Implementation of IDEA
Converting “Mediation Only” to a Due Process Hearing
As of December 1, 2005
As of December 1, 2005 the petitioner may submit a written request to have a petition converted to a “Due Process” petition. This request may be submitted at any time after the initial petition is filed with the Office of Special Education Programs (OSEP). This procedure permits the stay put provision of the IDEA 2004 to remain in effect pending the outcome of the due process hearing.
The following procedure is implemented when a written request from a parent to convert a case from “Mediation Only” to one for “Due Process” is received by the Department:
- The case is assigned a new agency number;
- A letter acknowledging the new case number and due process requirements is sent to the parties;
- The 30-day resolution period begins and all responsibilities and rights of the petitioner and respondent are implemented (i.e., resolution session/mediation, sufficiency challenge may be filed, response/notice is provided); and
- OSEP transmits the case to the Office of Administrative Law by day 30.
A similar procedure will be followed when the district files for “Mediation Only” and then requests, in writing, that it be converted to a “Due Process” petition. However, when the district files for due process against a parent, the district is not required to conduct a resolution session. A representative from the OSEP will contact the parties to determine whether the parties will agree to mediation and if so, the representative will arrange for the mediation conference. If the parties do not agree to mediation the case will be immediately transmitted to the Office of Administrative Law (OAL) for a hearing.
Questions and Answers
What happens when a parent files for due process?
When a due process hearing request is received the district is given 30 days to resolve the matter before going to a hearing. The district must conduct a resolution session with the parents and the relevant members(s) of the IEP team who have specific knowledge of the facts identified in the request. The resolution session must include a representative of the district who has authority to make decisions on behalf of the district. The district may not include its attorney unless the parent is accompanied by an attorney. The resolution session must be held within 15 days of receiving the parents’ request. For an expedited due process hearing, the resolution session must be held within seven days of receiving the request.
In place of the resolution session both you and the district may agree to hold a mediation meeting conducted by a mediator from the OSEP. If the district agrees to mediation, a representative of the district must contact OSEP to facilitate the scheduling of the mediation.
If you wish to waive the resolution session and proceed directly to a hearing, both you and the district must agree in writing and forward the waiver to the OSEP.
What happens when a district files a petition against a parent?
When the district files for due process against a parent resolution sessions are not held. Instead, a representative from the OSEP will contact the parties to determine whether the parties will agree to mediation and if so, the representative will arrange for the mediation conference. If the parties do not agree to mediation the case will be immediately transmitted to the Office of Administrative Law for a hearing.
Does a parent or district have to respond to a petition filed for due process?
When a parent requests a due process hearing or an expedited due process hearing the district must send a written response to the parent within 10 days of receiving the petition and, is some cases, may have to send the parents written notice with respect to the issues in the petition.
When the district requests a due process hearing the parent must send a response that specifically addresses the issues raised in the request for due process. The response must be sent to the district superintendent or board attorney within 10 days of receipt of the request for a due process hearing.
May the petition be challenged by the receiving party?
Yes. The receiving party (district or parent) may claim that the petition does not meet the requirements of law and therefore, the petition is not sufficient. The receiving party has 15 days to challenge the petition by notifying the OSEP, in writing, that the petition is not sufficient. The sufficiency challenge will be forwarded to the Office of Administrative Law (OAL) within five days of receipt and the administrative Law Judge (ALJ) will determine whether the petition meets the requirements of law. If the petition is deemed insufficient the ALJ may dismiss it completely or allow the party to amend the petition. If the petition is deemed sufficient the timelines will continue. If the petitioner is allowed to amend the petition the timelines will continue from the time the ALJ deems the petition sufficient.
Updated January 2006