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(6.33) How do I know if I am prepared for the due process hearing?

(6.33) How do I know if I am prepared for the due process hearing?

At the due process hearing, you will be required to present evidence which establishes that your child needs the services or placement you are seeking through due process. The following are some examples of common disputes:

  1. You are dissatisfied with the goals and objectives of your child’s IEP, believing that they are unclear, or that your child could accomplish more with certain services than the district is willing to acknowledge. You will need evidence that the objectives you would like to write are reasonable expectations for learning and acquiring skills, given your child’s disability and the amount of time in which you would expect the objectives to be reached.
  2. You agree with the IEP goals and objectives, but disagree with the district on the level of services needed to accomplish these objectives. You will need evidence regarding the level of services required by your child.
  3. You disagree with the placement the district is proposing, believing that it cannot meet the requirements of your child’s IEP or does not offer your child maximum appropriate interaction with nondisabled students. You will need evidence regarding the supportive services that could be used to make it possible to serve your child in the regular classroom, or in a more inclusive or integrated way.

You should not consider requesting a due process hearing until after you have familiarized yourself with the legal standards for the IEP services or placement you hope to obtain. You must also make sure that the proof you need to meet those legal standards will be available to you when you need it. If some of your proof is in the form of documents, you must have those documents at least five business days before the hearing to exchange with the school district. The witnesses you intend to use to prove your case must appear, prepared to testify at the date, time and place set for the hearing.

The following are examples of typical hearing issues the ALJ will examine if you are challenging the appropriateness of a school’s IEP for your child:

  1. Is the school’s IEP designed to meet your child’s unique needs?  For example, were IEP goals written for all the areas of educational deficit that were identified in assessments of your child?  Were the services offered related to making progress toward those goals?  In other words, were your child’s educational deficits considered when decisions were made about services and strategies to address those learning problems or were decisions made based on availability of space, administrative convenience, or some other factors that have nothing to do with individualizing a program for a particular student?
  2. Was the IEP “reasonably calculated to provide “educational benefit”, (i.e. makes progress appropriate in light of the child’s circumstances)?  If your child did not make progress toward goals, this is evidence supporting a finding that the IEP was not reasonably calculated to result in progress. Or, if the services or placement offered were not related to the goals to be achieved, the IEP was not reasonably calculated to provide benefit. [Endrew F. v. Douglas County School District, 137 S.Ct. 988 (U.S., 2017).]
  3. Was the program that was implemented for your child consistent with what was written in the IEP?  In other words, were the services promised in the IEP actually provided?  And, were they provided with the frequency, duration and setting called for in the IEP?

If you are challenging the restrictiveness of the placement in which to implement the IEP, the ALJ generally will examine these basic factors:

  1. Is the restrictive placement offered by the district necessary in order for your child to benefit, that is, to make progress toward his goals? Or, could progress occur in a less restrictive setting, with greater access to nondisabled peers? What supplemental services (such as instructional or behavioral support or curriculum modifications) could be used to obtain benefit in a less restrictive setting? [Cal. Ed. Code Sec. 56364.2(a).]
  2. What nonacademic benefit (such as socialization, behavioral or communication skills development) could be gained by placement in a less restrictive setting?
  3. What would be the effect on the teacher and nondisabled students if your child is placed in the less restrictive setting?  Would your child take up too much of the teacher’s time in class or in preparation outside class? Would your child be disruptive or distracting to the other students in the less restrictive setting?  If the teacher or other students would be adversely impacted, what supplemental services could be added to address these issues?
  4. What will be the cost to the district of any supplemental services needed for appropriate placement in the least restrictive setting?  Will that cost be burdensome to the district and adversely affect the availability of services to other students in the district?  (Although this is one of the factors that may be considered, it is not usually raised by the district as a reason for keeping a student from being placed in a less restrictive setting). [See Sacramento City Unified School District v. Holland, 786 F. Supp. 874, 878 (E.D. Cal. 1992).] See Chapter 7, Information on Least Restrictive Information.

Therefore, in the typical situations listed above, you are not prepared for the hearing until you are able to introduce evidence in the form of testimony and documents which speak to these issues in a way which will give an ALJ the information needed to write a decision in your child’s favor.