(This is Part 5 of 5 in a series of posts providing an overview of IEPs in Connecticut and New York.)
This post addresses an obvious question regarding IEPs: What happens if there is a dispute pertaining to my child’s IEP?
IEP disputes can be complicated, time-consuming and expense. They can arise in any of the previously discussed steps related to IEPs, e.g., identification, evaluation, placement, and implementation. Disputes may also involve peripheral issues such as a school’s assessment methodology, related services, and student discipline.
The formal IEP dispute resolution process required by IDEA starts with a request for a “Due Process” hearing. This is a short-hand reference to a process that includes a formal, written complaint (a hearing “request”) and impartial hearing pursuant to IDEA.
Formal Due Process is required only informal settlement discussions or formal mediation fail. In many situations, mediation benefits both sides, but success always requires “good faith” efforts at reaching resolution. Mediation costs (not include attorneys’ fees) are funded by the state, and the state has a list of available mediators. We will post more about mediation later, but mediation should always be considered before formal Due Process is pursued.
Here are some preliminaries related to Due Process requests:
- The request must be filed within two years after the dispute is known.
- Either a parent or the school district may make such a request.
- The request must be in writing and include identifying information regarding the student, in addition to a description of the dispute.
- The request must also identify a proposed resolution, i.e., steps that may be taken to resolve the dispute.
- In Connecticut, a copy of the request must be sent to the Connecticut Bureau of Special Education “Due Process Unit.”
The request must include the above information to be considered “sufficient” for a due process hearing to be scheduled.
Sending a request also implicates a series of deadlines and time limitations that drive the “due process” calendar (some of which are subject to adjustment):
- “Sufficiency” Threshold: Within fifteen days of receipt of the request, the responding party must advise in writing if it believes the complaint is not “sufficient” on its face (i.e., it lacks required information). The hearing officer then has five days to notify the parties of a decision regarding sufficiency.
- Response: Once the complaint is deemed sufficient, within ten calendar days the district must send a written response addressing (1) why it proposed or refused to take the action at issue in the complaint; (2) a description of alternatives per the PPT; (3) the basis for the school’s decision (e.g., evaluation procedure, assessment, record or report); and (4) other factors the school believes is relevant.
- Resolution Meeting: Within fifteen days of receiving the request and before the hearing beings, the district must meet with the parent and the PPT members who have relevant knowledge to try to resolve the dispute. (This meeting can be waived with mutual consent between the parent and district.)
- Resolution or Hearing: Within 30 days of receipt of the complaint, either the school must address the issues in the complaint to the parents’ satisfaction, or the time period will begin running for a 45-day period in which a written decision must be issued.
On its own, the above timeline suggests that pursuing “due process” will take at least a few months and possibly longer. The dispute process mimics formal litigation but since it incorporates deadlines and other formalities.
There are several wrinkles that should be considered throughout the Due Process timeline, including:
- Responding to a Due Process Request Filed by the District
- Negotiations and Mediation
- Role of Non-attorney “Advocates”
- Adjustments to the Calendar and Deadlines
- Burden of Proof
- The “Stay Put” Rule
- Finality and Review
- Advisory Opinions
- Attorneys’ Fees
- Due Process versus Administrative Complaints
Parents facing an IEP dispute face a series of decisions and challenges. An education lawyer can help parents navigate an IEP dispute and reach a favorable resolution.
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The opinions expressed are solely those of the author(s). This content is provided as background and does not constitute legal advice.
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