Filing a Due Process Complaint
by
Jamie Newlin Kirschner 
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Complaint
Parents who have children with special needs have options when they disagree or are in dispute with a decision of a local school district regarding the services their child may/may not be receiving.
Guardians/Parent(s) Can:
1.File a state complaint at the Department of Education website for their state.
2.File an office of civil rights complaint, https://www.hhs.gov/civil-rights/filing-a-complaint/complaint-process/index.html
3.File a due process complaint by following the process outlined at the Department of Education website for their state.
A due process complaint is a complaint filed by a guardian on matters of disagreement related to the identification, evaluation, or educational placement of a child, or the provision of a free appropriate public education (FAPE) to the child https://sites.ed.gov/idea/regs/b/e/300.508 in regard to an inappropriately written Individual Education Plan (IEP). This process was designed by The Individuals With Disabilities Education Act (IDEA) to mirror the legal justice system and level the playing field for parents against districts.
Many parents/guardians are misled by “uninformed Facebook advice and rumors” and do not have any idea how it really works. In the experiences I have gleamed being a school principal, special education teacher, and nationally certified professional advocate for more than 24 years, a DUE PROCESS COMPLAINT, is the easiest, most effective and expedited process in place during our current educational climate.
When a due process complaint is filed, (each state has their own procedures) it is intended to be an impartial procedure modeled after a civil court hearing where both parties have the opportunity to have an attorney represent them, a qualified representative (in some states) or represent themselves (an advocate may accompany) as they state their case before an Impartial Hearing Officer (IHO) or an Administrative Law Judge. Filing a complaint does NOT automatically equal a hearing and does NOT equal the need to hire an attorney.
Most parents fear a hearing, however; in 98% of the cases that I have been involved with as well as documented cases from non-attorney advocate Mr. Jamison Jessup www.mychildwins.com, these complaints are resolved and the case is dismissed without hearing.
Filing a Due Process Complaint In Many Cases Means:
1) Complaint is filed with the Department of Education.
2) A Resolution Meeting is held: The district must schedule this within 15 days. Many outcomes can occur from this meeting:
- Both parties agree to place the case in abeyance (on hold while evaluations occur) OR
- District and parent/guardian(s) come and meet again after evaluations are complete to write the appropriate IEP and/or provide compensatory education for services not delivered during the (up to) 24 months of time prior to the filing OR
- District agrees to the parent/guardian(s) request, parent/guardian dismiss the case with/ without prejudice OR
- District disagrees and requests to proceed to hearing (parents can dismiss) OR
- District provides a written settlement agreement to include a “resolution” the parents can either agree to and dismiss the case or decide they want to proceed to a hearing.
Helpful Articles
- When Parents Disagree
- Is My Child Receiving FAPE?
- Co-Parenting with Positive Behavior Support
- How can parents prepare for an IEP Meeting? (Part 1)
- Taking Control of Your Family’s Finances Following a Divorce
- Parents Working Together How Parents Can Work Together to Help Their Child With Their Education
- Parenting with PBS: Resolving Children’s Behavior Problems More Effectively and Efficiently
- A Complete Guide on Positive Behavior Support for Children With Special Needs
- Family Chat Replay: Improving Family Lives with Positive Behavior Support
- Reinforcement: Improving Behavior One Interaction at a Time
- Avoiding the Power Struggles with Your Child
- Date Nights At-Home with the One You Love
- The Vows of Special Needs Parents
This post originally appeared on our March/April 2023 Magazine
