Remedies for special education cases Lawyer Manual

There are two standard remedies for a special education case: filing a compliance complaint with the Illinois State Board of Education (“ISBE”) or requesting an administrative due process hearing to address matters of dispute with the local school district. Appeals from adverse due process decision may be brought in state or federal court.

Compliance complaints

A compliance complaint addresses obvious legal violations by the school district, such as a failure to abide by statutory timelines or to enforce the terms of an IEP. It is not the appropriate route for cases in which there is a dispute as to what services are appropriate.

A compliance complaint must contain:

• The statement that the school has violated a requirement of IDEA Part B;
• The facts that support this;
• The violations alleged with the specific child;
• The name and address of the child and the school they attend if for a specific child;
• The signature and contact information of the person sending the complaint;
• A description of the problem of the child, including facts; and
• A proposed resolution.

Compliance complaints can only be filed if the violation occurred within one year from the date the complaint is received, unlike requests for due process hearings, which contain a 2-year statute of limitations. Through a compliance complaint, ISBE has 60 days to investigate the complaint. The parent is still permitted to file for due process after a compliance complaint has been filed, but at that point, ISBE’s investigation will be halted.

Request for due process hearing

Either a parent or public agency can file a due process complaint concerning issues with identification, evaluation, or educational placement of a student with a disability. 34 CFR §300.507. It must contain:

• The name of the child
• The address where the child lives
• The name of the school the child attends
• In the case of a homeless child or youth available contact information for the child, and the name of the school the child is attending
• A description of the problem, including specific facts
• A proposed resolution to the problem. 34 CFR §300.508(b)

The party filing has the burden of persuasion. Schaeffer v. Weast, 546 U.S. 49 (2005).

Due process complaints can only be filed if the violation occurred within 2 years from the date of the alleged violation. 34 CFR §300.507(a).

Within 15 days of receiving the due process complaint, the school must convene a resolution meeting with the parent and the IEP team. 34 CFR §300.510(a). The school is not permitted to bring an attorney unless the parents have an attorney. 34 CFR §300.510(a). However, the meeting does not need to be held if both the parent and the school agree to waive the meeting or agree to use mediation. 34 CFR §300.510(a)(3).

Upon filing, a hearing officer will be assigned within 3 days, another hearing officer may be substituted if requested by one of the parties once as a matter of right. 105 ILCS 5/14-8.02a(f-5). The hearing officer will set a date for the prehearing conference, which will occur after the 30 day resolution period has expired.

After the 30 day resolution period has expired, the 45-day due process timeline begins. However, if the parties waive resolution or agree that resolution is not possible, this timeline could begin earlier. The first thing that will happen after the resolution period expires is the prehearing conference. Both sides should submit pre-hearing disclosure statements in advance of this, usually telephonic, phone conference. By the time the 45-day timeline is complete, the hearing must be held, and there must be a written decision by the hearing officer. The parties may delay this timeline by mutual consent. 23 Ill. Admin. Code §226.640(b)(1).

In the case of a 45-day emergency removal or if the parent disagrees with the decision in the MDR, an expedited hearing will take place. 34 CFR §300.532(c).

An appeal of a due process hearing decision

Under 34 CFR §300.516, an adverse decision to a due process hearing can be brought in either State or Federal Court within 90 days from the date of the decision by the hearing officer.