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Sweeping Changes to Due Process Reflect Favorable Possibilities For School Districts

In the Reauthorized IDEA, Congress made significant changes to provisions governing due process procedures. While School Districts will likely find relief in some of the changes, Congress also imposed new timelines and deadlines of which Districts must be aware. Modifications to the due process provisions are highlighted below.Statute of LimitationsThe Reauthorized IDEA includes a limitation on the time within which a due process complaint must be filed. Specifically, a due process complaint must be filed within two years after the parent or District knew or should have known about the action which is the subject of the complaint. There are two exceptions to the two year statute of limitations. The two year statute of limitations does not apply when the parent is prevented from requesting a hearing due to (1) specific misrepresentations by the District that it has resolved the problem forming the basis of the complaint; or (2) the District withholds information from the parent which the IDEA requires be provided. These exceptions to the statute of limitations appear to apply only to the parent(s).Notice of a Due Process RequestThe party initiating due process must provide the opposing party notice of a due process complaint and a copy must be sent to the Missouri Department of Elementary and Secondary Education (DESE). The notice must contain specific information (See Due Process Notice Checklist) without which it could be deemed insufficient. A party must notify the hearing officer and the opposing party within 15 calendar days of receiving the notice if the party believes the notice fails to include all necessary elements. The hearing officer then has five days to determine whether the notice is sufficient.Amending a ComplaintUnder the IDEA 2004, a party may amend a due process complaint if the hearing officer grants permission or if the opposing party consents in writing and is given the opportunity to resolve the complaint. The hearing officer cannot grant permission less than five days before a due process hearing is scheduled to begin. If a party amends its complaint, the applicable timelines for a due process hearing recommence.Notice of ActionIf the District receives a notice of due process and has not sent a Notice of Action regarding the subject of the complaint, the District must send a Notice of Action within ten calendar days.MediationThe reauthorized statute also includes changes regarding the mediation of disputes and the memorialization of mediation agreements. As a threshold matter, mediation discussions are confidential and may not be used as evidence in any subsequent due process hearing or court proceeding. The new statute also requires that any mediation agreement be signed by both the parent and a representative of the agency who has the authority to bind the agency. The written agreements will be enforceable in state and federal courts.Resolution SessionIn reauthorizing the IDEA, Congress created a new meeting called a Resolution Session. Prior to a due process hearing, and within 15 calendar days of receiving notice of the parents’ complaint, a District must convene a meeting with the parents and the relevant members of the IEP team who have specific knowledge of the facts identified in the complaint. This session must include a representative of the District with decisionmaking authority and may not include an attorney for the District unless the parent is accompanied by an attorney.At the Resolution Session, parents are to discuss their complaint and the facts which form the basis for the complaint. The District is provided the opportunity to resolve the complaint. Although it is clear a Resolution Session is necessary for parent-initiated complaints, the law is silent with regard to school-initiated complaints. The parties may agree, in writing, to waive the Resolution Session or to use mediation instead.If the parties are unable to resolve the dispute within 30 days of receipt of the complaint, a due process hearing may occur and all applicable timelines for a due process hearing will commence. If the parties settle the dispute, they must execute a legally binding agreement with requirements similar to a mediation agreement. One important difference is that a Resolution Session agreement may be voided within three business days of its execution.Attorneys’ FeesIDEA 2004 allows for the award of attorneys’ fees to a District if it is the prevailing party where the due process complaint is found to be frivolous and without foundation. The statute also allows an award of fees against attorneys of parents who continue to litigate after the litigation has clearly become frivolous. Attorneys’ fees may also be recovered from a parent or his/her attorney if the complaint or cause of action is presented for any improper purpose, such as harassment or delay.Hearing OfficersIn the new statute, Congress established qualification standards for hearing officers. Specifically, hearing officers must understand the IDEA, state education laws and applicable regulations. They must also know how to conduct hearings and write decisions in accordance with standard legal practice. Hearing officers cannot have any personal or professional interest in the matter which would compromise their objectivity.Due Process Notice ChecklistThe Due Process Notice must include the following:●The child’s residential address; ●The name of the school the child is attending;●A description of the nature of the problem relating to the proposed action (initiation or change) including the facts related to such problem;●A proposed resolution of the problem to the extent known and available to the party at the time.