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Drafting a Due Process Hearing Request (a parent attorney perspective)

Posted by attorney Diane Wiscarson

In the vast majority of situations, parents and school staff work collaboratively to implement an appropriate education for students with disabilities. In the rare situation where the school staff and the parents cannot agree about what an appropriate education is, the Individuals with Disabilities Education Act has provided for Due Process Hearings. To initiate a Due Process Hearing, the parent will file a Due Process Hearing Request. The following are the basic steps for drafting a Due Process Hearing Request.

A. Get the facts straight – organized, accurate and complete.

  1. Interview the parents and make sure you understand the facts and chronology of events.

  2. Ask the parents to write a chronology of events. Go over the chronology with the parents and flesh out whatever does not make sense or needs more information to be clearly understood.

  3. Ask the parents to write a cast of characters. Have the parents list the name of each person who has an educational connection to the student. What is the job title and function of each person? What are the parents’ general thoughts and impressions of each person?

  4. Where the parents say that facts differ from documentation, find out what supports the parents perception of the facts. Are there other documents? Emails?

B. Request the student’s complete educational file.

  1. As soon as possible, have the parents request the student’s complete educational record. The parent can do this directly or the records request can be done via an advocate or legal counsel.

  2. Specifically request each type of record that is being requested. Although most district staff understand the definition of a complete educational record, specificity can help prompt district staff to look thoroughly for identified education records.

  3. Records must be provided to the parents within 45 calendar days of the request. Most districts do not take the entire 45 days to provide a copy of the student’s records. If it gets close to the 45 days and the records still have not been received, send a gentle reminder. Most likely the request has just been waylaid somewhere.

  4. Be careful with charges made to the parents for education records. It is generally fine to charge a reasonable fee for the actual copies, but not for time spent retrieving records, copying records or redacting names or information related to other students.

C. Collect all the private provider records.

  1. Ask the parents for all of the records they have from private providers. Get these records as soon as you can as they are an integral part of the student’s history.

  2. Ask the parents for a list of all of the private providers and the dates service was provided. Make sure to ask for addresses, telephone numbers and email addresses.

  3. Have the parents sign releases and then obtain copies of the records from the providers. This allows the attorney to make sure that the private provider records are complete and unfiltered.

D. Gather all of the parent’s records.

  1. Ask the parents to bring in all of the records they have – from the beginning of time until the present day. Be specific in telling the parents what they need to look for. Do they have any handwritten notes? Private provider reports? Emails? Daily sheets home from school?

  2. Once the parents bring all of their records in, ask them to look again. Make sure that the student’s work samples are included in what the parents bring in. Prompt them to check the front of their refrigerator.

  3. Find out if there are other family members who attended meetings and took notes. If so, ask for those records as well.

E. Stick to documented facts when writing the due process hearing request.

  1. What can you prove through documentary evidence? Facts that are proven by documents are the only ones to include in a due process hearing request, with rare exception.

  2. Carefully review each document, with a fine tooth comb. Sometimes the most valuable information can be found buried within the most innocuous looking piece of paper.

  3. If you can not prove a particular fact with a document, and you need to include it anyway, figure out now how you are going to prove its truth.

F. Consider appropriate remedies.

  1. Think carefully through remedies that are requested. Since you can not unilaterally alter the requested remedies later in the process, it is important to get this right the first time.

a. Does the student need compensatory education?

b. Does the student need evaluation(s)?

c. Is there a need to convene an IEP meeting?

d. Are you requesting a placement change?

e. Is there a reason to request staff training?

f. Attorney fees and costs should always be requested.

  1. Ask for all appropriate remedies that the student might be entitled to receive at hearing. Facts always unfold as a case develops. As you get more information, you can always delete a requested remedy if necessary. But since you can not easily add remedies, work hard to put them all in the initial due process hearing request.

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