Because NICHCY’s website will only remain online until September 30, 2014, most of its rich content has moved to a new home, the Center for Parent Information and Resources (CPIR), where it can be kept up to date.
The new address of Due Process Complaints, in Detail at the CPIR is:
Due process is a longstanding approach within IDEA to resolving disputes. This article will take you through through the key points and content of IDEA’s provisions regarding due process complaints.
- Changes in due process in IDEA 2004
- What is a due process complaint?
- Who may file a due process complaint?
- What information must the complaint contain?
- Deciding sufficiency of the complaint
- When may the due process complaint not be used?
- What is the time limit for filing a due process complaint?
- What must the LEA do when a parent files a complaint?
- What must a parent do when the LEA files the complaint?
There are other mechanisms for resolving disputes, and you can find out about those by returning to the menu “Resolving Disputes Between Parents and the School System.” Here, however, the mechanism of the due process complaint will be thoroughly explained without again mentioning that other mechanisms exist by which individuals and organizations might register their disagreement with the school system and have it addressed.
Changes in Due Process Complaints in IDEA 2004
The 2004 Amendments to IDEA made significant changes in its provisions related to due process complaints and due process hearings. The statutory changes reflect a heightened emphasis on resolving disputes as early as possible, rather than leaving problems to fester. This includes procedures to make sure that individuals have the information they need to try to resolve disagreements early on and to provide opportunities that encourage parents and school staff to communicate with one another to reach a solution. This approach is reflected through changes in the statute and regulations concerning the following:
- time limit for filing a due process complaint;
- information that must be provided to the other party when a due process complaint is filed; and
- a requirement that the LEA provide the parties the opportunity to resolve the dispute through a resolution meeting convened by the LEA prior to going before a hearing officer to have the matter decided when the parent files a due process complaint.
What is a due process complaint?
A due process complaint is a filing by an individual or organization on matters of conflict related to the:
- evaluation, or
- educational placement of a child, or
- provision of a free appropriate public education (FAPE) to the child.
Complaints must be written and signed and must contain specific information (identified further below), including a statement that a public agency has violated a requirement of Part B of IDEA or its implementing regulations and the facts upon which the statement is based.
The party filing a due process complaint must provide a copy to the other party and forward a copy to the state educational agency (SEA) as well[§300.508(a)(2)]. Beyond providing these copies, the information contained in the due process complaint must be kept confidential [§300.508(a)].
Whenever a complaint is received, the parents and local educational agency (LEA) involved in the dispute must have an opportunity for an impartial due process hearing [§300.511(a)].
Who has the right to file a due process complaint?
A parent or a public agency may file a due process complaint on issues relating to the identification, evaluation, or educational placement of a child with a disability or the provision of FAPE to the child [§300.507(a)]. Because the complaint resolution process tends to be less intimidating than a due process hearing, many parents may select this approach (rather than the due process hearing) to resolve a dispute.
What information must the complaint contain?
IDEA lists the specific information that must be included in a due process complaint [§300.508(b)]. Including each of the required elements can help ensure that the parties have the information necessary to understand the other’s perspective on the issue(s) under dispute. As specified in §300.508(b), the due process complaint must include:
- the name of the child;
- the address of the residence of the child;
- the name of the school the child is attending;
- a description of the nature of the child’s problem relating to the proposed action or refused initiation or change, and
- a proposed resolution of the problem to the extent known and available to the person filing the complaint.
If the child is homeless, as defined in the McKinney-Vento Homeless Assistance Act, the complaint must include available contact information for the child—instead of the address of the child’s residence—and the name of the school the child is attending [§300.508(b)(4)].
A party may not have a hearing on a due process complaint until the party, or the attorney representing the party, files a due process complaint that meets these requirements [§300.508(c)].
To help parents and public agencies file a due process complaint, each SEA must develop a model form [§300.509(a)]. However, neither the state nor the school district may require the use of these forms. A party may use the model form or another appropriate form, as long as it contains the required information for filing a due process complaint [§300.509(b)].
IDEA’s exact words regarding all of this information can be seen in IDEA’s Regulations on Due Process Complaints.
Who decides whether the information in the due process complaint is sufficient?
A due process complaint is deemed sufficient unless the party receiving the due process complaint notifies the hearing officer and the other party in writing, within 15 days of receiving the due process complaint, that the complaint does not meet IDEA’s content requirements [§300.508(d)(1)]. Within five days of receiving this notification, the hearing officer must make a decision based on the face of the due process complaint whether it is legally sufficient and immediately notify the parties in writing of that determination. This means, at this stage, that the hearing officer may only look at what is written in the due process complaint and may not take additional evidence or testimony in order to make his or her decision about the sufficiency of the complaint [§300.508(d)(2)].
If the hearing officer rules that the due process complaint is not sufficient, the decision will identify how the notice is insufficient so that the filing party can amend the notice, if appropriate. If the due process complaint is determined to be insufficient and is not amended, the due process complaint could be dismissed (71 Fed. Reg. 46698).
Under what circumstances may a due process complaint be amended?
Section 300.508(d)(3) of IDEA specifies the circumstances under which the party filing the due process complaint will have an opportunity to amend the complaint to ensure that it accurately sets out their dispute with the other party. The due process complaint can be amended only if:
- the parties mutually agree in writing to the amendment and are given the opportunity for a resolution meeting, or
- the hearing officer grants permission to amend the complaint at any time not later than five days before the due process hearing begins.
This provision ensures that the parties understand and agree on the nature of the due process complaint before any hearing begins.
When a complaint is amended, the timeline for convening the resolution meeting (within 15 days of receiving the complaint) and time period for resolving the due process complaint (within 30 days of receiving complaint) start again on the date the amended complaint is filed (U.S. Department of Education, 2009, see Question C-5).
When may the due process complaint not be used to resolve a dispute?
There are some important exceptions to the issues that are subject to IDEA’s due process procedures. Here’s one of those exceptions.
In the article about mediation, we talked about consent override procedures, which are optional on the part of the LEA if a parent refuses consent or fails to respond to the school system’s request for the initial evaluation or reevaluation of the child. Three points about consent override and due process complaints need to be made here:
The public agency proposing to conduct an initial evaluation or any reevaluation may not file a due process complaint or use mediation to override a parent’s refusal to consent (or failure to respond to the request for consent) to the initial evaluation or reevaluation of a parentally-placed private school child or home-schooled child [§300.300(c)(4)(i)].
The public agency responsible for making FAPE available to a public school child with a disability may not file a due process complaint to override a parent’s refusal to consent (or failure to respond to the request for consent) to the initial provision of special education and related services [§300.300(b)(3)].
The public agency responsible for making FAPE available to a public school child with a disability may not file a due process complaint to override a parent’s written revocation of consent for the continued provision of special education and related services [§300.300(b)(4)].
And here are two other exceptions worth noting:
Parents of parentally-placed private school children may file a due process complaint only regarding the failure of the LEA where the private school is located to meet the child find requirement [§300.140)] .
A parent may not file a due process complaint regarding the SEA’s or LEA’s failure to provide a highly qualified teacher, although an organization or individual could file a state complaint about staff qualifications with the SEA [§300.156(e)].
What is the time limit for filing a due process complaint?
Unlike its predecessors, IDEA 2004 sets a time limit for filing a due process complaint, as follows:
A due process complaint must allege a 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 due process complaint, or if the State has an explicit time limitation for requesting such a due process hearing under Part B, in the time allowed by that State law. [§300.507(a)(2)]
Of course, there are specific exceptions to this timeline! These are:
- if the parent was prevented from filing a due process complaint due to misrepresentations by the school district that it had resolved the issues in the due process complaint; or
- the school district withheld information from the parent that it was required to provide under Part B of the IDEA. [§300.511(f)]
A state may choose to have a time limit for filing a due process complaint that is different from the two-year timeline, and the state timeline may be shorter, or longer, than two years. In any case, the applicable time limit for filing a due process complaint must be explained in the procedural safeguards notice that provides parents with the full explanation of procedural safeguards so that parents will be informed of the time limitation in their state.
What steps must the LEA take when it receives a parent’s due process complaint?
The LEA has specific, time-sensitive responsibilities when it receives a parent’s due process complaint. Remember, the intent is to resolve disputes as early as possible so that a child’s education program is not adversely affected by unnecessary delays in the dispute resolution process.
Providing the procedural safeguards notice and other information. Upon receiving the first due process complaint filed in a school year, the public agency must provide parents with notice of their procedural safeguards [§300.504(a)(2)]. Additionally, upon receiving a parent’s complaint, the LEA must inform parents about the availability of free or low-cost legal and other relevant services in the area. This is required by §300.507(a)(2).
Responding to the complaint. If the public agency has not sent the parent a prior written notice regarding the subject matter contained in the due process complaint, the public agency must, within 10 days of receiving the due process complaint, send the parent a response that includes:
- an explanation of why the school district proposed or refused to take the action raised in the due process complaint;
- a description of other options that the child’s IEP team considered and the reasons why those options were rejected;
- a description of each evaluation procedure, assessment, record, or report the public agency used as the basis for the proposed or refused action; and
- a description of the other factors that are relevant to the public agency’s proposed or refused action. [§300.508(e)(1)]
The provisions above apply to an LEA that has not provided the parent with written prior notice regarding the matter that is the subject of the parent’s due process complaint. That is why they essentially duplicate IDEA’s provisions regarding prior written notice and why there’s a reference to prior written notice here. Recall that a public agency must provide parents with prior written notice a reasonable time before the agency proposes (or refuses) to initiate or change the identification, evaluation, or educational placement of the child or the provision of FAPE to the child [§300.503(a)], as extensively discussed in the separate module, Introduction to Procedural Safeguards. That notice must contain the information specified at §300.503(b), which bears a striking resemblance to the information that must be contained in the LEA’s response described above. Clearly, the intent of both sets of provisions is to ensure that parents are informed about the LEA’s decisions and actions (or refusals) and the reasoning behind them. If the LEA has not already informed the parents through prior written notice, then it must do so now.
If the LEA previously has provided the parent prior written notice, then what’s called the other-party-response provision in §300.508(f) applies to that LEA. That provision requires the other party to provide the complaining party with a response that specifically addresses the issues raised in the due process complaint.
The LEA must also, within 15 days of receiving the parent’s due process complaint, convene a resolution meeting (unless the parties agree to use mediation or to waive the resolution meeting). Even if the LEA has challenged the sufficiency of a parent’s due process complaint and is awaiting a hearing officer’s decision on this matter, the LEA must still move forward with convening a resolution meeting under §300.510, unless the parties agree in writing to waive the resolution meeting or agree to use the mediation process.
The purpose of the resolution meeting is to give the public agency the opportunity to resolve the issues in the parent’s due process complaint. This is a new requirement in IDEA 2004 and represents a key change from the previous regulations. More information about the resolution meeting is available in the separate article Resolution Meetings.
What steps must a parent take when the LEA is the party filing a due process complaint?
IDEA states that the “receiving party must provide the party that filed the complaint a response to the complaint within 10 days of receiving the complaint” [§300.508(f)]. Thus, if the LEA is the party filing the due process complaint, the parent is required to provide a written response to the LEA within 10 days of receiving the LEA’s due process complaint that specifically addresses the issues raised in the LEA’s due process complaint [§300.508(f)].
While the regulations do not address what happens if either party fails to provide the other with the required notices, the Department of Education observes that:
…either party’s failure to respond to or to file the requisite notices could increase the likelihood that the resolution meeting will not be successful in resolving the dispute and that a more costly and time-consuming due process hearing will occur. (71 Fed. Reg. 46699)
Filing a due process complaint sets in motion a series of required timelines, notices, and actions. These are important to know when you file a due process complaint to resolve a dispute. It’s also important to recognize that, at certain points along the way, required timelines may “re-set” or start over.
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McKinney-Vento Definition of “Homeless”
Subtitle B of Title VII of the McKinney-Vento Homeless Assistance Act (Title X, Part C, of the No Child Left Behind Act) defines “homeless” as follows:
The term “homeless children and youths”–
(A) means individuals who lack a fixed, regular, and adequate nighttime residence (within the meaning of section 103(a)(1)); and
(i) children and youths who are sharing the housing of other persons due to loss of housing, economic hardship, or a similar reason; are living in motels, hotels, trailer parks, or camping grounds due to the lack of alternative adequate accommodations; are living in emergency or transitional shelters; are abandoned in hospitals; or are awaiting foster care placement;
(ii) children and youths who have a primary nighttime residence that is a public or private place not designed for or ordinarily used as a regular sleeping accommodation for human beings (within the meaning of section 103(a)(2)(C));
(iii) children and youths who are living in cars, parks, public spaces, abandoned buildings, substandard housing, bus or train stations, or similar settings; and
(iv) migratory children (as such term is defined in section 1309 of the Elementary and Secondary Education Act of 1965) who qualify as homeless for the purposes of this subtitle because the children are living in circumstances described in clauses (i) through (iii).
This discussion has been adapted primarily from a module within the Building the Legacy training curriculum on IDEA developed by NICHCY–specifically, Module 18, Options for Dispute Resolution.