Frequently Asked Questions (FAQs) About Special Education Due Process Hearings
These FAQs give information about special education due process
hearings, which are held to consider special education issues involving students.
They are not, and are not intended to be, legal advice. TEA does not give legal
help or legal advice. If you need legal help or advice, you should call a private
attorney. (The terms hearing and due process hearing are used interchangeably
throughout this FAQ.)
GENERAL
BEFORE THE DUE PROCESS HEARING
THE DUE PROCESS HEARING
AFTER THE DUE PROCESS HEARING
GENERAL
- What is a Special Education Due Process Hearing?
Back to Top
Basically, a due process hearing is held in the same way as a trial at the
courthouse. The parties present evidence to the Hearing Officer who acts as
both judge and jury. The due process hearing is independent of the Texas Education
Agency and the TEA may not influence the Hearing Officer’s decision
in any way.
- What is a Special Education Hearing Officer?
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A Special Education Due Process Hearing Officer (Hearing Officer) is in charge
of the hearing, just like a judge is in charge of a trial. The Hearing Officer
does not take the side of either party. The Hearing Officer is independent
of the Texas Education Agency. The Hearing Officer runs the hearing, listens
to the evidence and arguments of the parties, and writes a Final Decision
and Order. The Hearing Officer also may have meetings before the hearing,
give written orders, and generally control the hearing. See 19
TEX. ADMIN. CODE §89.1170. All Special
Education Due Process Hearing Officers are licensed Texas attorneys.
- Do I need an attorney to go to a due process hearing?
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No. If you are a party in a due process hearing involving your student’s
education, you do not have to have an attorney. You may represent yourself
and your student. You do not have the right to have an attorney appointed
for you. You may hire an attorney to represent you, but you must pay for the
attorney yourself. Hearing Officers do not have the authority to award attorney’s
fees to parents if they prevail at a hearing. But if parents do prevail, district
judges in state and federal court may award fees based upon the Hearing Officer’s
decision. The school district is usually represented by an attorney. If you
choose to represent yourself, you will need to know the law and rules that
apply to your case. The Hearing Officer cannot give you legal advice or help
you present your case. You will also be expected to follow TEA’s hearing
rules, which can be found at http://www.tea.state.tx.us/rules/tac/chapter089/ch089aa.html.
- What laws control the due process hearings? Back
to Top
- The Individuals with Disabilities
Education Improvement Act of 2004 (IDEA 2004), 20 United States Code
Section 1400 et seq.
- The federal regulations at 34 Code
of Federal Regulations Part 300.
- The procedures found in the Administrative Procedures Act, Texas Government
Code, Section 2001.001 et seq.
- The Commissioner’s and State Board of Education Rules for Special
Education Services found at 19 Texas Administrative Code, §89.1001-89.1191.
- The Texas Rules of Civil Procedure.
- The Texas Rules of Evidence, unless they are affected or changed by
the federal regulations found in 34 Code of Federal Regulations Section
300.307-300.514, 300.52, or 300.528 or the Commissioner’s rules
found in 19 Texas Administrative Code §89.1151-89.1191.
- How long does it take from the time that I request
a due process hearing until the Hearing Officer makes a final decision? Back
to Top
Usually, the Hearing Officer will contact you within 5 business days of the
date that you asked for a due process hearing. The Hearing Officer will notify
the parties of the pre-hearing conference and the hearing schedules soon after
the request for due process hearing is received by the Hearing Officer. There
is a 30 day resolution period before the 45 day timeline for issuing a final
decision begins. A resolution meeting for the parties may be held within fifteen
days from the receipt of the request for hearing. The parties have a total
of thirty days to seek a resolution of the dispute through the resolution
process, informal settlement discussion or mediation. The 45 day timeline
in your case may be extended if you and/or the district request an extension,
and the request is granted by the Hearing Officer. If you have questions about
the timeline in your case you should contact your Hearing Officer.
- May I settle my problem with the district without
going to a due process hearing? Back
to Top
Yes. There are ways to settle or resolve your case by agreement between the
parties. You may be able to resolve your case by talking with the school district.
Settlement talks will be between you and the school district. The Hearing
Officer will not be involved in any settlement discussions.
- What is Mediation?Back
to Top
TEA provides an opportunity for mediation in all special education due process
cases. Mediation is a different way of settling a disagreement. The parties
have the help of an unbiased, independent person who is knowledgeable about
special education, an attorney and a trained mediator. The mediator will help
the parties try to find a solution that is acceptable to both parties. In
a due process hearing, someone will win and someone will lose. In mediation,
the parties work together to try to find a solution that will satisfy both
parties. The parties decide whether or not the disagreement is settled. If
the parties try mediation but can’t reach an agreement, they still have
the right to continue with a due process hearing. The Hearing Officer for
the due process hearing will not be the same person who was the mediator.
For more information about mediation - including how to request mediation,
and how to prepare for mediation - go to TEA’s website at http://www.tea.state.tx.us/special.ed/medcom/medinfo.html.
- What if I need an interpreter? Back
to Top
If you need a language interpreter or an interpreter for the hearing- or sight-impaired,
you must tell the Special Education Hearing Officer before the hearing or
meeting where the interpreter will be needed. The Hearing Officer will find
and pay for the interpreter. When you ask for an interpreter, be sure to say
what kind of interpreter you need.
- Will the hearing room be accessible to persons
with disabilities? Back to Top
Yes. Facilities used for due process hearings or mediations will be accessible
by persons with disabilities.
- May I watch a due process hearing before I go
to my hearing? Back to Top
Not usually. Due process hearings are confidential. You may only watch a hearing
with the permission of the parents of the student who is the subject of the
hearing.
BEFORE THE DUE PROCESS HEARING
- How will I know when my case has been assigned
to a Special Education Hearing Officer? Back
to Top
You will receive a written “Notice of Filing of Request for a Due Process
Hearing” from TEA which notifies you that your case has been assigned
to a Hearing Officer. This notice will include the Hearing Officer’s
name, address and phone number. The Hearing Officer will contact the parties
to discuss procedures and scheduling the case for a pre-hearing conference.
(A pre-hearing conference is a discussion on the telephone with both parties
about the issues for hearing and the arrangements for the hearing.)
- What is a Resolution Session? Back
to Top
Once a district receives notice that a due process hearing has been filed
with TEA, the district has 15 days to have a resolution session meeting with
the parents. The resolution session must include someone from the district
who has the power to make a decision for the district. The district’s
lawyer is not allowed to come to the resolution session unless the parent
brings a lawyer. At the meeting you may talk about your reasons for filing
a due process hearing. The district has an opportunity to resolve or settle
the issues. If the district has not resolved the issues within 30 days after
it has received the notice that the due process hearing request was filed
with TEA, then the hearing moves forward.
- May I waive the Resolution Session? Back
to Top
You and the district may agree not to hold the resolution meeting. This agreement
must be in writing. You and the district may also agree to use mediation instead
of holding the resolution session meeting.
- What if I do not attend the Resolution Session
meeting? Back to Top
It is important to know that if you refuse to go to the resolution session,
then you have not met the legal requirements to get a due process hearing,
and the case may be dismissed.
- What if the case is settled in the Resolution Session
meeting? Back to Top
If the case is resolved by you and the district at the resolution meeting,
then both parties sign a settlement agreement. A copy of the settlement agreement
is sent to the Hearing Officer who will then dismiss the case. The settlement
agreement is a legal document and it can be enforced by a court, that is,
a state or federal district court may order the parties to do what is provided
in the settlement agreement. You and the district each have 3 business days
after the settlement agreement is signed to decide to cancel the agreement.
If the agreement is cancelled, then the due process hearing moves forward.
- Who do I send my correspondence and requests to
once a Hearing Officer is assigned? Back
to Top
You should send all written communications to the Hearing Officer and to the
representative of the school district or charter school (usually an attorney).
Also, the rules prohibit the Hearing Officer from talking to either you or
the district representative about the case without the other side being given
notice.
- What should I do if I cannot go to the hearing
on the day scheduled? Back to Top
You or your attorney should file a written motion for continuance with the
Hearing Officer. A motion for continuance is a request for the due process
hearing to be scheduled at another time. The motion must say why you cannot
come to the hearing on the day that it was scheduled and it must ask for the
hearing to be scheduled on another date. You must send a copy to the school
district. The other party has a right to respond to your motion. The Hearing
Officer will rule on your motion in a written order that will be sent to you
or your attorney. The Hearing Officer can grant or deny your motion.
- Where should I send my motion for continuance?
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Your motion should be sent to the Hearing Officer. A copy of the motion must
also be sent to the other party. A copy of any document or motion you file
must be sent to the Hearing Officer and also to the other party in your case.
- May I ask the school district for information that
they have about my case? Back to Top
Yes. In most cases, the rules allow a party to get ready for a due process
hearing by “discovering” information from the other party. You
have the right to ask the district or charter school for information that
they may have about your case. You may ask at any time after your case is
assigned to a Hearing Officer, but you must ask for everything you want before
the due process hearing begins. The district may charge a fee for requested
copies. This process is called “discovery” and TEA’s hearing
rules set out the way that this process is accomplished. These rules are located
at 19 TEX. ADMIN. CODE
§89.1180. The Hearing Officer can enter orders about discovery.
- I want to make sure a witness comes to my due
process hearing. How can I do that? Back
to Top
In order to make a witness come to the due process hearing, a “subpoena”
must be issued. A subpoena is an order that says that a witness has to come
to the hearing and testify or bring papers or documents or other information
to the hearing. You should ask for a subpoena in writing from the Hearing
Officer as long before the hearing as you possibly can. You may also ask a
witness to come to the hearing. But the witness does not have to come to the
hearing just because you ask them to come. Witnesses who are employed by the
district can usually come to the hearing if they still work for the district
at the time of the due process hearing.
- How should I get ready for the due process hearing?
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Know the facts that you want to talk about at the due process hearing. Know
as much as you can about the papers that you think the Hearing Officer should
look at for evidence to prove your case, and make sure to have copies for
the hearing. If you have an attorney, the attorney should help you prepare.
If you do not have an attorney, read the law and rules so that you can meet
deadlines and be as prepared as you can. The rules can be found online at
http://www.tea.state.tx.us/special.ed/rules.
Remember that a list of witnesses that you may want to come to the hearing
and copies of any papers that you want the Hearing Officer to look at for
evidence for your case must be given to the Hearing Officer and to the other
party at least five business days before the day of the hearing.
- May I call the Hearing Officer to talk about my
case? Back to Top
You may call the Hearing Officer to talk about the schedule or about the way
you have to do something. You may not talk to the Hearing Officer about the
subject of your case without the district being a part of the conversation.
- Where will my due process hearing be held? Back
to Top
Most due process hearings are held at the school district.
- May I ask for my due process hearing to be held
somewhere other than at the school district? Back
to Top
Yes. You may ask the Hearing Officer if the due process hearing can be held
somewhere other than the district. The Hearing Officer may say yes or no.
If the answer is yes, the Hearing Officer will take care of everything that
needs to be done to have the due process hearing in the new location.
THE DUE PROCESS HEARING
- What happens at a due process hearing?
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The people that come to the due process hearing are the Hearing Officer, the
parties and their attorneys, the witnesses, and a court reporter. Due process
hearings can last anywhere from a few minutes to several days.
Most due process hearings will have:
1. Opening statement - Each party may tell the Hearing Officer their side
of the case. The party with the “burden of proof” will be asked
to make its opening statement first and the other party will follow. You do
not have to make an opening statement, but it may help the Hearing Officer
understand your side of the story. These opening statements are not evidence
and cannot be used to prove facts in the case.
2. Presentation of evidence - In most cases, the party requesting action has
the “burden of proof.” If you have the burden of proof you must
show by evidence (testimony, documents, etc.) that you are entitled to get
what you are asking for. Usually, the party requesting the action presents
its evidence first.
3. Witnesses - Each party may have witnesses come to the due process hearing.
The witnesses are placed under oath. Witnesses first answer questions from
the party who called them. Then they may be cross-examined by the other party.
Sometimes witnesses may have to wait outside the hearing room until they are
called in to testify. Persons with specialized training or knowledge may be
considered expert witnesses by the Hearing Officer. Districts frequently call
expert witnesses in making a presentation of their case. You may cross-examine
the experts and you may want to call experts of your own..
4. Exhibits - If a party wants the Hearing Officer to look at particular papers
that they have they must “offer the documents into evidence.”
Those documents will be marked as exhibits. The party must provide a copy
for the Hearing Officer, a copy for the other party, and they must keep a
copy. Sometimes the person who prepared the document may need to testify about
it before it can be admitted as evidence. If the person who wrote the document
is not at the hearing, the document may not be admitted into evidence and
the Hearing Officer will never see it.
5. Objections - Any party may “object” to questions, testimony,
or exhibits that he does not think the Hearing Officer should use as evidence
to judge the case. The party must let the Hearing Officer know that he has
an objection. An objection must have a legal reason. The Hearing Officer may
“sustain” the objection. If an objection is sustained, the testimony
or exhibit that was objected to will not be used as evidence to judge the
case. The Hearing Officer may “overrule” the objection. If the
objection is overruled, the Hearing Officer may use the testimony or exhibit
when he is making the final decision in the case.
6. Closing statement – At the end of the due process hearing each party
may say what he thinks the evidence shows. Each party may say why the Hearing
Officer should make a final decision in that party’s favor. The closing
statement is not evidence. It may be written or oral. If it is written, it
may include any post hearing briefing ordered by the Hearing Officer.
- What is the “burden of proof”? Back
to Top
If you are the party asking for the hearing, you must prove that it is more
likely than not that you are right and that you should get what you are requesting.
The party that must prove something in order to win is the party that has
the burden of proof. You may ask the Hearing Officer about the burden of proof
and who has it at your prehearing conference.
- What happens if I don’t go to the due process
hearing? What happens if I go to the due process hearing but I don’t
participate? Back to Top
If you are a party in a due process hearing and you don’t go to the
hearing, the Hearing Officer may rule against you on every issue and you may
lose your case. If you go to the due process hearing and don’t participate,
the Hearing Officer may rule against you on every issue and you may lose your
case.
- May I bring a witness to the due process hearing?
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Yes. You may bring one or more witnesses to testify and to help explain documents
or your side of the story. The Hearing Officer may ask the parties to exchange
the names of their witnesses and to give an idea about what each witness will
say. This will be done before the hearing so the parties can be prepared.
- May I bring documents (my papers and files) as
evidence? Back to Top
Yes. You should bring any papers or files that you think the Hearing Officer
should look at when he makes a Final Decision about your case. Remember that
you must have already given the documents to the other party at least five
business days prior to the hearing. Also, you will want to bring an extra
copy of the documents if you want a witness to look at the documents and testify
about them.
- What should I wear to the due process hearing?
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There is no dress code for the due process hearing, but most people dress
as if they were going to a business office.
- What should I call the Hearing Officer? Back
to Top
You should call the Hearing Officer “Mr. ______” or “Ms.
_____.”
- What if I have an emergency at the last minute
and can’t go to the due process hearing? Back
to Top
You must call the office of the Hearing Officer as soon as you can and explain
your situation. You should also try to call the other party’s attorney.
- How will the due process hearing be recorded? Back
to Top
The hearing will be recorded by a certified court reporter.
- How do I get a copy of what was recorded? Back
to Top
The court reporter will provide you with a free copy of the transcript of
the hearing. The transcript will be a written copy of everything that was
said at the hearing. It is usually prepared within ten days or two weeks of
the hearing.
- Will the Hearing Officer make a decision on my
case at the due process hearing? Back
to Top
In most cases the Hearing Officer will give you the Final Decision on or before
the deadline for the decision. On rare occasions, the Hearing Officer may
issue a ruling from the bench, but this usually does not happen. Sometimes
the Hearing Officer rules that the parent wins on some issues but loses on
other issues.
AFTER THE DUE PROCESS HEARING
- Will the Hearing Officer ask for more information after the due
process hearing? Back to Top
The Hearing Officer may ask you to make a written closing argument on a question
that came up in the due process hearing.
- May I give the Hearing Officer more information after the due process
hearing is over? Back to Top
No, not unless the Hearing Officer asks for it.
- Is there an appeal from the Hearing Officer’s
Final Decision? Back to Top
Yes. You have the right to appeal the decision to federal district court or
to state district court. All appeals must be made no later than 90 days following
the date of the Hearing Officer’s Final Decision. Most parents hire
attorneys to present their appeals in state or federal district court. You
do not have to hire an attorney to represent you in an appeal, but there are
some courts that require this. You should check with the local rules of the
court where you are filing your appeal.
Although TEA legal staff cannot provide legal advice or counsel, if you have
general questions about due process hearings or mediations you may call 512-463-9720.