Are You Ready to File for Due Process?

There are, of course, innumerable reasons why you might be filing for due process on behalf of your child. There is no checklist applicable to all situations. However, there are common issues that arise in due process cases. The most common issues are whether the school district failed to provide a free appropriate public education (FAPE) and/or committed serious procedural violations that resulted in a denial of a free appropriate public education to your child or a denial of parent participation in the IEP process.

If you are considering filing for due process, you should seek the advice of a special education attorney. There is little chance you will prevail in a due process hearing unless an experienced special education attorney represents you, or perhaps a top-notch advocate who has a history of successful due process cases. The only exception might be if there is a single uncomplicated issue, such as the failure of the school district to respond to a request for prior written notice. Even then, you should consult with a special education attorney before filing for due process.

Due Process Checklist

Do you have a complete copy of your child's school file?

If the school is offering a placement and/or services that you do not believe is appropriate, you need to find out as much information as possible about the offered placement and services. Have you made "Prior Written Notice" requests to obtain information about the offered placement and services? (See front page article on the this website, Section - Prior Written Notice)

Do you have a qualified expert witness who has assessed your child and will be able to testify on behalf of your child? Most cases center on whether your child has been denied a free appropriate education? If this is the case in your due process, you will likely need an expert witness who has assessed your child, written a report and can testify as to the following issues:

1. A description of the tests performed, history taken, observations.
2. A description of your child's disability.
3. How this disability adversely affects your child's education.
4. A description of your child's unique needs (academic, social, adaptive living skills).
5. Whether the school's goals and objectives were appropriate.
6. A description of the appropriate teaching methods, the placement, the specific program and services that are appropriate - with recommended days and hours, qualifications of personnel, classroom environment.
7. If you are contending that the school's placement and services are not appropriate, the expert's reasons therefore.
8. If you are seeking a private placement or services, the reasons that the expert believes the private placement and or services are appropriate.
9. If you are claiming that the placement and services the school has been providing are not appropriate, you will likely need an expert to testify that your child has not made reasonable educational progress. What proof do you have to show that your child was not afforded with a free appropriate public education? Do you have a record of testing? Samples of your child's work?

If the school is offering a new program that you do not believe is appropriate, you will most likely need an expert to testify that the new program and services will not allow your child to make educational progress. Have you been able to have your expert observe the placement offered by the school?

If you do not have an expert, have you considered requesting a free Independent Educational Evaluation? (See main article on this website "Your Child's Legal Rights to a Special Education").

Do you have an experienced special education attorney? The chances of winning a due process without an attorney are very slim. A due process case is much like a court trial with opening and closing statements, examination and cross-examination of witnesses, and trial strategy.