Dealing with special education in New York City can be tough for parents of kids with disabilities. A NYC special education lawyer with due process hearing experience helps secure the support your child needs. This guide will explain what due process hearings are, the rights parents and students have, and how the process works.
Legal Framework Made Simple
In the U.S., special education is mainly governed by two laws: The Individuals with Disabilities Education Act (IDEA) and Section 504 of the Rehabilitation Act.
These laws protect students with disabilities and ensure they get the services they need.
IDEA requires schools to provide a Free Appropriate Public Education (FAPE) for eligible children.
Section 504 prevents discrimination and guarantees equal access to education for individuals with disabilities.
When parents and schools disagree about services, impartial due process hearings help resolve the issues.
In NYC, the Department of Education handles these hearings for school districts.
What is an Impartial Due Process Hearing?
An impartial due process hearing is like a less formal trial. It involves a neutral person called an Impartial Hearing Officer (IHO), who is a trained lawyer certified to adjudicate these cases. The IHO’s job is to listen to both sides, review evidence, and make a decision about the disagreement. The term “impartial” means that the IHO does not have a stake in the outcome and will decide based solely on the evidence presented.
The Right to Free Appropriate Public Education (FAPE)
FAPE means that every eligible child with a disability has the right to get an education that fits their individual needs. This right is not just about being educated; it also means schools must provide services that help the student make real progress.
Types of Disputes
Disagreements about special education can usually be sorted into two categories: substantive disputes and procedural disputes.
- Substantive Disputes: These disagreements are about what services the student should receive. For example, if a parent feels that their child’s Individualized Education Program (IEP) doesn’t cover their needs in reading, this would be a substantive dispute. A real-life scenario might be when a child with autism requires specific speech therapy that the school fails to provide.
- Procedural Disputes: These involve issues about whether the school followed the required rules regarding evaluations or developing the IEP. For instance, if a meeting to create an IEP happens without the parent being involved, or if evaluations are not done on time, these are procedural disputes. Imagine a situation where a parent is not notified about an IEP meeting, which affects their ability to contribute; that would be a procedural dispute.
The Right to Legal Representation at Due Process Hearings
Parents have the right to get help from a special education lawyer during the due process hearing. They can also bring a lawyer to meetings and court appearances to assist them. If a parent hires a lawyer and wins the due process hearing, they might be able to get their lawyer’s fees reimbursed by the school district. Having legal representation can greatly impact the outcome, as an attorney can skillfully present the case, effectively manage the complexities of special education law, and rebut the Department of Education’s arguments.
Requesting a Due Process Hearing
The process starts when a parent or school district files a Due Process Complaint (DPC), explaining the issue and proposed solution.
After filing, both sides enter a 30-day Resolution Period to try to settle the dispute.
The district must schedule a Resolution Meeting within 15 days of receiving the DPC.
Because of NYC’s case volume, this meeting is rarely held. If scheduled, parents should attend to avoid delays or dismissal.
The meeting gives both sides a chance to resolve the issue without a hearing.
If no agreement is reached in 30 days, the IHO will hold a hearing and decide the case.
Disclosure Packets
At least 5 business days before the due process hearing, each side must send documents to the other side and the IHO. This is called “disclosure.” Disclosure can include evaluations, test results, letters, and other evidence for the hearing. Each side must also share witness names and summarize each witness’ testimony. This process ensures fairness and adequate preparation for the impartial due process hearing.
In NYC, disclosures are typically submitted by email as one PDF where all exhibits are pre-marked and organized in a table of contents.
The Impartial Due Process Hearing Process
This section is thorough. Here are some key points about parents’ rights during the hearing:
- Location: Most due process hearings in NYC now happen online by video or phone, usually through WebEx or a similar app.
- Your Rights: During the hearing, parents have several important rights, including the ability to:
- Represent themselves or have an attorney help them.
- Present evidence and call witnesses to speak on their behalf.
- Cross-examine school district witnesses.
- Keep the hearing confidential from the public.
Burden of Proof at Due Process Hearings:
In New York, the school district must prove its case during a due process hearing. They must show they provided all required services. If parents place a child in private school, they must prove it meets the child’s needs. This applies when seeking tuition reimbursement from the school district.
Introduction of Evidence:
Both sides can present evidence in support of their case during the hearing. This may include documents such as evaluations, test scores, report cards, emails, and progress reports. Typically the district presents their case first since they have burden of proving they provided the child with a free and appropriate public education (FAPE) for the school year(s) at issue.
Opening Statements:
At the start of the hearing, both sides give opening statements. They summarize allegations and outline the evidence they will present. The district may explain how it offered the child a FAPE. Parents may highlight how the district failed to provide a FAPE and describe the services or placements needed.
Witness Testimony:
After opening statements, both sides may call witnesses to testify. The IHO swears in each witness before they speak.
Testimony helps prove key facts. Parents may call teachers, therapists, or evaluators who understand the child’s needs and appropriate supports.
Both parties can question witnesses, allowing for cross-examination to challenge or clarify their statements.
Parents may also testify, either with help from their attorney or on their own.
The IHO may ask questions to gather more details or clarify information.
Many IHOs accept affidavit testimony to speed up the process. Your attorney should confirm the IHO’s specific rules.
Closing Arguments:
After both sides present their cases at the due process hearing, they give closing statements to summarize evidence and argue their position.
Closing arguments can be provided orally on the record or written, depending on the assigned IHO’s rules.
Decision-Making Process:
After the hearing, you’ll receive a transcript and the IHO’s written decision, called a Finding of Fact and Decision (FOFD). The FOFD explains what the IHO decided and what the district must do if it failed to provide a FAPE.
Implementing the Decision:
If the IHO rules for the parent, the DOE’s Implementation Unit will help ensure the district provides the ordered services.
Take the Next Step Toward Support
If you need help, reach out to our firm. Founded by a former NYC Special Education Impartial Hearing Officer, we have the experience to advocate for your child’s rights. We work to ensure students with disabilities in NYC receive the educational opportunities they deserve. We assist with IEP meetings, IEP & IESP implementation, and tuition reimbursement.
Call The R.M.L. Law Firm, PLLC today at (516) 765-5566 or contact us online to schedule a free consultation and take the first step toward securing the support your child needs.
