OSEP TO ISSUE TECHNICAL ASSISTANCE TO STATES REGARDING DUE PROCESS HEARINGS AND STATE COMPLAINTS
Courtney N. Stillman, Esq.
Himes, Petrarca & Fester, Chtd.
Many of us have experienced delays in Illinois due process proceedings. Based on correspondence submitted to the U.S. Department of Education Office of Special Education Programs (OSEP), that described policies and procedures in various states alleged to be inconsistent with IDEA due process hearing requirements, OSEP has announced that it will provide technical assistance regarding its expectations for appropriately implementing IDEA due process and state complaint requirements. In OSEP Policy Letter 22-04, Letter to Zirkel, issued April 15, 2022, OSEP provided informal guidance:
Hearing Timelines are Variable. OSEP opined that although the basic timeline for issuance of a final decision in a due process hearing is 75 calendar days, including 30 days for resolution and 45 days for a hearing and final ruling after the resolution period, there may be variations in both the resolution period and the post-resolution period. For example, the parties could agree to waive a resolution meeting and mediation, or the parties could agree to extend the resolution timeline to continue mediating the dispute. After the resolution period, a hearing officer may grant specific extensions of the 45 day timeline at the request of either party. OSEP refused to state an outer limit of calendar days for expedited due process hearings, explaining that the 20 school day timeline may vary depending on school holidays, in-service days and school closures for inclement weather and other reasons.
Effect of Parent’s Failure to Include a Proposed Resolution in the Due Process Complaint. OSEP wrote that if a parent does not include a proposed resolution, the district may challenge the sufficiency of the due process complaint. However, OSEP opined that parents may not be aware of possible ways to remedy the issue in their complaint, such that the parents’ failure to propose a resolution “to the extent known and available at the time the complaint is filed” does not automatically render a due process complaint insufficient. OSEP stated that the inclusion or omission of a proposed resolution does not limit a hearing officer’s authority and ability to formulate a remedy.
Dismissal of Due Process Complaints. OSEP explained that a Due Process Complaint may be dismissed because it is insufficient. Otherwise, a hearing must be held unless both the parent and district agree to file motions to dismiss or for summary judgment.
OSEP advised that it intends to review state compliance with IDEA’s dispute resolution requirements.