Handling Disagreements / Due Process

Parents sometimes disagree over their child’s identification, evaluation, program, placement and discipline. They may also fear that unchecked bullying of their child at school has negatively impacted his or her education.  It is usually best to try to solve these issues when they comes up by talking directly with the individual at school who is closest to the problem — either your child’s teachers, therapists, counselor or others. If you are not able to work things out, you can go to the principal with your concerns.

IDEA and Chapter 60 include a number of procedural safeguards or protections to make sure that student and parent rights are not violated. Some are aimed specifically at resolving conflicts. These include Independent Educational Evaluations (see EVALUATION), filing a State complaint, mediation, and impartial due process hearings.

Any person can file a Special Education Written Complaint with the Complaints Management Program, if they think they school has not followed special education law. The complaint must be in writing and be made within a year of the time the law was violated, unless a longer period is reasonable because the violation is continuing. Within 60 days state special education personnel will carry out an investigation and issue a written decision to the person who made the complaint. If the school has not followed the law, it will be required to show the state how it plans to correct its actions. State complaints can be made to:

Complaints Management Program
Department of Education
P. O. Box 2360
Honolulu, Hawaii 96804

Mediation is a voluntary process in which a neutral person (a mediator) helps two parties negotiate and resolve their differences by meeting with them in both joint and private confidential sessions. Mediation can clarify important issues, help you understand each others point of view and come to agreements both sides can live with.

Mediation is automatically offered to parents when they file a due process hearing request, but you can ask for it any time you are at odds with your child’s school over an important issue regarding your child’s education. The mediation process was written into special education law to offer a timely and inexpensive way to resolve conflicts and preserve the positive working relationship between home and school. If yo have already filed for due process, mediation will not interfere with or delay your right to a due process hearing, should you not reach agreement through the mediation process. A successful mediation results in a written mediation agreement that is enforceable in any State court.

Most parents see a due process hearing as the last resort, when all other attempts to resolve a conflict fall short. This is because hearings are adversarial in nature (someone wins and someone loses), very stressful, and can be costly in time and money. However, due process hearings offer an important protection through the opportunity to have an impartial hearing officer hear evidence from you and from the school in order to make a decision about whether your child is receiving appropriate and timely supports and services under the law.

There are two exceptions: 1) if you are filing a request for reimbursement of the cost of private school placement, the time line is 180 days from enrollment; and 2) if the school withheld information or misled you, and it prevented you from requesting a due process hearing, the two-year statue of limitations doesn’t apply.

When you do file your due process hearing request you must give your child’s name, address and school, and a description of the disagreement or problem. You must also include information about how to solve the problem (to the extent that you know how) in your hearing request. If you do not include all of this information, the hearing officer will notify you within 15 days that your request is “insufficient” to proceed to hearing.

Unless you and the school agree in writing to waive this meeting — called a resolution session — or agree to use mediation, the school must convene the resolution session with you and relevant members of the IEP team within 15 days of receiving your request. This is an opportunity for your and the school to resolve your disagreement with their proposal or refusals. A written settlement agreement is binding on both parties, but you and the school have three business days to back out of the agreement.

Should you not be able to resolve your complaint through the resolution session, mediation or a settlement agreement, a hearing officer will review your request and hold a hearing. The hearing is similar to a court trial and includes witnesses, questioning and cross-examination, and presentation of evidence by each side.

This includes 30 days for the resolution process and 45 days for the hearing process. Often the timeline is exceeded, however, because the hearing officer grants one or both parties extensions for good cause. Once the hearing officer has heard all testimony, he or she has the power to order any solution to the problem that is appropriate.

Although the law does not require it, most parents hire an attorney to help them prepare a case and guide them through the complicated hearing process. The Department of Education (DOE) will give you a list of free or low cost attorney’s. if you request it. The DOE will also reimburse you for legal fees if you “prevail” in the hearing process — if the hearing officer decides in your favor, or if the school settles your case before the hearing by making the changes you requested. Be aware that your attorney can be required to pay DOE’s legal fees, if DOE prevails and the court decides a hearing request was trivial, unreasonable or without basis. Parents and/or their attorney may also be required to pay legal fees for DOE when DOE prevails, and the court believes the purpose of the hearing request was to harass DOE, delay a decision or increase court costs.

Some of these rights include: deciding whether the hearing should be open or closed to the public, requesting that no evidence be introduced that was not shared five business days before the hearing, receiving records that the school district will present and being made aware of who their witnesses will be at least 5 business days before the hearing, and receiving the record of the hearing and the findings of fact and decisions at no cost.

Unless you agree to have your child placed in another setting, or unless your child has been placed in an interim alternative educational setting, he or she will remain in the current educational placement while you wait for the hearing decision. (see DISCIPLINE).

If you do not agree with the hearing officer’s decision, you may appeal it within 30 days. Your appeal is made by filling a complaint in federal or state court. The court will make its decision based on its review of the due process hearing and new information presented in court.