Chapter 5.16: Expedited Due Process Hearing

    State Performance Plan (SPP):

    (See Overview in the Introduction for information on the SPP.)

    Intent:

    To provide school districts and parents with a prompt, formal administrative hearing procedure for resolving a disagreement regarding a disciplinary decision.

    Timelines:

    For contacting the Ohio Department of Education and parents

    On the day the expedited due process hearing is requested

    If the school district initiates an expedited due process hearing, school district of residence personnel must contact the Ohio Department of Education, Office for Exceptional Children on the day the expedited due process hearing is requested.

    Before the end of the next business day

    If a parent requests an expedited due process hearing, school district of residence personnel must contact the Ohio Department of Education, Office for Exceptional Children before the end of the next business day following receipt of the parent’s request.

    An impartial hearing officer will be appointed by the Ohio Department of Education, Office for Exceptional Children before the end of the business day following the day the Ohio Department of Education, Office for Exceptional Children is informed.

    No later than the end of the next business day

    If the school district initiates an expedited due process hearing, it shall provide the parents with notification of the request for the hearing and a copy of Whose IDEA Is This? no later than the end of the next business day. (Whose IDEA Is This? must be provided only upon receipt of the first due process complaint in a school year.)

    "Business day" means Monday through Friday, except for federal and state holidays (unless holidays are specifically included in the designation of business day).

    For the expedited due process hearing

    Within seven calendar days

    A resolution meeting must occur within seven days of receiving notice of the due process complaint, unless the parents and school district of residence agree in writing to waive the resolution meeting or agree to participate in state mediation. No extension of time shall be granted.

    Within 15 calendar days

    The due process hearing may proceed, unless the matter has been resolved to the satisfaction of both parties within 15 days of the receipt of the due process complaint.

    Within 20 school days

    The expedited due process hearing must occur within 20 school days of the date the complaint requesting the hearing is filed. No extension of time shall be granted.

    "School days" means any day, including a partial day, that children are in attendance at school for instructional purposes. School day has the same meaning for all children in school, including children with and without disabilities.

    Within 10 school days

    The hearing officer must make a determination within 10 school days after the hearing.

    Within 45 calendar days

    The decision of the hearing officer is final, unless a party to the expedited due process hearing appeals the decision to the Ohio Department of Education within 45 calendar days of the notification of the decision. In consideration of the issues that are the basis of the expedited appeal, the appeal should be filed as soon as possible.

    No later than 30 calendar days

    The state level review officer will issue a written decision no later than 30 calendar days from the date the Ohio Department of Education receives the request. No extensions of time shall be granted.

    REQUIREMENT

    3301-51-05
    (K) Conflict Resolution
    (22 Appeal
    (a) General
    The parent of a child with a disability who disagrees with any decision regarding placement under paragraphs (K)(20) and (K)(21) of this rule, or the manifestation determination under paragraph (K)(20)(e) of this rule, or a school district that believes that maintaining the current placement of the child is substantially likely to result in injury to the child or others, may appeal the decision by requesting a hearing. The hearing is requested by filing a due process complaint pursuant to paragraphs (K)(7) and (K)(8) of this rule.

    (c) Expedited due process hearing

    (i) Whenever a hearing is requested under paragraph (K)(22)(a) of this rule, the parents or the school district involved in the dispute must have an opportunity for an impartial due process hearing consistent with the requirements of this rule, except as provided in paragraphs (K)(7), (K)(8)(a) to (K)(8)(d), and (K)(9) to (K)(14) of this rule.
    (ii) The Ohio Department of Education or the school district of residence is responsible for arranging the expedited due process hearing, which must occur within twenty school days of the date the complaint requesting the hearing is filed. The hearing officer must make a determination within ten school days after the hearing.
    (v) The decisions on expedited due process hearings are appealable consistent with paragraph (K)(14) of this rule.

    (d) Procedures for expedited due process hearings

    (i) If a parent requests an expedited due process hearing, school district of residence personnel must contact the Ohio Department of Education, Office for Exceptional Children, before the end of the next business day following receipt of the parent’s request.
    (ii) If a school district initiates an expedited due process hearing under this rule, school district of residence personnel must contact the Ohio Department of Education, Office for Exceptional Children, on the day the expedited due process hearing is requested. The school district shall provide the parents with notification of the request for the hearing and procedural safeguards no later than the end of the next business day.
    (iii) An impartial hearing officer will be appointed by the Ohio Department of Education, Office for Exceptional Children, before the end of the next business day from the day the school district of residence informs the Office for Exceptional Children.
    (a) The impartial hearing officer shall meet the qualifications set forth in paragraph (K)(10)(c) of this rule.
    (b) The impartial hearing officer shall contact both parties of the hearing.
    (iv) The expedited due process hearing shall be conducted in accordance with paragraphs (K)(12) and (K)(15) of this rule, except that no extensions of time shall be granted, and the hearing will occur within twenty school days of the date the complaint requesting the hearing was filed. The hearing officer’s decision will be completed within ten days of the conclusion of the hearing.
    (v) The decision of the hearing officer is final, unless a party to the expedited due process hearing appeals the decision to the Ohio Department of Education, within forty-five calendar days of the notification of the decision. In consideration of the issues that are the basis of the expedited appeal, the appeal should be filed as soon as possible.

    GUIDANCE

    What is an expedited due process hearing?

    "Expedited" means accelerated or speeded up in process or time.

    In general, an expedited due process hearing must comply with due process hearing requirements stated in IDEA and in Operating Standards for Ohio Educational Agencies Serving Children with Disabilities, except where its expedited nature affects timelines and processes established for the typical, non-expedited due process hearing.

    A brief description of the requirements that apply to a due process complaint and request for an expedited due process hearing is included in the chart "Due Process Complaints: A Quick Reference Guide."

    Refer to requirements and guidance in Procedural Safeguards - 5.15 Impartial Due Process Hearing

    Who may request an expedited due process hearing?

    Either the parents of a child with a disability or the school district has the right to request an expedited due process hearing to appeal decisions made during disciplinary procedures, although the reasons these parties may do so differ as follows:

    • Parents may appeal decisions regarding placement for disciplinary removals;
    • Parents may appeal the manifestation determination; and
    • The school district may appeal if it believes that maintaining the child's current placement is likely to result in injury to the child or to others.

    The school district of residence should attempt to resolve disputes with parents before filing a due process complaint and a request for a hearing. This includes communicating with parents about any disagreement and convening an individualized educational program (IEP) meeting, as appropriate, to discuss the matter and attempt to reach a solution.

    • The Ohio Department of Education, Office for Exceptional Children (ODE/OEC) offers interested parties the option of requesting a trained IEP facilitator to assist IEP team members with developing a satisfactory IEP.
    • If both the school district and the parents are interested in requesting IEP facilitation, a member of the IEP team submits a request to the ODE/OEC. See Procedural Safeguards - 5.9 Conflict Resolution.

    How do parents or a school district request an expedited due process hearing?

    Parents or a school district requests an expedited due process hearing by filing a due process complaint and a request for a hearing. The due process complaint and request for a hearing must include specific information as identified in Procedural Safeguards - 5.13 Due Process Complaints.

    • The parents file a due process complaint by submitting the original complaint and request to the superintendent and sending a copy to the ODE/OEC.
    • The school district files a due process complaint by submitting the original complaint and request to the parents and sending a copy to the ODE/OEC.
    • The school district provides the parents with Whose IDEA Is This? (This must be provided only upon the school district’s receipt of the first due process complaint in a school year).
    • Additionally, the rules that apply to all due process hearings require that the school district inform the parents of any free or low-cost legal services or other relevant services in the area. See Procedural Safeguards - 5.15 Impartial Due Process Hearing.

    Exception to requirements for non-expedited hearing:

    The requirements for non-expedited due process hearings allow the non-filing party to challenge the sufficiency of the due process complaint. Due to the shortened timelines, this requirement does not apply to an expedited due process hearing. Refer to Procedural Safeguards - 5.13 Due Process Complaints, for additional information.

    What are the timelines for the expedited due process hearing?

    The school district refers to the timelines listed at the beginning of this section and notes that some timelines refer to "calendar days," some to “business days” and others to "school days."

    When the requirements state "day" it means calendar day, unless otherwise indicated as "business day" or "school day."

    • "Business day" means Monday through Friday, except for federal and state holidays (unless holidays are specifically included in the designation of business day).
    • "School day" means any day, including a partial day, when children are in attendance at school for instructional purposes. School day has the same meaning for all children in school, including children with and without disabilities.

    Exception to requirements for non-expedited hearing:

    No extensions of time are granted. The school district implements the required procedures in accordance with the timelines for promptly resolving a disagreement regarding a disciplinary decision.

    REQUIREMENT

    3301-51-05
    (K) Conflict Resolution
    (22) Appeal
    (c) Expedited due process hearing (continued)

    (iii) Unless the parents and school district of residence agree in writing to waive the resolution meeting described in paragraph (K)(22)(c)(iii)(a) of this rule, or agree to use the mediation process described in paragraph (K)(3) of this rule:
    (a) A resolution meeting must occur within seven days of receiving notice of the due process complaint; and
    (b) The due process hearing may proceed unless the matter has been resolved to the satisfaction of both parties within fifteen days of the receipt of the due process complaint.

    GUIDANCE

    Why do the federal regulations and Operating Standards for Ohio Educational Agencies Serving Children with Disabilities require a resolution meeting?

    The IDEA and Operating Standards for Ohio Educational Agencies Serving Children with Disabilities strongly favor avoiding due process hearings, when possible, by resolving disputes through alternate, less adversarial and more cost-effective means. The resolution meeting provides both the parents and the school district an opportunity to meet and resolve the issues before conducting an expedited due process hearing.

    Upon receiving a due process complaint and request for hearing from the parents, the school district immediately contacts:

    • The ODE/OEC. This contact must be made before the end of the next business day following receipt of the parents' filing of a due process complaint and a request for a hearing; and
    • The parents. This contact is made to schedule the resolution meeting, which must occur within seven calendar days of receiving notice of the parents’ due process complaint.

    The school district informs the parents that a resolution meeting does not need to be held if the parents and the school district agree to:

    • Waive, in writing, the resolution meeting and proceed directly to the expedited due process hearing; or
    • Participate in mediation offered through the ODE/OEC.
    If both the parents and the school district agree to participate in state mediation, the school district follows the requirements and guidance set forth in Procedural Safeguards - 5.11 Mediation.
    • Parties to a hearing may participate in both a resolution meeting and mediation.They are not mutually exclusive.

    The resolution meeting must occur within seven calendar days of the district’s receipt of the due process complaint. If the issue is not resolved within 15 days, the expedited hearing may proceed.

    • The ODE/OEC offers interested parties the option of requesting a facilitator to assist with resolving the due process issues. Both the parents and the school district must agree to request a facilitator. Facilitated resolution meetings follow the requirements for the resolution meeting. If both parties agree to a facilitated resolution session, the school district submits a request to the ODE/OEC. See the Procedural Safeguards - 5.14 Resolution Process.
    • It is not necessarily expected that parties will reach agreement during the resolution meeting. The parties often need time to consider the resolution options offered at the meeting. The intent of the 15 days is to allow the parties sufficient time to consider these options and try to resolve the dispute by the end of the resolution period.(Federal Register, August 14, 2006, pg. 46725)

    If the school district files the due process complaint and requests an expedited due process hearing, there is no requirement for a resolution meeting. However, the school district and the parents may choose to voluntarily engage in mediation to resolve the disciplinary issues or voluntarily hold a resolution meeting.

    For additional requirements regarding the resolution meeting, including participants in the meeting, confidentiality of discussions, lack of parents or school district participation, and written settlement agreements, refer to Procedural Safeguards - 5.14 Resolution Process.

    • The requirements regarding participants in the resolution meeting state that the school district of residence must convene a meeting with the parents and the relevant member or members of the IEP team.
    • If a child is suspected of having a disability and is subject to disciplinary action but has not yet been determined eligible, school personnel and the parents determine the individuals to participate in the resolution meeting.

    REQUIREMENT

    3301-51-05
    (K) Conflict Resolution
    (22) Appeal
    (b) Authority of hearing officer

    (i) A hearing officer under paragraph (K)(10) of this rule hears and makes a determination regarding an appeal.
    (ii) In making the determination under paragraph (K)(22)(b)(i) of this rule, the hearing officer may:
    (a) Return the child with a disability to the placement from which the child was removed if the hearing officer determines that the removal was a violation of paragraph (K)(20) of this rule or that the child’s behavior was a manifestation of the child’s disability; or
    (b) Order a change of placement of the child with a disability to an appropriate interim alternative educational setting for not more than forty-five school days if the hearing officer determines that maintaining the current placement of the child is substantially likely to result in injury to the child or to others.
    (iii) The procedures under paragraphs (K)(22)(a), (K)(22)(b)(i), and (K)(22)(b)(ii) of this rule may be repeated, if the school district believes that returning the child to the original placement is substantially likely to result in injury to the child or others.

    GUIDANCE

    What authority does a hearing officer have in an expedited due process hearing?

    The hearing officer has the authority to determine:

    • Whether a child’s removal from a placement violated the authority of school personnel to make a change in placement for disciplinary reasons;
    • Whether a child’s behavior was a manifestation of his or her disability; and
    • Whether maintaining the child’s current placement is substantially likely to result in injury to the child or to others.

    The hearing officer also has the authority to:

    • Return the child to the placement from which he or she was removed, if the removal was a violation of applicable requirements or the child’s behavior was a manifestation of his or her disability; or
    • Order that a child’s placement be changed to an appropriate interim alternative educational setting for up to 45 school days if the hearing officer determines that maintaining the current placement is likely to result in injury to the child or others.

    What do the above requirements stating "the procedures…may be repeated" mean?

    The school district may ask the impartial hearing officer to continue the placement in the interim alternative educational setting for up to another 45 school days.

    This means if the school district does not want the child returned to the original placement after the 45-day period expires, the school district may file another due process complaint and request for an expedited due process hearing to continue the alternative placement ordered by the impartial hearing officer for up to 45 additional days.

    Removals involving special circumstances and expedited due process hearings:

    Note that the school district has the discretion to unilaterally remove a child with a disability from his or her current placement to an interim alternative educational setting for up to 45 school days if the special circumstances involving weapons, drugs or serious bodily injury are present.

    "Serious bodily injury" means bodily injury that involves:

    • A substantial risk of death;
    • Extreme physical pain;
    • Protracted and obvious disfigurement; or
    • Protracted loss or impairment of the function of a bodily member, organ or mental faculty (18 U.S.C. 1365(h)(3).

    To continue the child's placement in the interim alternative educational placement after the 45-school-day period has expired, the school district must seek permission from the hearing officer by filing a due process complaint and requesting an expedited due process hearing. (Federal Register, August 14, pg. 2006, 46722 and (Pagano, L. (2008, February). Options for dispute resolution (Module 18). Building the legacy:IDEA 2004 training curriculum. Washington, DC: National Dissemination Center for Children with Disabilities. Available online at http://www.nichcy.org/training/contents.asp).

    REQUIREMENT

    3301-51-05
    (K) Conflict Resolution
    (22) Appeal
    (d) Procedures for expedited due process hearings (continued)

    (v) The decision of the hearing officer is final, unless a party to the expedited due process hearing appeals the decision to the Ohio Department of Education, within forty-five calendar days of the notification of the decision. In consideration of the issues that are the basis of the expedited appeal, the appeal should be filed as soon as possible.
    (a) The state level review officer will be appointed in accordance with paragraph (K)(14)(b) of this rule;
    (b) The state level review will be conducted in accordance with paragraphs (K)(14) and (K)(15) of this rule, except that no extensions of time shall be granted, and the written decision shall be issued no later than thirty days from the date the Ohio Department of Education receives the request.
    (c) The final order of the state level review officer may be appealed to the courts in accordance with paragraph (K)(17) of this rule.

    GUIDANCE

    Hearing decision and appeal

    If either party is not satisfied with the impartial hearing officer’s decision, that party may appeal the decision to the ODE within 45 days of the notification of the decision the ODE will appoint a state-level review officer.

    The party filing the appeal should take into consideration that the issue(s) being addressed involve a disciplinary situation and should file the appeal as soon as possible.

    Exceptions to requirement for non-expedited hearing:

    No extensions of time are granted. Refer to requirements and guidance in Procedural Safeguards - 5.15 Impartial Due Process Hearing.

    REQUIREMENT

    3301-51-05
    (K) Conflict Resolution
    (23) Placement during appeals
    When an appeal under paragraph (K)(22) of this rule has been made by either the parent or the school district of residence, the child must remain in the interim alternative educational setting pending the decision of the hearing officer or until the expiration of the time period specifed in paragraphs (K)(20)(c) or (K)(20)(g) of this rule, whichever occurs first, unless the parent and the Ohio Department of Education or school district agree otherwise.
     

    GUIDANCE

    The school district maintains the child’s educational placement in accordance with the above requirements.

    Which time period applies?

    • The requirements noted above reference the time period for the disciplinary action. To determine what time period applies, first ask how the child was disciplined.

    Was the child disciplined under school code of conduct violations that involved a disciplinary change of placement for misconduct that was determined not to be a manifestation of the child’s disability?

    • If the answer is "yes," the time period would be the same time period the school applies to children without disabilities being disciplined for such a violation of the school code of conduct.
    • If this time period expires before the hearing officer makes a determination, the child with a disability is returned to the original placement from which he or she was removed as a result of the violation of the school code of conduct, unless the parents and the ODE or the school district agree otherwise.

    OR

    Was the child disciplined under special circumstances for weapon or drug violations, or serious bodily injury?

    • If the answer is "yes", the time period would be up to 45 days; that is, school personnel may remove a child to an interim alternative placement for up to 45 school days, without regard to whether the behavior is determined to be a manifestation of the child’s disability, if the violation involves weapons or drugs or serious bodily injury.
    • If the 45-day time period expires before the hearing officer makes a determination, the child with a disability is returned to the original placement from which he or she was removed as a result of the violation, unless the parents and the ODE or the school district agree otherwise.

    Pending the hearing officer's decision, the parents and the school district, not the IEP team, may agree to change the time period of the removal or the interim placement of the child (Federal Register, August 14, 2006, pg. 46726 and Bradley, R. (2007, October). Key issues in discipline (Module 19). Building the legacy: IDEA 2004 training curriculum. Washington, D.C.: National Dissemination Center for Children with Disabilities. Available online at http://nichcy.org/training/contents.asp).

     

Last Modified: 7/11/2013 4:03:04 PM