Due Process Hearing: Do File Or Not the File, That Is The Question

I have written about this subject in the past, but I think it is worth repeating again because I continue to receive calls from parents have filed for due process and are strongly considering it. For example, I recently received a call from a parent that had filed a request for a due process hearing without an attorney.  The parent called  me one day before the pre-hearing conference and less than 10 days before the scheduled hearing. The parent was lost.  I tried to explain the legal procedures involving a pre-trial conference and the exchange of documents at least five business days before  the scheduled hearing.  After speaking with the parent, I explained that I would accept a case that was scheduled for a hearing with such a short notice.  It usually me at least 50 hours to prepare for a due process hearing and in some cases that are more complex it probably takes 100 or more hours. These are very complicated cases and require a great deal of preparation to even have a chance to prevail.  If you are a parent that pursues a due process hearing without an attorney the chances of prevailing are slim to none.  In fact, many cases are summarily determined to be without merit without a hearing. The case is dismissed and the parent’s only recourse is an appeal to federal district court which is very unlikely to occur without counsel.  You can checked the Georgia Department of Education website under due process hearings to read all the published decisions. You will find that parents do not prevail in these hearings without counsel.  I think there is a larger problem that the administrative law judges the majority of the time do not rule in favor of parents even those with counsel.  This is a national trend as well.  There is an inherent bias for some reason against parents that seek relief under the IDEA. I am sure there are reasons we can agree upon why parents lose the majority of the time and some reasons we do not agree. The fact is parents should not file for a due process hearing without at least first consulting with an attorney. The reason is simple. Lawyers that specialize in special education cases can give parents a realistic idea what to expect at a hearing and discuss the procedures of such hearings. In the end, parents have the option of filing for due process without an attorney.  The question is do you really want to do this?

If a parent loses the case after the hearing, or it is summarily decided adversely  by the judge before the hearing, then the case may be what is called res judicata. This is a fancy legal term that generally means you cannot litigate the same issues with the same parties again. You can appeal the decision but if you lose, the case is ended and you cannot re-file again on the same issues and with the same parties. For example, if you claim that the school system denied your child as free appropriate public education for the past two years, and you lose this hearing, then you cannot re-file for hearing again – assuming no appeal to federal district court –  on the same issues. You lose your right forever to seek relief for these two years. There may be an exception or two this rule, but you have to weigh the possibility you will not be able to seek recovery again on the same facts, issues and law. So why wouldn’t you seek the advise of an attorney first before filing for the hearing?

Another problem is that many parents are unaware of what due process hearing actually is.  At the end of the IEP meeting, a member of the IEP team informs the parents that they have the right to file for due process in event they disagree with the identification, evaluation, educational placement or provision of a free appropriate public education for the child. The parents complete the form for a hearing and then find out it not a meeting but rather a full-blown trial that they must prepare for. Most are totally unprepared to fight the school system with its legal counsel and the complexities of a hearing.  Many parents call me and want to retain an attorney just before the hearing.  I will not do this because it takes so much time, resources and money to adequately litigate a due process hearing. If you want to do it right and have a chance of prevailing then you have to give a lawyer weeks if not months of advance notice that you want to file for due process. Also, the legal procedures for filing a compliant for due process are such that you must file a legally sufficient complaint that meets the requirements of the law. Some parents do not file a legally sufficiently complaint and the judge then dismisses it upon motion by the school system’s lawyer. Sound familiar?  There are also parents that think a lawyer can just to court without reviewing the child’s educational records, hiring an expert, and without adequately preparing for a hearing.  I inform any parent that wants to file for due process that it will require a review of the educational records, the retention of an expert witness (you cannot win a special education hearing without an expert except in rare cases), and the payment of a retainer.

For the reasons stated in this post, I strongly urge any parent to consult with a lawyer BEFORE you request a due process hearing. It will be well worth the telephone conversation with the attorney who specializes in special education practice to do this.