How to Prepare for a Special Education Due Process Hearing

For the past month, I  prepared for a special education due process hearing.  The preparation time consumed almost every day for an entire month.   By the time I was ready to move forward for the due process hearing, I had six large binders of  documents consisting of thousands of pages of:  educational records, medical and psychiatric records, pictures, emails, transcripts, CD’s of IEP meetings, notes and progress reports, evaluations by occupational therapists, speech and language therapists, evaluations by Board Certified Behavior Analysts (BCBAs), and many other papers.  I also spent considerable time  developing my own binders of documents containing legal research, scientific-based research and articles on a variety of special educational issues, and trial and evidence notebooks.  In addition, I prepared a list of witnesses and documents that are required by the five-day rule. 34 C.F.R. 512(a)(3). The witness list contained twenty or more witnesses listed for the parents. For each witness, I had to summarize the testimony and substance of each witness. For each regular and expert witness that I  expected to appear and testify at the due process hearing, I had to prepare a subpoena and payment for each witness and mileage fees.  I had to interview each expert that I wanted to appear and testify for the parents. Further, the judge assigned to the case required the lawyers for the parents and school system to file a motion listing each expert witness each side planned to testify at the hearing and a copy of the expert’s curriculum vitae (CV) or resume. Moreover, I filed a notice to produce documents to the school system and  other written motions with the court.  Even before the due process hearing was scheduled to begin, I had amassed more than 200 hours of my time in preparation for the due process.  Although this special education due process hearing was unusual in terms of its complexity and the length of time for preparation for the hearing, the requirements for preparation that I outlined are the same for every due process hearing.  I would add that even before I filed a complaint for a due process hearing for the parents, there was considerable preparation including, but not limited to, review of educational records, retaining expert witnesses, interviewing the parents, legal and special education  research.

It is very important to understand how demanding the preparation is for a special education due process hearing.  The judge in this case set aside five days for the due process hearing.  But it is not unusual for due process hearings to last several weeks.  In these type of hearings, most judges will set aside a week here and a week there for the hearing until both sides have completed their sides of the case.  After the due process hearing, the lawyers for the parents and school system are required to read the transcript of the due process hearing, which may be thousands of pages long.  The lawyers are also required to write what are called proposed findings of  fact and conclusions of law. This may be lengthy document setting forth all of the material facts that are favorable to the parents, for example, and legal arguments why the judge should rule in favor of the parents.  After the judge reviews the proposed findings of fact and conclusion of law submitted by the parties’ attorneys, the judge issues a decision. If the decision is adverse to the parents, they face a lengthy and sometimes complicated appeal to federal district court.

From time to time, I will receive a phone call from a parent who has already filed for a due process  hearing without an attorney.  The parent may be at the beginning of the due process hearing process, which is usually the  scheduling the resolution session with the school system.  See 34 C.F.R. 300.510(a).   At other times, I am contacted by the parent just before the due process hearing is scheduled and the parent is required to comply with the five-day rule. 34 C.F.R. 512(a)(3).  Each time I receive a phone call from a parent that has filed a complaint for a due process hearing, I will usually say the same thing.  I will advise the parent to voluntarily dismiss the request for a due process hearing so that I can review the case and determine whether there is sufficient merit to actually convene a due process hearing.   I recommend this action because of the considerable time and resources that are necessary to properly prepare for a due process hearing.

Of course, there are times the school system will try to negotiate a settlement of the request for a due process hearing with the parent in a resolution session or in mediation.  In my case, the parties and attorneys decided to continue the scheduled due process hearing so that mediation could take place.  For many special education cases, mediation is often the best alternative to a due process hearing.  Mediation is voluntary under the law. 34 C.F.R. 300.506.  Mediation can be requested by either or both parties. A mediator is selected by the Georgia Department of Education Division of Exceptional Children to meet with the parties.  The parties, however, can select a private mediator at their own expense.  In my experience, the Justice Center of Atlanta has trained and experienced special education mediators who provide mediation services to the parties.  School system attorneys may advise school systems to pay for the cost of private mediation when there are high monetary or other important issues at stake.

I would advise parents who want to request a due process hearing to consult with an experienced special education attorney first before  you decide to file a complaint for due process.  It is likely to save you much time and expense by consulting with a special education attorney about the merits of your case. As you can see, there is considerable preparation before you file for a due process hearing and afterwards.  The point is if you spent adequate time and resources in preparing for the due process hearing it is more likely you will either be able to settle your case or at least have a better chance of prevailing. There are many articles published by advocates and attorneys on how to prepare and file for a due process hearing. See e.g.;;;    I would recommend that parents read these articles and others to help you understand due process procedures better and properly prepare before you file for due process and afterwards.