Video Summary: Code of Federal Regulations for Due Process

This video reviews the Code of Federal Regulations (CFR) under Title 34 of the Individuals with Disabilities Act (IDEA) regarding Due Process Hearings. As with all of our sections covering CFR, we will take excepts of any relevant sections from the IDEA for you to reference, and we will also summarize these sections in a more readable fashion. [Note the symbol “§” stands for section, while “§§” stands for sections.]

§ 300.507 Filing a due process complaint.

(a)General.(1) A parent or a public agency may file a due process complaint on any of the matters described in § 300.503(a)(1) and (2) (relating to the identification, evaluation or educational placement of a child with a disability, or the provision of FAPE to the child).

(2) The due process complaint must allege a violation that occurred not more than two years before the date the parent or public agency knew or should have known about the alleged action that forms the basis of the due process complaint, or, if the State has an explicit time limitation for filing a due process complaint under this part, in the time allowed by that State law, except that the exceptions to the timeline described in § 300.511(f) apply to the timeline in this section.

(b) Information for parents. The public agency must inform the parent of any free or low-cost legal and other relevant services available in the area if—

            (1) The parent requests the information; or

            (2) The parent or the agency files a due process complaint under this section.

Only you (the parent or guardian of the child in question) or your child’s school district may file for a due process hearing. A due process hearing must cover some violation regarding the identification, evaluation, placement of your child within the special education program, or the provision of a Free Appropriate Public Education (FAPE) to your child. A hearing must be filed within two years of the violation, or within two years of the school knowing there was a violation. Regardless of who files for a due process hearing, the school district must provide you with a list of free or low-cost legal services. You can also receive this list by asking the school district for it. You can also contact Legal Aid of Nebraska for this list.

(a)General. (1) The public agency must have procedures that require either party, or the attorney representing a party, to provide to the other party a due process complaint (which must remain confidential).

(2) The party filing a due process complaint must forward a copy of the due process complaint to the SEA.

(b)Content of complaint.The due process complaint required in paragraph (a)(1) of this section must include—

            (1) The name of the child;

            (2) The address of the residence of the child;

            (3) The name of the school the child is attending;

(4) In the case of a homeless child or youth (within the meaning of section 725(2) of the McKinney-Vento Homeless Assistance Act (42 U.S.C. 11434a(2)), available contact information for the child, and the name of the school the child is attending;

(5) A description of the nature of the problem of the child relating to the proposed or refused initiation or change, including facts relating to the problem; and

(6) A proposed resolution of the problem to the extent known and available to the party at the time.

When you or the school file a due process complaint, you must also provide the other party and the State Education Agency (SEA) with a copy of the complaint. A complaint must include the name, address, school and the child, relevant contact information (in cases where a child is homeless), what the problem or violation was, and a solution to that problem or violation.

(c)Notice required before a hearing on a due process complaint. A party may not have a hearing on a due process complaint until the party, or the attorney representing the party, files a due process complaint that meets the requirements of paragraph (b) of this section.

(d)Sufficiency of complaint.(1) The due process complaint required by this section must be deemed sufficient unless the party receiving the due process complaint notifies the hearing officer and the other party in writing, within 15 days of receipt of the due process complaint, that the receiving party believes the due process complaint does not meet the requirements in paragraph (b) of this section.

(2) Within five days of receipt of notification under paragraph (d)(1) of this section, the hearing officer must make a determination on the face of the due process complaint of whether the due process complaint meets the requirements of paragraph (b) of this section, and must immediately notify the parties in writing of that determination.

            (3) A party may amend its due process complaint only if—

(i) The other party consents in writing to the amendment and is given the opportunity to resolve the due process complaint through a meeting held pursuant to § 300.510; or

(ii) The hearing officer grants permission, except that the hearing officer may only grant permission to amend at any time not later than five days before the due process hearing begins.

(4) If a party files an amended due process complaint, the timelines for the resolution meeting in § 300.510(a) and the time period to resolve in § 300.510(b) begin again with the filing of the amended due process complaint.

Before a due process hearing can begin, both parties must have a copy of the complaint. The receiving party (in most cases, the school district) has fifteen days to determine whether the complaint they received has enough information for them to respond. The hearing officer in charge of your complaint has five days to make that determination (if requested), and must let both parties know that determination in writing. If the receiving party or hearing officer believe the complaint does not have enough information, you may have to amend the complaint.

(e)LEA response to a due process complaint.(1) If the LEA has not sent a prior written notice under § 300.503 to the parent regarding the subject matter contained in the parent’s due process complaint, the LEA must, within 10 days of receiving the due process complaint, send to the parent a response that includes—

(i) An explanation of why the agency proposed or refused to take the action raised in the due process complaint;

(ii) A description of other options that the IEP Team considered and the reasons why those options were rejected;

(iii) A description of each evaluation procedure, assessment, record, or report the agency used as the basis for the proposed or refused action; and

(iv) A description of the other factors that are relevant to the agency’s proposed or refused action.

If the school district feels the complaint is adequate, then they have ten days from the date they received the complaint to send you a response listing why they did or did not implement the complaint’s solution, any other options the Individualized Education Program (IEP) Team considered and why those were dismissed, how they evaluated each option, and any other factors relevant to their decision.

§ 300.510 Resolution process.

(a)Resolution meeting.(1) Within 15 days of receiving notice of the parent’s due process complaint, and prior to the initiation of a due process hearing under § 300.511, the LEA must convene a meeting with the parent and the relevant member or members of the IEP Team who have specific knowledge of the facts identified in the due process complaint that—

(i) Includes a representative of the public agency who has decision-making authority on behalf of that agency; and

(ii) May not include an attorney of the LEA unless the parent is accompanied by an attorney.

(2) The purpose of the meeting is for the parent of the child to discuss the due process complaint, and the facts that form the basis of the due process complaint, so that the LEA has the opportunity to resolve the dispute that is the basis for the due process complaint.

            (3) The meeting described in paragraph (a)(1) and (2) of this section need not be held if—

                        (i) The parent and the LEA agree in writing to waive the meeting; or

(ii) The parent and the LEA agree to use the mediation process described in § 300.506.

(4) The parent and the LEA determine the relevant members of the IEP Team to attend the meeting.

The school district must attempt to have a meeting to see if they can’t resolve the problem before the hearing. This meeting includes a representative from the school district who can make decisions for the school. The school cannot have an attorney at the meeting unless you have one as well. At this meeting, you should discuss your complaint with the school, and the school should work to see if the problem can be resolved without a hearing.

(b)Resolution period.(1) If the LEA has not resolved the due process complaint to the satisfaction of the parent within 30 days of the receipt of the due process complaint, the due process hearing may occur.

(2) Except as provided in paragraph (c) of this section, the timeline for issuing a final decision under § 300.515 begins at the expiration of this 30-day period.

(3) Except where the parties have jointly agreed to waive the resolution process or to use mediation, notwithstanding paragraphs (b)(1) and (2) of this section, the failure of the parent filing a due process complaint to participate in the resolution meeting will delay the timelines for the resolution process and due process hearing until the meeting is held.

(4) If the LEA is unable to obtain the participation of the parent in the resolution meeting after reasonable efforts have been made (and documented using the procedures in § 300.322(d)), the LEA may, at the conclusion of the 30-day period, request that a hearing officer dismiss the parent’s due process complaint.

(5) If the LEA fails to hold the resolution meeting specified in paragraph (a) of this section within 15 days of receiving notice of a parent’s due process complaint or fails to participate in the resolution meeting, the parent may seek the intervention of a hearing officer to begin the due process hearing timeline.

If you and the school cannot come to an agreement over the violation within 30 days of you filing the complaint, then the hearing proceeds as planned. If the school contacts you, but you do not respond or attend any resolution meeting, then the hearing officer can dismiss your complaint entirely, so it’s important that you take part in a resolution meeting, even if you don’t think you and the school can meet eye-to-eye on the matter. If the school fails to have the meeting, then the due process hearing again proceeds as planned.

(c)Adjustments to 30-day resolution period.The 45-day timeline for the due process hearing in § 300.515(a) starts the day after one of the following events:

            (1) Both parties agree in writing to waive the resolution meeting;

(2) After either the mediation or resolution meeting starts but before the end of the 30-day period, the parties agree in writing that no agreement is possible;

(3) If both parties agree in writing to continue the mediation at the end of the 30-day resolution period, but later, the parent or public agency withdraws from the mediation process.

(d)Written settlement agreement.If a resolution to the dispute is reached at the meeting described in paragraphs (a)(1) and (2) of this section, the parties must execute a legally binding agreement that is—

(1) Signed by both the parent and a representative of the agency who has the authority to bind the agency; and

(2) Enforceable in any State court of competent jurisdiction or in a district court of the United States, or, by the SEA, if the State has other mechanisms or procedures that permit parties to seek enforcement of resolution agreements, pursuant to § 300.537.

(e) Agreement review period. If the parties execute an agreement pursuant to paragraph (c) of this section, a party may void the agreement within 3 business days of the agreement’s execution.

The 45-day timeframe of the due-process hearing starts after you and school district agree that you cannot resolve the issue after the resolution meeting, when both of you agree to cancel the resolution meeting, or you and the school agree that further mediation is necessary, and one of the parties involved drops out of this extended mediation.

If you and the school do come to an agreement, then both parties must write up a legally-binding agreement, signed by both parties, enforceable by State courts around the United States or the SEA. You have three days after signing to change your mind about agreeing to the agreement.

§ 300.511 Impartial due process hearing.

(a)General.Whenever a due process complaint is received under § 300.507 or § 300.532, the parents or the LEA involved in the dispute must have an opportunity for an impartial due process hearing, consistent with the procedures in §§ 300.507, 300.508, and 300.510.

(b)Agency responsible for conducting the due process hearing.The hearing described in paragraph (a) of this section must be conducted by the SEA or the public agency directly responsible for the education of the child, as determined under State statute, State regulation, or a written policy of the SEA.

(c)Impartial hearing officer.(1) At a minimum, a hearing officer—

(i) Must not be—

(A) An employee of the SEA or the LEA that is involved in the education or care of the child; or

(B) A person having a personal or professional interest that conflicts with the person’s objectivity in the hearing;

(ii) Must possess knowledge of, and the ability to understand, the provisions of the Act, Federal and State regulations pertaining to the Act, and legal interpretations of the Act by Federal and State courts;

(iii) Must possess the knowledge and ability to conduct hearings in accordance with appropriate, standard legal practice; and

(iv) Must possess the knowledge and ability to render and write decisions in accordance with appropriate, standard legal practice.

(2) A person who otherwise qualifies to conduct a hearing under paragraph (c)(1) of this section is not an employee of the agency solely because he or she is paid by the agency to serve as a hearing officer.

(3) Each public agency must keep a list of the persons who serve as hearing officers. The list must include a statement of the qualifications of each of those persons.

This section covers the State standards that ensure impartiality during the due process hearing. The SEA must handle the hearing, but the hearing officer must not be an employee of the SEA, the school district, or be in any way involved in your child’s education, and they cannot have a conflict of interest. They must have knowledge of the IDEA and the hearing process, and be able to make decisions in writing.

(d)Subject matter of due process hearings.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 § 300.508(b), unless the other party agrees otherwise.

(e) Timeline for requesting a hearing. A parent or agency must request an impartial hearing on their due process complaint within two years of the date the parent or agency knew or should have known about the alleged action that forms the basis of the due process complaint, or if the State has an explicit time limitation for requesting such a due process hearing under this part, in the time allowed by that State law.

(f)Exceptions to the timeline.The timeline described in paragraph (e) of this section does not apply to a parent if the parent was prevented from filing a due process complaint due to—

(1) Specific misrepresentations by the LEA that it had resolved the problem forming the basis of the due process complaint; or

(2) The LEA’s withholding of information from the parent that was required under this part to be provided to the parent.

If an issue or violation was not brought up in the written complaint, it cannot be brought up during the hearing. Again, any issue brought up in the complaint must have occurred within the last two years, unless the school district misrepresented some information that lead you to believe the problem was taken care of, or they withheld information from you to the same effect.

§ 300.512 Hearing rights.

(a)General.Any party to a hearing conducted pursuant to §§ 300.507 through 300.513 or §§ 300.530 through 300.534, or an appeal conducted pursuant to § 300.514, has the right to—

(1) Be accompanied and advised by counsel and by individuals with special knowledge or training with respect to the problems of children with disabilities;

(2) Present evidence and confront, cross-examine, and compel the attendance of witnesses;

(3) Prohibit the introduction of any evidence at the hearing that has not been disclosed to that party at least five business days before the hearing;

(4) Obtain a written, or, at the option of the parents, electronic, verbatim record of the hearing; and

(5) Obtain written, or, at the option of the parents, electronic findings of fact and decisions.

(b)Additional disclosure of information.(1) At least five business days prior to a hearing conducted pursuant to § 300.511(a), 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.

(2) A hearing officer may bar any party that fails to comply with paragraph (b)(1) of this section from introducing the relevant evaluation or recommendation at the hearing without the consent of the other party.

At the hearing, you can be advised by a counsel of experts, hire an attorney/advocate, or represent yourself (we recommend that you have an attorney present). You can also present evidence, cross-examine and compel witnesses (i.e., have subpoenas to summon them to court and question them), prevent untimely evidence from showing up in court (evidence is untimely if it was not presented to both parties at least five days before the trial), and obtain records of events to use as evidence.

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

            (1) Have the child who is the subject of the hearing present;

            (2) Open the hearing to the public; and

(3) Have the record of the hearing and the findings of fact and decisions described in paragraphs (a)(4) and (a)(5) of this section provided at no cost to parents.

As a parent or guardian, you have the right to bring your child (the one whose education is in question) to the hearing, have the hearing be open to the public, and receive a record of the hearing, as well as the findings and facts of that hearing at no cost.

§ 300.513 Hearing decisions.

(a)Decision of hearing officer on the provision of FAPE.(1) Subject to paragraph (a)(2) of this section, a hearing officer’s determination of whether a child received FAPE must be based on substantive grounds.

(2) In matters alleging a procedural violation, a hearing officer may find that a child did not receive a FAPE only if the procedural inadequacies—

                        (i) Impeded the child’s right to a FAPE;

(ii) Significantly impeded the parent’s opportunity to participate in the decision-making process regarding the provision of a FAPE to the parent’s child; or

                        (iii) Caused a deprivation of educational benefit.

(3) Nothing in paragraph (a) of this section shall be construed to preclude a hearing officer from ordering an LEA to comply with procedural requirements under §§ 300.500 through 300.536.

This section outlines what evidence a hearing officer uses to make their decisions. If you are arguing a procedural violation of FAPE, then the officer can find that your child did not in fact receive FAPE if the violation in question affected your child’s FAPE, their education in general, or your ability to be a part of the implementation of your child’s FAPE.

§ 300.514 Finality of decision; appeal; impartial review.

(a)Finality of hearing decision.A decision made in a hearing conducted pursuant to §§ 300.507 through 300.513 or §§ 300.530 through 300.534 is final, except that any party involved in the hearing may appeal the decision under the provisions of paragraph (b) of this section and § 300.516.

(b)Appeal of decisions; impartial review.(1) If the hearing required by § 300.511 is conducted by a public agency other than the SEA, any party aggrieved by the findings and decision in the hearing may appeal to the SEA.

(2) If there is an appeal, the SEA must conduct an impartial review of the findings and decision appealed. The official conducting the review must—

                        (i) Examine the entire hearing record;

(ii) Ensure that the procedures at the hearing were consistent with the requirements of due process;

(iii) Seek additional evidence if necessary. If a hearing is held to receive additional evidence, the rights in § 300.512 apply;

(iv) Afford the parties an opportunity for oral or written argument, or both, at the discretion of the reviewing official;

                        (v) Make an independent decision on completion of the review; and

(vi) Give a copy of the written, or, at the option of the parents, electronic findings of fact and decisions to the parties.

(c)Findings and decision to advisory panel and general public.The SEA, after deleting any personally identifiable information, must—

(1) Transmit the findings and decisions referred to in paragraph (b)(2)(vi) of this section to the State advisory panel established under § 300.167; and

            (2) Make those findings and decisions available to the public.

(d)Finality of review decision.The decision made by the reviewing official is final unless a party brings a civil action under § 300.516.

A hearing officer’s decision is final, but you can appeal that decision in state public agency, and that appeal be conducted under an impartial review, which again looks at the case for any significant details that may alter the ruling. This review decision is again final, but can be appealed in federal court.

§ 300.515 Timelines and convenience of hearings and reviews.

(a) The public agency must ensure that not later than 45 days after the expiration of the 30 day period under § 300.510(b), or the adjusted time periods described in § 300.510(c)—

            (1) A final decision is reached in the hearing; and

            (2) A copy of the decision is mailed to each of the parties.

(b) The SEA must ensure that not later than 30 days after the receipt of a request for a review—

            (1) A final decision is reached in the review; and

            (2) 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 (a) and (b) of this section 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.

The hearing officer has 45 days after the 30-day period (or the adjusted period, in the case of an extension) for the hearing to make their decision, after which a copy of that decision is mailed to both parties. If you ask for a review, then the SEA has 30 days to conduct that review and give their final decision, though extensions can be granted under certain circumstances.

§ 300.516 Civil action.

(a)General.Any party aggrieved by the findings and decision made under §§ 300.507 through 300.513 or §§ 300.530 through 300.534 who does not have the right to an appeal under § 300.514(b), and any party aggrieved by the findings and decision under § 300.514(b), has the right to bring a civil action with respect to the due process complaint notice requesting a due process hearing under § 300.507 or §§ 300.530 through 300.532. The action may be brought in any State court of competent jurisdiction or in a district court of the United States without regard to the amount in controversy.

(b)Time limitation.The party bringing the action shall have 90 days from the date of the decision of the hearing officer or, if applicable, the decision of the State review official, to file a civil action, or, if the State has an explicit time limitation for bringing civil actions under Part B of the Act, in the time allowed by that State law.

If you disagree with the decision made by the court but cannot appeal, you can file a civil action suit in a State or district (i.e. federal) court. You have 90 days from the decision of the initial or review decision to file your appeal.

§ 300.517 Attorneys’ fees.

(a)In general.(1) In any action or proceeding brought under section 615 of the Act, the court, in its discretion, may award reasonable attorneys’ fees as part of the costs to—

                        (i) The prevailing party who is the parent of a child with a disability;

(ii) To a prevailing party who is an SEA or LEA against the attorney of a parent who files a complaint or subsequent cause of action that is frivolous, unreasonable, or without foundation, or against the attorney of a parent who continued to litigate after the litigation clearly became frivolous, unreasonable, or without foundation; or

(iii) To a prevailing SEA or LEA against the attorney of a parent, or against the parent, if the parent’s request for a due process hearing or subsequent cause of action was presented for any improper purpose, such as to harass, to cause unnecessary delay, or to needlessly increase the cost of litigation.

(2) Nothing in this subsection shall be construed to affect section 327 of the District of Columbia Appropriations Act, 2005.

You may be entitled to attorneys’ fees (payment for the use of attorneys) if you are the prevailing party. This process can be fairly complicated, so be sure to ask your attorney for more information on this topic.

§ 300.518 Child’s status during proceedings.

(a) Except as provided in § 300.533, during the pendency of any administrative or judicial proceeding regarding a due process complaint notice requesting a due process hearing under § 300.507, unless the State or local agency and the parents of the child agree otherwise, the child involved in the complaint must remain in his or her current educational placement.

(b) If the complaint involves an application for initial admission to public school, the child, with the consent of the parents, must be placed in the public school until the completion of all the proceedings.

(c) If the complaint involves an application for initial services under this part from a child who is transitioning from Part C of the Act to Part B and is no longer eligible for Part C services because the child has turned three, the public agency is not required to provide the Part C services that the child had been receiving. If the child is found eligible for special education and related services under Part B and the parent consents to the initial provision of special education and related services under § 300.300(b), then the public agency must provide those special education and related services that are not in dispute between the parent and the public agency.

(d) If the hearing officer in a due process hearing conducted by the SEA or a State review official in an administrative appeal agrees with the child’s parents that a change of placement is appropriate, that placement must be treated as an agreement between the State and the parents for purposes of paragraph (a) of this section.

What happens to your child during these kinds of proceedings? Generally, they should be in their regular educational placement, unless both parties agree otherwise, or there’s a safety issue in the current placement. Otherwise, they should be given the same tools and services they would had the hearings not happened.