Due Process Hearings
Oftentimes, differences in opinion will arise between you and the school about what is best for your child. Luckily, parents always have “procedural rights”—the right to disagree with a school district’s decisions regarding their child’s education or well-being. To do so, you must go through certain channels which can include mediation , due process hearings, or independent evaluations of your child. No matter where you are in the IEP or 504 Plan process, you can exercise your procedural rights.
You may want to exercise your right to due process if:
• You request that your child be evaluated for special education services, and the school denies your request;
• The school wants to change the services your child receives through their IEP or 504 Plan and you disagree with the change; or
• You believe your child needs additional services and the school district refuses to provide these services.
When a parent files a due process complaint, the school may request something called a “resolution” meeting. Resolution meetings are informal gatherings with the parent and a school official who can make important decisions regarding your child’s education, such as the Director of Special Education. There, you will try to resolve any relevant disagreements without involving any formal procedures.
If you and the school district fail to reach an agreement in a resolution meeting and mediation session, or you refuse to participate in these processes, the next step is a due process hearing. Both parties can request such a hearing. Once you file a due process complaint, the school cannot change your child’s special education classification, placement, or services until the issue is resolved—this is called the “stay put” effect, and you should specifically request it in your written complaint if you wish to take advantage of it.
At a due process hearing, an Administrative Law Judge will preside over the disagreement. It is a formal, trial-like setting where both parties will present evidence and legal arguments to support their side. The Judge will make a decision and both parties are held to it, unless either one decides to appeal the decision in NJ Superior Court or the Federal District Court. Even if there is an appeal, the Judge’s decision must go into effect immediately after the hearing.
Emergency Relief Hearing
If the situation is urgent and your child is suffering serious harm, an emergency relief hearing may be granted. Situations of serious harm may include: • When a child is not receiving special education services to which they are entitled under their IEP or 504 Plan (i.e. transportation to school)
• When a child is suspended from school due to an action that can be attributed to their disability
• When a student is not going to school because they are waiting for a placement decision
• When there is a danger that a child will not graduate or participate in a graduation ceremony
A Judge may grant an emergency relief hearing if the evidence presented by the parent in their request proves that: • The child involved will suffer irreparable harm if a hearing is not held immediately
• The due process hearing is being requested for reasons relating to an undisputed legal right
• The hearing is very likely to be decided in the parents’ favor due to the case facts
• The child will suffer greater harm than the school district if an emergency relief hearing is not granted
Before requesting mediation or a due process hearing, you may want to obtain legal advice. Susan Clark Law Group can help you navigate the due process hearing and advocate for your child.
Contact us at the Susan Clark Law Group at 732-637-5248 for a free consultation.
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