When the parent and the system disagree over the identification, evaluation, placement or provision of FAPE, either party may request a due process hearing. An impartial due process hearing is designed to provide an opportunity to resolve differences between concerned parties in the identification, evaluation, placement or provision of a free and appropriate public education for a student with a disability. A hearing may be requested by either the school system or the family when the parties cannot agree and other means of dispute resolution have not been successful. A due process hearing must be conducted and the decision issued within 45 days of the request for a hearing. Extensions may only be allowed when both parties agree and the extension does not violate the rights of the student.
When a request for a due process hearing is made, the parties will be asked if they would consider participating in either an Early Resolution Session or mediation prior to the hearing.
Due process hearings are conducted by the Office of State Administrative Hearings (OSAH). Once a request is received by OSAH, an administrative law judge (ALJ) will be assigned to conduct the due process hearing. That ALJ will contact both parties and begin to set up the arrangements for the impartial due process hearing.
The rule for formal complaints can be found in the State Education Rules at 160-4-7-.12 Dispute Resolution.
Procedures for Requesting an Impartial Due Process Hearing
- The initiating party should inform the other party and the Georgia Department of Education (GaDOE) of the request for a due process hearing
- The system is responsible for relaying the hearing request to GaDOE Special Education Services and Supports on the day the request is received in the system
- The request should contain the name of the student, the school and system in which the student is enrolled, contact information for the family and school system contact information. The request should also contain a description of problem and a proposed resolution. The form provided by GaDOE is to be used, but is not required.
- A system should assist the parent to complete the form as necessary to get a sufficient complaint notice
- Once received by GaDOE, immediate contact will be made with the Office of State Administrative Hearings (OSAH) to assign the case to an ALJ
- The ALJ will contact the parties and begin to set up the logistics of the hearing
- An expedited due process hearing may be requested if the request is related to a manifestation determination or placement in an alternative educational setting
Timeline: A due process hearing must be conducted and the decision issued within 45 days of the request for a hearing. If an Early Resolution Session or mediation is to be used, the timeline of 45 days begins at the conclusion of a 30 day resolution period of request or earlier if the meeting does not result in a settlement. Other extensions may only be allowed when both parties agree and the extension does not violate the rights of the student.
Responsibilities of System upon receipt of a Request for a Due Process Hearing
- The system must send the Due Process Request to the GaDOE
- If the system has not provided prior written notice to the requestor regarding the issues in the request, they must, within 10 days provide such prior written notice
- If the system has provided prior written notice, they must respond to the due process request within 10 days
- If the system feels that the due process request is insufficient, the system must notify the ALJ within 15 days of receiving the request (The ALJ has 5 days to determine if the request is sufficient. If sufficient, the timeline moves forward. If not sufficient, the parent must re-file the request.)
- Offer the options of Early Resolution Session or Mediation to the other party
- If Early Resolution is to be used, set up a resolution session within 15 days of receipt of due process request
Responsibilities of the Parent upon requesting or receiving a Request for a Due Process Hearing:
- If the parent is the receiving party (not the party making the request), they must respond to the system within ten days of receiving notice of a due process request
- If the parent is the initiating party, they must provide sufficient information with the request to allow the system to understand why the request is being made
- Consider using either Early Resolution Session or Mediation to resolve the differences
Early Resolution Session:
- Is available when a due process hearing has been requested
- Must be scheduled within 15 days of a due process hearing request
- Relevant members of the Individualized Education Program (IEP) Team will participate
- The system will include a representative who is able to commit the resources of the system
- If agreement is reached, a written settlement will be developed and signed by the system and the family
- An agreement is binding in State or District Court after a 3 day review period or through the State complaint process
- The agreement must be implemented by the end of the 30 day resolution period or the due process hearing will proceed
- If no agreement is reached, the timeline for due process hearings (45 days) begins upon notice to the ALJ
Procedures / Rights for a Hearing:
- The hearing will be conducted at a time and place convenient to the parent and the system involved and in an impartial location
- The system shall provide the parent/guardian information about low cost or no cost legal services
- Parent have the right to request and obtain copies of all records concerning the student from the school system five or more business days prior to a hearing
- Either party may be accompanied and advised by legal counsel or another individual with knowledge or training related to the student with disability about whom the hearing is being conducted
- Either party may present evidence at the hearing if disclosed to the other party at least five business days prior to the hearing
- Either party may compel the attendance of witnesses. One party must provide a list of witnesses to the other party at least five business days prior to the hearing
- Both parties will receive a copy of the written record of the hearing
- Parent have the right to have the student present at the hearing
- Confidentiality of information shall be maintained even when in a hearing
- Parent in a hearing have a right to obtain relief that the ALJ determines appropriate, which may include payment for an independent evaluation, reimbursement for services, alteration of the IEP, alteration of the placement or other relief as determined by the ALJ
- An appeal to a due process hearing must be filed within 90 days in a State or District Court
Student Status during the Hearing:
- When a hearing has been requested by either party, the student shall remain in his or her current educational placement unless the parent and the system agree to an alternate placement
- If the hearing is the result of an initial admission to public school, the student shall be placed with the consent of the parent in the school program until completion of the hearing proceedings
- The current educational placement includes the services provided in the IEP and all related services
Other special circumstances may apply and the Georgia Rule (160-4-7-.18) should be reviewed to determine the student status pending a due process hearing.