DUE PROCESS TIMELINE
Summary of Due Process Complaint Requirements and Timeline
NOTE: The following is merely a summary of the due process complaint requirements and timelines. It is important to review the IDEA’s Due Process Procedures for Parents and Children found at 34 C.F.R. §§ 300.500 – 300.537, and the ECEA Rule’s Special Education Procedural Safeguards found at 1 C.C.R. 301-8, Rules 2220-R-6.00 et seq.
Filing a Due Process Complaint (Notice)
- Either a parent(s) or the local school division (LEA) may file a due process complaint (Complaint) requesting a due process hearing when a disagreement arises regarding the identification of a child with a disability, evaluation of a child with a disability (including disagreements regarding payment for an independent educational evaluation), educational placement and services of the child, and the provision of a free appropriate public education.
- The Complaint must be filed within 2 years of the date the parent or LEA knew or should have known about the alleged action that forms the basis of the request. Exceptions to the timeline apply if the parent was prevented from requesting the hearing due to:
(1) specific misrepresentations by the LEA that it had resolved the problem forming the basis of the Complaint; or
(2) the LEA’s withholding of information from the parent that was required, under the federal and state requirements governing special education, to be provided to the parent.
- The Colorado Department of Education (CDE) is responsible for developing and maintaining a model due process complaint form. Copies are available from CDE’s website at: http://www.cde.state.co.us/spedlaw/download/DueProcessRequestForm.pdf
- The Complaint must be sent to the director of special education of the LEA, with a copy sent to CDE. If the LEA is requesting the due process hearing, the LEA provides the Complaint to the parent(s) with a copy to CDE.
There are 45 calendar days after the expiration or waiver of the resolution period, described below, for the impartial hearing officer (IHO) to issue a decision from the date the LEA receives or initiates a due process complaint.
Content of Due Process Complaint
The Complaint must include:
(1) the name of the child, address of the residence of the child, and name of the school the child is attending;
(2) a description of the child’s issue(s) relating to the proposed or refused initiation or change including facts relating to the issue(s); i.e., what are the issues, what is wrong; what happened that caused the problem; and
(3) a proposed resolution of the issue(s) to the extent known and available to the parent at the time of the Complaint.
(4) In the case of a homeless child or youth, available contact information is needed for the child, including the name of the school the child is attending.
Response to the Due Process Complaint
- Within 10 calendar days of receiving the Complaint requesting a due process hearing, the non-requesting party must send the requesting party a response that specifically addresses the issues raised in the Complaint. The LEA is not required to provide such a response if the LEA already provided the parent with written prior notice.
- If the LEA has not sent written prior notice to the parent regarding the issues raised by the parent, the LEA must, within 10 calendar days of receiving the Complaint, send the parent written prior notice that must include:
(1) an explanation of why the LEA proposed or refused to take the action raised in the Complaint;
(2) a description of other options that the IEP team considered and the reasons why those options were rejected;
(3) a description of each evaluation procedure, assessment, record, or report the LEA used as the basis for the proposed or refused action; and
(4) a description of the factors that are relevant to the LEA’s proposal or refusal.
- Providing the parent with such written prior notice shall not be construed to preclude the LEA from asserting that the parent’s Complaint was insufficient where appropriate, as noted below (Challenging the Sufficiency of the Complaint).
Appointment of Hearing Officer
- Within ten (10) calendar days or the first business day after the tenth day, the IHO shall be designated according to the following procedures:
(1) Upon receipt of the Complaint, the LEA shall telephone CDE with a request for available IHOs and confirm the request in writing accompanied by a copy of the Complaint.
(2) CDE shall provide by telephone to each party within four (4) calendar days the names of three available IHOs and will confirm the names in writing accompanied by biographical information about the IHOs.
(3) The parent must notify the LEA of the name of the individual that the parent eliminates from the list of three. This notification must be completed in sufficient time to allow the LEA two days out of the total ten days to strike another one of the remaining two names and to select the IHO.
(4) The LEA must notify the parent and CDE as to whom was selected. CDE will notify the IHO of his/her selection.
Challenging the Sufficiency of the Complaint
- A party may not have a due process hearing until the party, or the attorney representing the party, files a Complaint that meets the content information required for a due process complaint.
- The Complaint is deemed sufficient unless the party receiving the Complaint notifies the IHO in writing within 15 calendar days of receiving the Complaint that the Complaint does not meet the content requirements.
- Within 5 calendar days of receiving the notification regarding the insufficiency of the Complaint, the IHO determines on the face of the request whether it meets the content requirements. The IHO notifies the parties in writing of his/her determination.
- If the IHO determines that the Complaint is insufficient:
(1) The party amends the Complaint IF the other party consents and has the opportunity to resolve issues through the Resolution Session process, OR
(2) The IHO permits the party to amend the Complaint (not later than 5 calendar days before the hearing occurs).
The 45 day timeline begins again at the time the party files the amended Complaint, including the timeline for the resolution session process.
Resolution Session
- Within 15 calendar days of receiving the parents’ Complaint and prior to the initiation of a due process hearing, 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 Complaint.
The meeting need not be held if the parents and the LEA agree in writing to waive the Resolution Session, or they agree to use the mediation process.
If the LEA has not resolved the disagreement to the satisfaction of the parent within 30 days of receiving of the Complaint, the due process hearing may occur. The 45-day timeline for issuing a final decision begins at the end of the 30-day resolution period.
- The team shall include a representative of the LEA who has decision-making authority on behalf of the LEA.
- The team shall not include an attorney of the LEA unless an attorney accompanies the parent.
- During the Resolution Session, the parents of the child discuss their issues in the Complaint, and the LEA is provided the opportunity to resolve the issues.
- If resolution is reached, the LEA and the parent must execute a legally binding agreement that is:
(1) signed by both the parent and a representative of the LEA who has the authority to bind the LEA; and
(2) enforceable in any Colorado court of competent jurisdiction or in a district court of the United States.
- Either party has 3 business days to void the agreement.
If the LEA is unable to obtain the participation of the parent in the resolution meeting after reasonable efforts, at the conclusion of the 30-day period, the LEA may request that the hearing officer dismiss the parent’s due process complaint case.
If the LEA fails to hold the resolution meeting within 15 days of receiving the parent’s Complaint or fails to participate in the resolution meeting, the parent may seek the intervention of the hearing officer to begin the due process 45-day timeline.
Adjustments to the 30-day Resolution Period
- When the parties agree to waive the resolution meeting in writing, the 45-day timeline starts the next day.
- Both parties may agree in writing to continue mediation at the end of the 30-day period. However, if the parent or LEA withdraw from the mediation process, the 45-day timeline begins the next day.
- After either the mediation meeting or resolution meeting starts but before the end of the 30-day period, the parties agree in writing that no agreement is possible then the 45-day timeline starts the next day.
State Level Review (Tier 2)
- Any aggrieved party may obtain state level review of the IHO’s decision.
- An appeal of the IHO’s decision must be filed with the Office of Administrative Courts within 30 days after receipt of the IHO’s decision, with a copy sent to CDE and to all other parties in the due process proceeding. The appeal must include:
(1) A notice of appeal which shall contain:
a. The caption of the case, including case number and names of all parties;
b. The party or parties initiating the appeal;
c. A brief description of the nature of the case and the order being appealed;
d. A list of the issues to be raised on appeal;
e. A copy of the findings of fact and decision of the IHO being appealed; and
f. A certificate of service showing the date the copy of the notice was sent to CDE and all other parties.
(2) A designation of all or a portion of the tape recorded transcript of the record.
- Any other party may file a cross appeal within five (5) days after receipt of a notice of appeal. The notice of cross appeal must contain those items listed in (a) through (d) above.
- Unless otherwise ordered by the administrative law judge (ALJ), briefs shall be filed and oral argument held within twenty (20) days after the filing of the notice of appeal.
- The ALJ must make a final and independent decision and mail such to all parties within thirty (30) days after the notice of appeal is received.
Civil Action
- Any party aggrieved by the ALJ’s decision has the right to bring a civil action with regard to the due process complaint in any State court of competent jurisdiction or in a district court of the United States without regard to the amount in controversy.
- The civil action must be filed within ninety (90) days from the date of the ALJ’s decision.
PROVISIONS UNIQUE TO EXPEDITED DUE PROCESS HEARINGS AND EXTENSION OF TIMELINES
- Either parent or LEA may request an expedited due process hearing related to matters involving discipline of a student with a disability. Examples may include: the decision of the Manifestation Determination Review; the placement of the student as a result of disciplinary action.
- There is no sufficiency challenge applicable to expedited hearings. (This only applies to general due process hearings initiated under 34 C.F.R. §300.508 and not expedited hearings under 34 C.F.R. §300.532.)
- Unless the parents and the LEA agree in writing to waive the resolution meeting, a resolution meeting must occur within seven days of receiving the Complaint.
- The resolution period for expedited cases is 15 days.
- The expedited due process hearing must occur within twenty (20) school days after the date the Complaint is filed. The IHO must issue his/her decision within ten (10) school days after the hearing.
- CDE appoints the IHO from the registry of hearing officers on a rotating basis depending on availability.
EXTENSIONS OF TIMELINES
- A hearing officer may grant specific extensions of the timeline beyond the 45 calendar day period at the request of either party only when it serves the best interest of the child. The hearing officer must document this in writing to the parties and CDE including establishing a new date for issuing the decision.
- For expedited hearings, the timeline may not be extended without exception.