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By Jan Baumel, M.S.
If you feel you're at an impasse with the school district, you may think about your right to due process. Usually it's wise to consult with a trained advocate or attorney knowledgeable about special education law to help you evaluate the case before filing for due process.
Are there any other steps you could take first? Is your case based on facts or on feelings and frustrations? What are you trying to achieve for your child? Are these goals realistic? Do you want to commit the time, energy, and expense to go forward?
To make these decisions, a thorough review of all of your child's records is important. You may already have copies of this information, but if not, you can ask the school district to review and/or provide copies of your child's educational records. However, if the school makes copies for you, there may be a charge.
If you decide to proceed with mediation and/or an administrative hearing, be prepared for a somewhat demanding process. After a lengthy procedure of reaching a settlement with the school district, one dad commented that he'd rather have a root canal than participate in due process again!
Most states have some form of mediation, generally viewed as a win-win strategy, available. After you and the district have each presented your side, a trained mediator will help you reach agreement — generally some sort of compromise. By prioritizing objectives ahead of time, you'll be able to focus on what's really important for your child. Each side may have to give a little, but you'll both have control over the final decision because it has to be mutually agreed upon by you and the district.
An administrative or "fair" hearing resembles a court proceeding. One at a time, you and the school district will be asked to present your side of the case to an Independent Hearing Officer (IHO), often an attorney trained in special education law. There are specific rules to follow regarding inclusion of written documents, testimony and cross-examination of witnesses, and other procedures. Because the final decision is made by the IHO on points of law, not emotion, it's usually best for you to be represented by an attorney.
The process can last much longer than the 45-day timeline — often 90 to 200 days — because of delays related to getting additional assessments and finding mutually convenient times for lawyers. The cost can run into the thousands of dollars per day for attorney fees and experts. If the IHO rules in your favor, you may recover some or all of the fees you've paid. However, if the IHO rules in favor of the district, you are responsible to pay your own costs. And remember, in either decision, the school district pays for its attorney and experts and that money comes from the general fund - monies which are used to provide for all children in the school district.
The result of many cases is that parents prevail on some issues and the school district on others, so that neither wins the case on all points presented. The decision can leave both parties dissatisfied with the outcome. So before deciding to go to a hearing, you may want to try one more time to communicate your concerns about your child's special education program with school district personnel.
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