Fax: (214) 937-3770
Catherine M. Michael, J.D.
Special Education Law
Hollingsworth & Zivitz, PC
For many parents filing a due process complaint is an intimidating prospect. My goal is to help you though each stage of this process with the end goal of your child’s needs in mind. The system is set up so that parents have a way to challenge ineffective or inadequate programming so that they do have options if the school has failed to provide an appropriate program. A defining feature of the due process hearing system is the impartiality of due process hearing officers. 34 CFR 300.511. Another defining feature is the fee-shifting provision which allows a parent to recoup their attorney’s fees if they are successful in a due process hearing. We will work with you to find affordable options and to ensure that your child’s needs are met.
A due process complaint is a request for a hearing that is filed with the State to challenge and resolve special education disputes. Due process complaints can concern your child’s identification or eligibility, evaluation (or lack thereof), placement, lack of IEP implementation, failure to provide FAPE, inappropriate programming, ESY services, related services, behavioral programming and services, and staff training, among many other issues.
1. Prior to beginning this process, we review your child’s educational records, relevant medical and psychological records and discuss your goals. I provide representation of children all over the State of Texas including Dallas, Fort Worth, Houston, Galveston, Amarillo, Lubbock, Temple, Belton, Austin, Corpus Christy, Brownsburg, and San Antonio. We will ask you to fax, scan, or mail your documents and will set up a conference call to go over the review of the materials and what options are available. We work with you to make a decision that will be a good fit for you based on your goals and the needs of your child. We also work with you to determine
2. Once we accept your case we work with you to create a due process complaint that is submitted to the state educational agency and to the school. This complaint includes the issues of contention and what the proposed resolution are, to the extent known to the parent when we file.
3. We submit this request to the state educational agency.
4. Your state's education agency assigns an independent hearing officer (IHO) to your case from a rotating list. The school will also contact their counsel. Once an IHO is assigned we will contact you with this information.
5. The IHO will contact the school and your attorney to set up a time for a prehearing conference. A prehearing conference is to handle the procedural requirements of the hearing process. A prehearing is not a hearing or a time to discuss your case or its merits. We set dates for the hearing, dates for disclosure and/or records exchange, requirements for exhibit books, and establish other procedural requirements.
6. The next stage is the resolution session and/or mediation. The resolution session is an opportunity for the school and the parent to meet without counsel to discuss and try and resolve the dispute early on in the case. We will often work with you ahead of time, depending on a variety of factors, to send a demand letter. In some cases, we will waive the resolution session for a mediation instead depending on the facts of your case. In other cases we will have both a resolution session and a mediation.
7. During the resolution period both parties work to prepare their case for hearing. During this time, we often go back and forth with proposals with the school’s attorney depending on the facts of your case. We will provide you a list of what we need you to do to keep your legal fees low and to help us prepare for the hearing.
8. If we are unable to resolve the case prior to the hearing, it will proceed to hearing. A hearing includes opening statements, questioning of witnesses, and verbal and/or written closing arguments and briefs. The average hearing ranging from 4 – 6 days in length depending on the complexity of the case. It can take up to 45 days for an IHO to enter a decision following your case.
9. Each party has a right to appeal the decision of the IHO. In Texas and Indiana, appeals can be taken directly to state or federal court. If someone is not happy with the results of that appeal, it can be taken to the Seventh Circuit Court of Appeals (for Indiana cases) or the Fifth Circuit Court of Appeals (for Texas cases).