Due Process

Introduction

A due process hearing is a quasi-judicial, legally binding administrative proceeding in which a final decision is rendered by an Administrative Law Judge (ALJ). Procedures are governed by the rules of procedures of the Maryland Office of Administrative Hearings (OAH) and special education law. A parent/guardian or MCPS may file a due process hearing request by filing a Request for Mediation/Due Process Hearing (Due Process Complaint Notice); however, parents/guardians, public agencies, or other parties may use another form or document as long as it meets the requirements for filing a due process complaint. An OAH staff member schedules all due process hearings. ALJs preside over due process hearings.

Requirements

A parent or a public agency may file a due process complaint on any of the matters relating to the identification, evaluation or educational placement of a child with a disability, or the provision of FAPE to the child.

The due process complaint must allege a violation that occurred not more than two years before the date the parent or public agency knew or should have known about the alleged action that forms the basis of the due process complaint, or, if the State has an explicit time limitation for filing a due process complaint under this part, in the time allowed by that State law, except that the following exceptions to the timeline apply:

      • Exceptions to the timeline. The timeline described in paragraph (e) of this section does not apply to a parent if the parent was prevented from filing a due process complaint due to—

          • Specific misrepresentations by the LEA that it had resolved the problem forming the basis of the due process complaint; or

          • The LEA's withholding of information from the parent that was required under this part to be provided to the parent.

Response to the Due Process Complaint

When a parent files a due process complaint, MCPS shall:

  • Inform the parent of free or low cost legal and other relevant services available;

  • Provide the parent with a copy of the procedural safeguards document; and

  • Inform the parent of the availability of mediation.

Resolution Meetings

MCPS is required under IDEA to convene a “resolution meeting” when a party requests a due process hearing or MCPS declines to mediate; however, the resolution meeting may be waived if both the parents/guardians and MCPS agree in writing to waive such meeting or agree to use the mediation process. At the resolution session, the parents/guardians discuss their complaint and the facts that form the basis for the complaint; MCPS is provided an opportunity to resolve the complaint. If the case is resolved, a written settlement agreement is signed by both parties. Both parties have three days to rescind the settlement agreement.

If the case is not resolved within 30 days of MCPS receiving the request for a due process hearing, a due process hearing is scheduled. Resolution meetings be held within 15 days of receipt of notice of the parents/guardians’ request for a due process hearing. Participants in the meeting are the parents/guardians and the relevant member(s) of the IEP team who have specific knowledge of the facts identified in the complaint. The parents/guardians and MCPS determine who are the relevant IEP team members. An MCPS representative with decision-making authority on behalf of MCPS shall attend the meeting. An MCPS attorney may not attend the resolution meeting unless the parents/guardians are represented by counsel.

If MCPS is unable to obtain the participation of the parents/guardians in the resolution meeting after reasonable efforts have been made and documented, MCPS may, at the conclusion of the 30-day period, request that a hearing officer dismiss the parents/guardians due process complaint. A due process hearing may occur by the end of the resolution period if the parties have not resolved the dispute that formed the basis for the due process complaint.

Stay Put

During the pendency of any administrative or judicial proceeding requesting a due process hearing, unless the State or local educational agency and the parents of the child agree otherwise, the child involved in the complaint must remain in his or her current educational placement.

If the complaint involves an application for initial IEP services for a child who is transitioning from Part C of the IDEA to Part B and is no longer eligible for Part C services because the child has turned three, the public agency is not required to provide the Part C services that the child had been receiving. If the child is found eligible for special education and related services under Part B and the parent consents to the initial provision of special education and related services, then the public agency must provide those special education and related services that are not in dispute between the parent and the public agency.

Due Process and Disciplinary Appeals

The parent of a child with a disability who disagrees with a decision regarding placement due to a disciplinary incident or a manifestation determination, or an LEA that believes that maintaining the current placement of a child is substantially likely to result in injury to the child or others may appeal the decision by filing a due process hearing request. An ALJ may either return the child to the placement prior to the disciplinary action or other that the child go to the changed placement for not more than 45 school days. Due Process complaints filed under these circumstances must be expedited and occur within 40 school days of the complaint being filed. During the pendency of the hearing, the child shall stay in the interim alternative educational setting for which the school system has placed the student, if appropriate.

Legal Authority:

34 C.F.R. 300.507, et seq.; 34 C.F.R. 300.532; COMAR 13A.05.01.15