Chapter 5.15: Impartial Due Process Hearing

    State Performance Plan (SPP):

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

    SPP 17:
    Percent of fully adjudicated due process hearing requests that were fully adjudicated within the 45-day timeline or a timeline that is properly extended by the hearing officer at the request of either party. (20.U.S.C. 1416 (a)(3)(B))

    Intent:

    To provide parents, school districts (LEAs), county boards of MR/DD and other educational agencies with a formal due process hearing to resolve disagreements related to the identification, evaluation, education placement or provision of a free appropriate public education (FAPE) for a child with a disability. A party requesting a due process hearing must file a due process complaint.

    Timelines:

    Not later than 45 calendar days

    A final decision must be reached in the hearing and a copy of the decision mailed to each of the parties involved in the due process hearing not later than 45 calendar days after the expiration of the 30-day resolution period or the adjusted time periods. The 30-day resolution period is adjusted and the 45-day timeline starts the day after one of the following occurs:

    • Both parties agree in writing to waive the resolution meeting;
    • After either the state mediation or resolution meeting starts, but before the end of the 30-day period, the parties agree in writing that no agreement is possible;
    • If both parties agree in writing to continue the state mediation at the end of the 30-day resolution period, but later the parent or school district of residence withdraws from the state mediation process.

    Timelines for an expedited due process hearing

    (A hearing to appeal decisions made during disciplinary procedures regarding a child with disabilities.)

    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.

    Within 10 school days

    The hearing officer's decision will be completed within 10 school days of the conclusion of the hearing.

    • "School days" means any day, including a partial day, that children are in attendance at school for instructional purposes.

    REQUIREMENT

    3301-51-05
    (K) Conflict Resolution
    (10) Impartial due process hearing
    (a) General
    Whenever a due process complaint is received under paragraph (K)(7) or (K)(22) of this rule, the parents or the school district of residence involved in the dispute must have an opportunity for an impartial due process hearing consistent with the procedures in paragraphs (K)(7) to (K)(9) of this rule.

    (b) School district responsible for conducting the due process hearing
    The hearing described in paragraph (K)(10)(a) of this rule must be conducted by the school district of residence as provided by section 3323.05 of the Revised Code, the provisions of this rule, and procedures of the Ohio Department of Education.

    GUIDANCE

    Expedited due process hearings

    The parents or the school district may submit a due process complaint and file a request for an expedited due process hearing to appeal decisions made during disciplinary procedures. An expedited due process hearing may be requested;

    • By the school district if the district believes that maintaining the current placement of the child is substantially likely to result in injury to the child or to others; or
    • By the parents if they disagree with the manifestation determination or with a decision regarding placement for disciplinary removals.

    An expedited hearing must comply with the IDEA and Operating Standards for Ohio Educational Agencies Serving Children with Disabilities provisions for due process hearings in general (e.g., hearing rights), except where the hearing's expedited nature affects timelines and processes (e.g., the sufficiency of a due process complaint cannot be challenged by the non-filing party in an expedited hearing).

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

    See Procedural Safeguards - 5.16 Expedited Due Process Hearing for the requirements and guidance that apply.

    General

    If the school district of residence and the parents are unable or unwilling to resolve the issue that is the subject of a due process complaint through other, less formal dispute resolution processes such as the resolution meeting or state mediation, they proceed to a due process hearing.

    The child’s school district of residence is responsible for conducting the hearing, utilizing the hearing officer appointed by the Ohio Department of Education, Office for Exceptional Children (ODE/OEC). Impartial hearing officers are attorneys licensed to practice law in Ohio who have successfully completed training provided by the Ohio Department of Education.

    An impartial due process hearing is a formal, administrative procedure during which all parties have the opportunity to present their views in a legal setting, using witnesses, testimony, documents and legal arguments that each party believes are important for the hearing officer to consider in deciding the issues in the hearing. The hearing officer issues a decision no later than 45 calendar days after the expiration of the 30-day resolution period or the adjusted time periods. (In the case of an expedited due process hearing, the timeline is 30 school days and the resolution period is 15 calendar days.) Since the due process hearing is a legal proceeding, parties often choose to be represented by legal counsel.

    Upon receiving a due process complaint notice from the parents or another agency, the school district follows the guidance set forth under Procedural Safeguards - 5.13 Due Process Complaints and Procedural Safeguards - 5.14 Resolution Process.

    Once a hearing officer is appointed by the ODE/OEC, the district of residence immediately contacts the hearing officer and provides him or her with the contact information (name, phone numbers, address, and e-mail address) of the superintendent or designee who will assist the hearing officer in making arrangements for the hearing.

    REQUIREMENT

    3301-51-05
    (K) Conflict Resolution
    (10) Impartial due process hearing
    (d) Subject matter of the due process hearing
    The party requesting the due process hearing may not raise issues at the due process hearing that were not raised in the due process complaint filed under paragraph (K)(8)(b) of this rule, unless the other party agrees otherwise.

    GUIDANCE

    Subject matter of the due process hearing

    If the school district is requesting the due process hearing, it assures that its due process complaint notice (Due Process Complaint and Request for a Due Process Hearing form) is complete and clearly describes the nature of the problem, including related facts.

    If the parents or other agency are requesting the due process hearing, the school district should make reasonable efforts before the hearing to have all issues identified and clearly understood. These efforts include:

    • Agreeing to an amendment of the other party's due process complaint if the hearing officer found it to be insufficient (Optional - see Procedural Safeguards - 5.13 Due Process Complaints);
    • Participating in the resolution meeting with the parents, unless the parties agree in writing to waive the resolution process or use state mediation available through the ODE/OEC (Required - see Procedural Safeguards - 5.14 Resolution Process and Procedural Safeguards - 5.11 Mediation) ;
    • Participating in state mediation with the parents that have filed the due process complaint after a resolution session that was not successful has been held (Optional); and
    • Participating in state mediation with another agency that has filed the due process complaint (Optional).

    If the parents file both a due process complaint and a written state complaint that contains multiple issues of which one or more are part of the due process hearing, the ODE/OEC will set aside any part of the state complaint that is being addressed in the due process hearing, until the hearing concludes. However, any issue in the state complaint that is not part of the due process hearing must be resolved in accordance with the requirements set forth under Procedural Safeguards - 5.12 State Complaints. [OAC 3301-51-05(K)(5)(c)].

    REQUIREMENT

    3301-51-05
    (K) Conflict Resolution
    (10) Impartial due process hearing
    (e) Timeline for requesting a hearing
    A parent or public agency must request an impartial hearing on their due process complaint within two years of the date the parent or the agency knew or should have known about the alleged action that forms the basis of the due process complaint.

    (f) Exceptions to the timeline: The timeline described in paragraph (K)(10)(e) of this rule, does not apply to a parent if a parent was prevented from filing a due process complaint due to:

    (i) Specific misrepresentations by the school district that it had resolved the problem forming the basis of the due process complaint; or
    (ii) The school district’s withholding of information from the parent that was required under this rule to be provided to the parent.

    GUIDANCE

    Timeline and exceptions for requesting a hearing

    The timeline for filing a due process complaint is stated in the above requirement.

    The hearing officer is responsible for determining, on a case-by-case basis, any exceptions to the two-year timeline, including factors affecting whether the parent or the agency "knew" or "should have known" about the action that is the basis for the complaint.

    "Misrepresentations" are not defined or clarified in the federal regulations. Such matters are within the purview of the hearing officer. If the complaining party believes that the two-year timeline should not apply, the complaining party should ask the hearing officer to determine whether an otherwise untimely due process complaint can proceed to a hearing based on misrepresentations by the school district or the school district's withholding of information (Federal Register, August 14, 2006, pg. 46706). The non-complaining party may choose to challenge the untimely filing.

    REQUIREMENT

    3301-51-05
    (K) Conflict Resolution
    (12) Responsibility of hearing officer
    The impartial hearing officer has the responsibility of:

    (a) Notifying all parties of the date, time and location of the hearing;
    (b) Arranging a disclosure conference at least five business days prior to the hearing to assure that information to be presented at the hearing is disclosed.
    (c) Issuing a subpoena or a subpoena duces tecum when relevant, necessary, and material, with fees and mileage paid by the party requesting the subpoena:
    (i) Either party may request subpoenas to compel the attendance of witnesses at the hearing. Either party may request subpoenas duces tecum to compel the witnesses to bring specified documents to the hearing. Requests for subpoenas duces tecum are submitted to the hearing officer. The hearing officer signs the subpoenas.
    (ii) A subpoena may be served by an attorney at law, or by any person who is not a party and over the age of eighteen. Service of a subpoena upon a person named therein shall be made by delivering a copy of the subpoena to the person, by reading it to him or her in person, or by leaving it at the person’s usual place of residence. Service of subpoenas is solely the responsibility of the party requesting the subpoena and shall not be assumed by the impartial hearing officer.
    (d) Ruling on procedural issues presented at the hearing; and
    (e) Arriving at a written decision based solely on evidence and testimony presented at the hearing and mailing such decision, by certified mail, to the parties involved and the Ohio Department of Education, Office for Exceptional Children.

    GUIDANCE

    Responsibility of the hearing officer

    The hearing officer is responsible for the actions stated in the above requirements.

    If the school district requests the hearing officer to issue a subpoena, the district makes arrangements for the subpoena to be delivered to the person identified as a witness and follows the procedures identified in the above requirement.

    If the parents or other public agency request the hearing officer to issue a subpoena, the requesting party makes arrangements for the subpoena to be delivered to the person identified as a witness and follows the procedures identified in the above requirement.

    REQUIREMENT

    3301-51-05
    (K) Conflict Resolution
    (11) Hearing rights
    (a) General
    Any party to a hearing conducted pursuant to paragraphs (K)(2) and (K)(7) to (K)(13) of this rule or paragraphs (K)(20) to (K)(24) of this rule, or an appeal conducted pursuant to paragraph (K)(14) of this rule, has the right to:

    (i) Be accompanied and advised by counsel and by individuals with special knowledge or training with respect to the problems of children with disabilities;
    (ii) Present evidence and confront, cross-examine, and compel the attendance of witnesses;
    (iii) Prohibit the introduction of any evidence at the hearing that has not been disclosed at least five business days before the hearing;
    (iv) Obtain a written, or, at the option of the parents, electronic verbatim record of the hearing; and
    (v) Obtain written, or, at the option of the parents, electronic findings of fact and decisions;

    (c) Parental rights at hearing
    Parents involved in hearings must be given the right to:

    (i) Have the child who is the subject of the hearing present;
    (ii) Open the hearing to the public; and
    (iii) Have the record of the hearing and the findings of fact and decisions described in paragraphs (1)(a)(iv) and (11)(a)(v) of this rule provided at no cost to parents.

    3301-51-04
    (D) Access rights
    (1) Each participating agency must permit parents to inspect and review any education records relating to their children that are collected, maintained, or used by the agency under this rule. The agency must comply with a request without unnecessary delay and before any meeting regarding an individualized education program (IEP), or any hearing pursuant to rule 3301 -51-05 of the Administrative Code or resolution session pursuant to rule 3301-51-05 of the Administrative Code, and in no case more than forty-five days after the request has been made.

    GUIDANCE

    Hearing rights

    The hearing officer informs the parties of their hearing rights, as stated in the above requirements.

    If the parents request to inspect and review any education records relating to their child, the school district replies without unnecessary delay (See Confidentiality - 4.3 Access Rights).

    REQUIREMENT

    3301-51-05
    (K) Conflict Resolution
    (15) Timelines and convenience of hearings and reviews

    (a) The Ohio Department of Education must ensure that not later than forty-five days after the expiration of the thirty-day period under paragraph (K)(9)(b) of this rule, or the adjusted time periods described in paragraph (K)(9)(c) of this rule:
    (i) A final decision is reached in the hearing; and
    (ii) A copy of the decision is mailed to each of the parties.
    (c) A hearing or reviewing officer may grant specific extensions of time beyond the periods set out in paragraphs (K)(15)(a) and (K)(15)(b) of this rule at the request of either party.
    (d) Each hearing and each review involving oral arguments must be conducted at a time and place that is reasonably convenient to the parents and child involved.

    (K) Conflict Resolution
    (9) Resolution process
    (c) Adjustments to thirty-day resolution period
    The forty-five day timeline for the due process hearing in paragraph (K)(15)(a) of this rule starts the day after one of the following events:

    (i) Both parties agree in writing to waive the resolution meeting;
    (ii) After either the mediation or resolution meeting starts but before the end of the thirty-day period, the parties agree in writing that no agreement is possible;
    (iii) If both parties agree in writing to continue the mediation at the end of the thirty-day resolution period, but later, the parent or school district of residence withdraws from the mediation process.

    GUIDANCE

    Timelines and adjustments

    Not later than 45 calendar days after the 30-day resolution period expires, the hearing officer issues a final decision and mails a copy to each of the parties. Exceptions to these timelines may occur if:

    • The 30-day resolution period is adjusted for events stated in the requirements above; and/or
    • The hearing officer grants an extension of time.

    Withdrawal of request

    If the party requesting the due process hearing chooses to withdraw its due process complaint and request for a due process hearing after the end of the 30-day resolution period, a dismissal order will be issued by the impartial hearing officer. The party withdrawing its request completes the Due Process Resolution Data and Withdrawal form.

    If the parents have requested the due process hearing, they complete the form and return it to the school district. The district immediately mails or faxes a copy of the completed form to the ODE/OEC.

    If the party requesting the due process hearing chooses to withdraw its due process complaint and request for a due process hearing before the end of the 30-day resolution period, there is no dismissal order. However, the party withdrawing its request must complete the Due Process Resolution Data and Withdrawal form.

    Convenience of hearings

    School district personnel contact the parties involved and make every effort to schedule the hearing at a time and place that is "reasonably convenient" for all the parties involved. However, given the many individuals that may be involved in a hearing, it is likely that hearings would be delayed for long periods if the times and locations must be “mutually convenient” (Federal Register, August 14, 2006, pg. 46707).

    The school district makes arrangements for any accommodations that may be needed by parties (parents, other agency personnel, witnesses, the child if attending the hearing) who will be participating in the due process hearing such as:

    • Interpreter services for individuals who are hearing impaired or deaf;
    • Interpreter services for parents whose native language is not English;
    • An accessible location for individuals who are physically impaired; and
    • Braille for individuals who are visually impaired.

    REQUIREMENT

    3301-51-05
    (K) Conflict Resolution
    (11) Hearing rights
    (b) Additional disclosure of information

    (i) At least five business days prior to a hearing conducted pursuant to paragraph (K)(10)(a) of this rule, each party must disclose to all other parties all evaluations completed by that date and recommendations based on the offering party’s evaluations that the party intends to use at the hearing.
    (ii) A hearing officer may bar any party that fails to comply with paragraph (K)(11)(b)(i) of this rule from introducing the relevant evaluation or recommendation at the hearing without the consent of the other party.

    GUIDANCE

    Disclosure of information

    School district personnel prepare for the disclosure conference by:

    • Reviewing the child’s education records, identifying all evaluations that have been completed as of that date, and making recommendations based on these evaluations (recommendations may be included in a proposed IEP or prior written notice);
    • Reviewing the child’s education records to determine whether there are other documents that are relevant to the issue identified in the due process complaint;
    • Organizing the selected documents in chronological order;
    • Determining whether any additional evidence must be obtained in time for the hearing;
    • Reviewing the identified documents with the district’s attorney (optional) and finalizing, numbering and indexing documents that will be disclosed;
    • Identifying witnesses the district plans to call;
    • Requesting the impartial hearing officer to issue subpoenas or subpoenas duces tecum to compel witnesses to attend and bring specified documents to the hearing; and
    • Duplicating documents and providing copies to identified witnesses, opposing counsel and the impartial hearing officer.

    School district personnel participate in the disclosure conference and disclose at least five business days prior to the hearing evidence that they plan to introduce during the hearing. A hearing officer may bar any party that fails to comply with the disclosure requirement from introducing the relevant information or recommendations at the hearing, without the consent of the other party.

    There is nothing in the federal regulations or Operating Standards for Ohio Educational Agencies Serving Children with Disabilities to prevent the parties to a hearing from agreeing to disclose relevant information to all other parties fewer than five business days before a due process hearing (Federal Register, August 14, 2006, pg. 46706).

    The school district prepares for the hearing by working with its attorney to (Optional):

    • Develop testimony that is free of educational jargon;
    • Meet with any witnesses the district plans to call; and
    • Identify potential questions for witnesses to be called by the parents or other agency (the witness list must be disclosed five days prior to the hearing).

     

    REQUIREMENT

    3301-51-05
    (K) Conflict Resolution
    (13) Hearing decisions
    (a) Decision of hearing officer on the provision of FAPE

    (i) Subject to paragraph (K)(13)(a)(ii) of this rule, a hearing officer’s determination of whether a child received FAPE must be based on substantive grounds.
    (ii) In matters alleging a procedural violation, a hearing officer may find that a child did not receive FAPE only if the procedural inadequacies:
    (a) Impeded the child’s right to FAPE;
    (b) Significantly impeded the parent’s opportunity to participate in the decision-making process regarding the provision of FAPE to the parent’s child; or
    (c) Caused a deprivation of educational benefits.
    (iii) Nothing in paragraph (K)(13)(a) of this rule shall be construed to preclude a hearing officer from ordering a school district to comply with procedural requirements under this rule.

    (b) Construction clause

    Nothing in paragraphs (K)(2) and (K)(7) to (K)(13) of this rule shall be construed to affect the right of a parent to file an appeal of the due process hearing decision with the Ohio Department of Education.

    (c) Separate request for a due process hearing

    Nothing in this rule shall be construed to preclude a parent from filing a separate due process complaint on an issue separate from a due process complaint already filed.

    (14) Finality of decision, appeal; impartial review
    (a) Finality of hearing decision
    A decision made in a hearing conducted pursuant to this rule is final, except that any party involved in the hearing may appeal the decision under the provisions of paragraphs (K)(14)(b) and (K)(17) of this rule.

    GUIDANCE

    Hearing decisions

    The above requirements set forth the standard that must be applied when a hearing officer is deciding whether a child received a free appropriate public education (FAPE). According to these requirements, the hearing officer's decision must be made on “substantive grounds.” The National Center for State Courts defines "substantive law" as "The law dealing with rights, duties and liabilities, as contrasted with procedural law, which governs the technical aspects of enforcing civil or criminal law."

    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/Laws/IDEA/Pages/BuildingTheLegacy.aspx

    Additionally, the above requirements specifically address when a hearing officer can find that there is a denial of FAPE as the result of an alleged procedural violation.

    Separate request for a due process hearing

    If the parents chooses to file more than one due process request, each on separate issues, the school district follows the guidance in Procedural Safeguards - 5.13 Due Process Complaints and Procedural Safeguards - 5.14 Resolution Process.

    Finality of decision, appeal

    The school district will review the hearing officer’s decision and implement the decision if there is no appeal taken.

    The school district or the parents may appeal the decision to the Ohio Department of Education within 45 days of receiving the hearing decision.

    The child remains in the current placement unless the parents and the school district agree otherwise or until the state level review officer issues a decision that agrees with the parents' position regarding the child's placement.
     

    REQUIREMENT

    3301-51-05
    (K) Conflict Resolution
    (16) Costs of hearings

    (a) The school district of the child’s residence shall provide one copy of the written,, or at the option of the parents, an electronic verbatim record of the hearing and findings of fact and decisions to the parent at no cost.
    (b) All other cost incurred in impartial due process hearings requested by the parent shall be assumed by the school district of the child’s residence, except as follows:
    (i) Expert testimony, outside medical evaluation, witness fees, subpoena fees, and cost of counsel will be paid by the party requesting the services; and
    (ii) If requested by the parents or their attorney, additional copies of the record of the hearing and findings of fact and decisions.
    (c) When a school district, county board of MR/DD, or other educational agency providing special education and related services to a child requests the impartial due process hearing, the district, county board of MR/DD, or other educational agency will share equally the costs of the hearing with the school district of residence, except those costs included in paragraph (K)(16)(b) of this rule.
    (d) School districts shall compensate hearing officers upon invoice at an hourly rate not higher than that established for special counsel for the state of Ohio. School districts shall compensate hearing officers for no more that fifty hours of actual hearing time, excluding work done outside of the hearing, for any due process request unless the hearing officer submits to the Ohio Department of Education, Office for Exceptional Children a written rationale for a hearing to exceed fifty hours of hearing time.

    (K) Conflict Resolution
    (18) Attorneys’ fees
    (b) Prohibition on use of funds

    (i) Funds under Part B of the IDEA may not be used to pay attorneys’ fees or costs of a party related to any action or proceeding under Section 615 of the IDEA and Subpart E of Part B of the IDEA.
    (ii) Paragraph (K)(18)(b)(i) of this rule does not preclude the Ohio Department of Education or a school district from using funds under Part B of IDEA for conducting an action or proceeding under Section 615 of IDEA.

    GUIDANCE

    Costs for hearing requested by parents

    The school district pays for the costs incurred for an impartial due process hearing except for expert testimony, outside medical evaluation, witness fees, subpoena fees and cost of counsel requested by the other party to the hearing.

    The school district provides one copy of the record of the hearing and findings of fact and decisions to the parents at no cost. If the parents request additional copies, they are responsible for the cost.

    The school district compensates the hearing officer as provided in (d) in the above requirement.

    Costs for hearing requested by other public agency

    The school district shares the costs of the hearing with the other agency as stated in the above requirement.

    Use of Part B funds

    The school district may not use Part B funds to pay attorney fees or costs of either the district or the parents of a child with disabilities related to a hearing. However, it may use these funds for conducting an impartial due process hearing.

    REQUIREMENT

    3301-51-05
    (K) Conflict Resolution
    (13) Hearing decisions
    (d) Findings and decision to advisory panel and general public
    The Ohio Department of Education, after deleting any personally identifiable information, must:

    (i) Transmit the findings and decisions referred to in paragraph (K)(11)(a)(v) of this rule to the state advisory panel which is hereby established and shall be maintained in accordance with section 3323.06 of the Revised Code; and
    (ii) Make those findings and decisions available to the public.

    GUIDANCE

    Findings and decision to advisory panel and general public

    The ODE/OEC, after deleting any personally identifiable information, transmits the findings and decisions to Ohio's State Advisory Panel for Exceptional Children (SAPEC) and posts the decisions on the ODE Web site at http://education.ohio.gov, keyword search:due process case

     

Last Modified: 7/11/2013 4:02:52 PM