The Special Education “Due Process” rules have changed – for the most
part, in favor of school districts. Below, we review how you can
respond to these changes and to use them to your advantage.
I. New Two-Year Statute of Limitations
A. Only applies to issues the school
and parents knew, or should have known about.
B. Substantially limits comprehensive file review.
II. Written Response Requirement
A. Applies to either “non-requesting”
party.
B. Must be provided with ten (10) days of receipt of due process
request.
III. Allowance for Motion to Dismiss Request
A. Must be filed within fifteen (15)
days of request for due process.
B. Limited basis for dismissal:
1. Failure to state a claim.
2. Failure to state requested relief.
C. Hearing officer can dismiss with or without prejudice.
IV. Resolution Sessions
A. Must be convened within fifteen (15)
days of receipt of due process request, unless waived by parent.
B. Parents can exclude attorneys.
C. District “decision maker” and members of IEP team with
knowledge of the disputed issues.
D. Thirty (30) day resolution session period.
E. Agreement enforceable in court, subject to three (3) day recession
period.
V. Voluntary Mediation – Still Available
A. Agreements are now enforceable in
court.
B. Mediation usually preferable to Resolution Sessions.
VI. Due Process Issues Limited to Initial Due Process Request
A. Limits Hearing Officer's jurisdiction
B. Exception: “...evidence bearing on barred issues may... be
admitted... on the ultimate issues of... FAPE”.
VII. Attorney Fees Can Be Sought by Either Party
VIII. Forty-five (45) Day Removal to Alternative Setting in Cases
Involving “Serious Bodily Injury”