By: Arshi Pal, Esq.

The Individualized Education Program (IEP) is the central mechanism by which a school district ensures a student with a disability receives a free appropriate public education (FAPE). The Committee on Special Education (CSE) must meet at least annually to create the student’s IEP. The IEP is an important document that contains the student’s diagnosis, classification, levels of performance, annual goals, recommendation program and accommodations. The CSE consists of the student’s parent/guardian, general education teacher, special education teacher, school psychologist, and a district representative. Other potential members include the school nurse, school administrator, and related service providers. The parents also have a right to invite people such as a parent advocate/attorney, doctor, professional working with student, family member or other persons having knowledge or special expertise regarding the student. With so many individuals involved, disagreements can happen. Generally, parents have two years to file a claim, this is known as the statute of limitations.

When disputes occurs, parents may seek various forms of relief including but not limited to compensatory services, evaluations, or tuition reimbursement. In such circumstances, due process is often the most effective way to resolve disagreements. The common disagreements include the decision to convene a CSE, classify the student as a student with a disability, program or related services recommendations, placement recommendations or disagreements regarding evaluations. School districts may file requests for an impartial hearing when a parent requests an independent educational evaluation but the district believes their evaluation is sufficient.

Impartial Hearing Process

An impartial hearing is a legal proceeding where an Impartial Hearing Officer (IHO), the judge of the case, will decide the outcome of the matter. The IHO is not an employee of the school district. They are an impartial adjudicator. Impartial hearings are similar to trials but are slightly informal. The process begins with a parent filing a due process complaint or a request for an impartial hearing. The due process complaint must contain the name of the student, the student’s address, the student’s school, a description of the problem, and a proposed resolution. This begins the resolution period, where the school district can hold a meeting to try to resolve some or all of the parent’s disputes. Many disputes resolve in resolution or a later settlement agreement. If the issues are not fully resolved, the matter will go to hearing.

The IHO has a 45 day compliance date from the date of when resolution period expires. The compliance date can be extended by request of either party so long as there is no prejudice to any party. Once the resolution period expires, the IHO will hold a prehearing conference, to discuss the case issues, any motions or requests for subpoenas, any statements of facts not in dispute, potential witnesses and hearing dates. Then, the parties will prepare their evidence and witnesses for hearing. Witnesses may include the parents, outside providers, psychologists, evaluators, doctors or family members who have knowledge regarding the student’s special education needs. Five business days prior to the hearing date, the parties must disclose their evidence packets and witness list with the other side and IHO.

The hearing can occur either in the school district offices or virtually, if the parents request it. At the hearing, each party can make opening statements, present documentary evidence, witnesses and closing statements. Typically, each side is given a day to present their case. However, hearings can take place over multiple nonconsecutive days. During the hearing, either side can ask the other side’s witnesses cross examination questions. The IHO may also ask the witnesses questions. After the hearing, the IHO will issue a written decision. Then either side may appeal the decision to the New York Office of State Review and then later, to federal or state court.

Although the impartial hearing system is supposed to be parent friendly or parents can file pro se, there are many technical rules and deadlines that need to be followed. It can be a daunting task to complete and go through.

Other Avenues to Seek Relief

For disagreements, in addition to due process, parents have other options available to them. For example, parents may file a complaint with the New York State Education Department to ask for an investigation and review of IDEA violations. Also, mediation can be available as an alternate dispute resolution process where parents and school district officials, if all agree, meet to work collaboratively on legally binding agreements to resolve conflicts. Other options exist as well.

Due to the complexity of the hearing process and other avenues that may be available, it is recommended to consult with an experienced special education attorney to discuss your rights, case viability and representation.