Procedures Before Due Process Hearing

Dispute Resolution Session: (new procedure under IDEA 2004)

• Purpose: Opportunity for parents to discuss their complaint and supporting facts, and school has an opportunity to resolve the complaint (20 USC 1415(f)(1)(B)(i)(IV))
• Must occur before the due process hearing unless the school and parent agree in writing to waive the meeting or to use mediation instead (20 USC 1415(f)(1)(B)(i))
• Meeting must occur within 15 days of the school's receipt of the due process notice and must include the parent(s), PET members with knowledge regarding the facts contained in the complaint and a school representative with decision-making authority (20 USC 1415(f)(1)(B))
• School may not have an attorney present if the parents do not have an attorney present (20 USC 1415(f)(1)(B)(i)(III))
• If an agreement is reached, it is legally binding and enforceable in state or federal court, but it may be voided within 3 business days of the agreement's execution (20 USC 1415(f)(1)(B)(iii) and (iv))
• May be waived if BOTH parties agree.

If the matter is not resolved within 30 days of the school's receipt of the parent's complaint, the due process hearing may occur and the timelines kick in. 20 USC 1415(f)(1)(B)(ii)

Get Dispute Resolution Request Form

Mediation: (20 USC 1415(e)(2))

• Can be requested on its own
• Will be offered to the parties when a complaint or due process hearing is filed
• Will only occur if both parties agree to participate (voluntary)
• It cannot be used to deny or delay a parent’s rights to a due process hearing
• The mediator must be "qualified and impartial"
• The cost is born by the State ((20 USC 1415(e)(2)(D))
• Mediation must be timely scheduled and held in a mutually convenient location (20 USC 1415(e)(2)(E))
• Any agreement reached is reduced to writing and is legally binding and enforceable in state or federal court (20 USC 1415(e)(2)(F))
• All discussions that occur in mediation are confidential (20 USC 1415(e)(2)(F)(ii))

Pre-Hearing Conference: (MSER 13.9)

• Clarification of the issues
• Exhibits provided by requesting party
• Length of time needed for hearing

Disclosure of Evaluations: (20 USC 1415(f)(2))

• 5 business days before hearing, each party must disclose to the other party all the evaluations that have been completed and the recommendations offered by those evaluations that will be used at hearing or else those evaluations may be prohibited from the hearing