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. In this guide, I’ll explain what these hearings are, what rights parents and students have, and how the process works.
Legal Framework
In the United States, special education laws are mainly controlled by two main laws: the Individuals with Disabilities Education Act (IDEA) and Section 504 of the Rehabilitation Act of 1974. These laws protect the rights of students with disabilities and ensure they receive the educational services they need.
IDEA requires that eligible children with disabilities are provided with a Free Appropriate Public Education (FAPE). This means that schools must provide the necessary services to help these students succeed. Section 504 makes sure that individuals with disabilities are not discriminated against, allowing them to have equal access to education.
When disagreements happen between parents and schools about the services a special needs child should receive, impartial due process hearings are held to help solve the issues. In New York City, the Department of Education (DOE) handles these matters on behalf of 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
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 begins when either a parent or the school district files a Due Process Complaint (DPC). Typically, this document explains the issue and how the district should fix it.
After filing the DPC, both parties have 30 days to resolve the issue on their own during what is called the Resolution Period. The district usually holds a meeting to discuss the issues, but if this meeting doesn’t happen, it’s important for parents to follow up. The district must hold a Resolution Meeting within 15 days of receiving the DPC. Because of the high volume of cases in NYC, however, this meeting is rarely held. If it is, it’s important for parents to attend it, as not attending could delay the process or even result in the case being dismissed. The meeting allows both sides to discuss the issues and try to reach an agreement.
If the problem isn’t solved by the end of the 30-day Resolution Period, the IHO will hold a due process hearing to review the evidence and make a decision.
Disclosure Packets
At least 5 business days before the 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.
The Impartial Due Process Hearing Process
This section is thorough. Here are some key points about parents’ rights during the hearing:
- Location: Most hearings in New York City are now held online through video calls or phone calls, making it easier for everyone, including witnesses, to participate.
- 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 witnesses from the school district.
- Keep the hearing confidential from the public.
Burden of Proof at the Due Process Hearing:
In New York, the school district is responsible for proving their case during the due process hearing. This means they need to show that they have provided the necessary services. However, if parents unilaterally place their child in a private school and want the school district to pay for the tuition, they have the burden of proving that the private school is a good fit for their child.
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.
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 the opening statements, both sides can call witnesses to testify. All witnesses must be sworn in by the IHO. The testimony is key to proving the facts of the case. Parents can call people to speak, such as teachers, principals, therapists, or evaluators who know the child’s educational needs and how it can be appropriately addressed.
Witnesses can be questioned by both parties. This allows for cross-examination, where one side can challenge what the other side’s witnesses say.
If a parent decides to testify, they can do so with help from their attorney, or they can present their story on their own. The IHO can also ask questions to clarify statements or gather more information.
Closing Arguments:
Once the due process hearing is finished, both sides will give closing statements. This is the time to restate their requests, summarize the evidence, and make legal arguments supporting their case.
Decision-Making Process:
After the due process hearing, the IHO will write a Finding of Fact and Decision (FOFD). This document explains the IHO’s findings in the case and what actions the district must take to fix the situation if they did not provide a FAPE.
Implementing the Decision:
If the IHO decides in favor of the parent and orders the district to provide specific services, the DOE’s Impartial Hearing Order Implementation Unit will work with the parent to ensure the order is followed.
Take the Next Step Toward Support
Understanding special education due process hearings helps parents navigate laws, the process, and their rights to support children with special needs.
If you need help, reach out to our firm. Founded by a former Special Education Impartial Hearing Officer, we have the experience to advocate for your child’s rights. We are committed to ensuring 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.
