Due Process Hearings

Starting the Process

Parents must decide where and how their child will be educated while they are contesting the school system's plan. If they have the means to do so, parents can place their child in an alternative program. If they later succeed in winning an order or agreement for that placement, parents can have the school system pay them back for the costs of that placement in addition to recovering attorney's fees and costs as the prevailing party. (Note that an important recent amendment to IDEA alters this right. It requires parents to declare their intent to place their child at an alternative school either at a TEAM meeting or in writing ten days before they make that placement. They must also state why they think the public school's program is inadequate and indicate their intent to seek funding from the public school. This new provision is poorly drafted and will likely be the subject of much litigation to clarify its scope and meaning.)

More often, however, either because parents prefer to have their child remain in the public school (even in a flawed program) or do not have the means to move their child to an alternative placement, the child must stay where s/he is while the parties try to resolve their dispute. While a student is entitled to "stay put" in his/her last agreed-upon placement pending the outcome of proceedings over the rejected IEP, in many cases it does not make sense to keep the student in that placement. If the school system's new IEP would provide significantly more or different services to the student, in most cases the parents should agree to try the new services pending the hearing. Parents may be at a disadvantage at a hearing if the student hasn't at least tried the new program; the school system will simply argue that the new program would have worked if only the student had tried it, and parents will be hard-pressed to prove otherwise unless their experts have observed the untried program and can clearly show that it would be completely inappropriate.