity to resolve the complaint through a meeting held
    pursuant to Section 615(f)(1)(B) (resolution session); or

-   The hearing officer grants permission, except that the hearing
    officer may only grant such permission at any time not later than
    five days before a due process hearing occurs.

The applicable timeline for a due process hearing under this part shall
recommence at the time the party files an amended notice, including the
timeline under Section 615(f)(1)(B). \[615(c)(2)(E)\]

# 5. Adds provisions regarding hearing officers.

A hearing officer conducting a hearing pursuant to Section 615(f)(1)(A)
shall, at a minimum:

-   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;

-   Possess knowledge of, and the ability to understand, the provisions
    of IDEA; federal and state regulations pertaining to IDEA; and legal
    interpretations of IDEA by federal and state courts;

-   Possess the knowledge and ability to conduct hearings in accordance
    with appropriate, standard legal practice; and

-   Possess the knowledge and ability to render and write decisions in
    accordance with appropriate, standard legal practice.

\[615(f)(3)(A)\]

# 6. Sets guidelines for issues raised at a due process hearing.

The party requesting the due process hearing shall not be allowed to
raise issues at the due process hearing that were not raised in the
notice filed under Section 615(b)(7), unless the other party agrees
otherwise. \[615(f)(3)(B)\]

# 7. Specifies parameters for hearing officer decisions.

Subject to Section 615(f)(3)(E)(ii), a decision made by a hearing
officer shall be made on substantive grounds based on a determination of
whether the child received a free appropriate public education (FAPE).
\[615(f)(3)(E)(i)\]

In matters alleging a procedural violation, a hearing officer may find
that a child did not receive FAPE only if the procedural inadequacies:

-   Impeded the child\'s right to FAPE;

-   Significantly impeded the parents\' opportunity to participate in
    the decision-making process regarding the provision of FAPE to the
    parents\' child; or

-   Caused a deprivation of educational benefits.

\[615(f)(3)(E)(ii)\]

Rule of construction---Nothing in Section 615(f)(3)(E) shall be
construed to preclude a hearing officer from ordering an LEA to comply
with procedural requirements under Section 615. \[615(f)(3)(E)(iii)\]

Rule of construction---Nothing in Section 615(f)(3)(E) shall be
construed to affect the right of a parent to file a complaint with the
SEA. \[615(f)(3)(F)\]

# 8. Specifies a timeline for bringing a civil action.

The party bringing the civil action shall have 90 days from the date of
the decision of the hearing officer to bring such an action or, if the
state has an explicit time limitation for bringing such action under
Part B, in such time as the state law allows. \[615(i)(2)(B)\]

# 9. Adds provisions regarding the awarding of attorneys' fees.

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 SEA or an LEA 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
    continued 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.

\[615(i)(3)(B)(i)(II)-(III)\]

# 

# 10. Clarifies that parents may file separate due process requests on additional issues.

Nothing in Section 615 shall be construed to preclude a parent from
filing a separate request for a due process hearing on an issue separate
from a request for a due process hearing already filed. \[615(o)\]

[^1]: Topics in this series include: Alignment With the *No Child Left
    Behind Act*; Changes in Initial Evaluation and Reevaluation;
    Children Enrolled by Their Parents in Private Schools; Discipline;
    Disproportionality and Overidentification; Early Intervening
    Services; Highly Qualified Teachers; Individualized Education
    Program (IEP) Team Meetings and Changes to the IEP; Individualized
    Education Program (IEP); Local Funding; National Instructional
    Materials Accessibility Standard (NIMAS); Part C Amendments in *IDEA
    2004*; Part C Option: Age 3 to Kindergarten Age; Procedural
    Safeguards: Surrogates, Notice and Consent; Procedural Safeguards:
    Mediation and Resolution Sessions; Procedural Safeguards: Due
    Process Hearings; Secondary Transition; State Funding; and Statewide
    and Districtwide Assessments. Documents are available on the OSERS
    Web site at: www.ed.gov/about/offices/list/osers/index.html.

[^2]: IDEA 2004 uses the term "complaint" to indicate a request for a
    due process hearing. The term "request for a due process hearing"
    will be used in this document in lieu of "complaint." \[615(c)(2)\]