Special education due process hearings
There are many rules that must be followed as part of due process. You can read the rules for Illinois on the Illinois State Board of Education website.
There are very specific time limits that must be followed for due process.
You must request a due process hearing within 2 years of the problem. You can ask a hearing officer to correct a problem that has occurred within the last 2 years, but you may not request relief for a problem that goes beyond that 2 year period, unless it is a continuing problem.
If you are trying to freeze your child’s placement or otherwise prevent a new IEP from going into effect by filing for due process, you must do this within 10 days of the IEP meeting when the changes you disagree with were made. You could file for due process after the 10 days have past, but the new Individualized Education Plan (IEP) will go into effect during the time you are resolving your dispute with the school.
While you wait to hear about your hearing, you will be working with the school district to try to resolve the problem before the hearing. This is called the resolution period, which lasts 30 days. The hearing officer will help guide you through the process.
Within the initial 30-day period, you will have the opportunity to choose to mediate the issues, or to go to a resolution session. There are critical differences between these 2 processes that you can read about in the ISBE parent guide.
A resolution session should include all relevant IEP team members and must occur within 15 days after the request for due process is received. Another timeline may be agreed upon if you and the school district decide to waive the resolution session in order to go to mediation.
After the resolution session, both sides will have 3 days to change their minds about the agreement. After the 3 days are over, the written agreement will be binding for both parties. This means that both the school and the parents will have to do what is written in that agreement.
If you do not cancel the agreement within the 3 days, it is binding. Only sign an agreement if the problem is fixed and you no longer want a hearing, or if the agreement states that only some of the problems are resolved and the due process case will continue.
Here are some rules about the session:
- You must be given a chance to explain the problem and the school must have a chance to fix the problem;
- The school must send someone who has decision-making authority;
- The school cannot bring a lawyer to a resolution meeting unless you bring a lawyer; and
- If you and the school come to an agreement at the resolution meeting, then a written agreement will be drafted. It will say how the parties are going to fix the problem.
Do not sign any papers unless you have read them, you understand them, and you agree with what they say. If you do not understand something in an agreement, ask the school to explain it to you, and have them write the explanation into the agreement.
Remember, the school only has to do what is actually written in the agreement. If you sign an agreement at the resolution meeting, your due process hearing request will be withdrawn, and you will not have a hearing.
Selecting a hearing officer
ISBE will choose a hearing officer who will act as the judge for the hearing. You can find a list of hearing officers in Illinois on the ISBE website.
Both the parents and the school may request a substitute hearing officer. This is called asking to strike the hearing officer. This must be done within 5 days of the date you receive notification of the hearing officer.
If you strike the first hearing officer, and also do not want the second assigned hearing officer, you cannot ask the state to change the hearing officer a second time.
Before you file your due process request, or right after you receive notice of who the hearing officer is, it is important to ask parents’ groups and anyone else with experience in Illinois due process hearings about a hearing officer to see if they have any perspective on whether you should strike that person.
It is also important to read decisions by your hearing officer to help you decide whether to request a substitute hearing officer. Decisions by hearing officers and summaries of their decisions are in the Due Process section on the ISBE website.
Soon after being assigned to the hearing, the hearing officer will reach out to both parties to schedule some initial calls and to provide information about the hearing.
You should attend any status calls that the hearing officer schedules. You should also follow whatever instructions the hearing officer gives about how they would like the hearing, communications, and other matters throughout the process to be handled.
Location of hearing
The hearing is usually at the school or school administrative offices. If you want to have the hearing somewhere else, you must propose the place and tell the hearing officer that you want to have the hearing there.
You can ask that the hearing be held at a neutral site as long as it is free and reasonably convenient. "Free" means that none of the parties have to pay. "Reasonably convenient" usually means that it is close to where the school witnesses will be coming from and has an appropriate space for a hearing.
Preparing document books and witness lists
One important thing you should do to prepare for a due process hearing is to put together a document book and witness list.
Your document book contains all of the documents you want to use at the hearing. Your witness list includes the identifying information for the witnesses you plan to use, the expected length of their testimony, and what types of things they will say.
The pages of your document book must be numbered with a stamp, usually called a Bates Stamp. This can be found at an office supply store. The first page should be a list all of the documents and their page numbers. This helps everyone find pages easily and quickly.
The book can be a two or three-ring binder or bound by an office supply store. If the hearing officer has specific rules about how the document book should be bound, make sure to follow them.
It takes a long time to organize all of your documents, date-stamp them, copy them and then put them into binders, so be sure to start early making these books. It is usually easier to make and stamp one book and then take it to an office copy place and ask them to make three copies on three-hole punch paper, or to bind it for you.
You must prepare a copy for yourself, the school's attorney, the hearing officer, and the witnesses. All of the witnesses will share one copy. You will be responsible for the cost of creating the document book.
On the day of the hearing, you will bring one document book for the witnesses to use during the hearing. You will use your own copy of the document book to prepare for the hearing.
You will also need to submit a witness list that includes the identifying information for the witnesses you plan to use, the expected length of their testimony, and the nature of their testimony.
Bringing a lawyer
You are not required to have a lawyer, but it is best to get a lawyer if you can. One study showed that parents without representation by a lawyer only won about 16% of due process hearings. Parents who were represented by a lawyer won 49% of the hearings.
It is important to find a lawyer who is experienced in special education law before you request a due process hearing.
You will also decide whether you want the hearing to be open or closed.
In an open hearing, anyone can come and watch the hearing, including people from the school. In a closed hearing, no one can be in the hearing except the parties, the court reporter, the hearing officer, and each witness when it is their turn to speak.
Placement of student during due process proceedings
When the hearing has been requested within 10 days of the creation of the IEP that is in dispute, requesting due process places a freeze on your child’s placement and IEP until a decision is made by the hearing officer. This is called “stay put.”