Tuesday, March 17, 2009

Due Process Hearing Requests

This is some excellent info that I picked up on the AZEI Yahoo group about requesting a due process hearing. I am re-posting it with permission from the author, Maureen Casey.
Please note: this is not legal advice—if you would like legal advice you can visit the following websites to identify a lawyer: www.cadre.org, www.saarc.org, www.azbar.og
1. Parents want to file a complaint and request a due process hearing. (not a systems complaint which is more of an internal investigation by the agency. They want an impartial hearing officer appointed) 34 CFR 303.429 and 34 CFR 303.420 Have parents state that a hearing officer should be appointed and that the matter should be heard and decided within 30 days as required by statute. State that the child must continue to receive the appropriate early intervention services being provided under the last agreed upon individual family service plan as noted in AZEIP's own procedures during the pendancy of the due process proceeding.
2. The complaint should state that the child is a child with a disability and gi ve the child's age and services listed on service plan. A brief individualized factual summary would be appropriate here.
The complaint should include a written statement that the agency (DES/AZEIP) has violated IDEA Part C by failing to provide appropriate services for a child with a disability ages birth through 2 and list the services that the agency has proposed to eliminate or reduce.
If appropriate the complaint should state that the agency failed to provide the parents an opportunity to participate in a meeting where reduction or elimination of services was discussed and failed to provide the parents with prior written notice (PWN) or procedural safeguards. PWN is required anytime the agency proposes or refuses to initiate or change the ident ification, evaluation or placement of a child or the provision of services to the child or the child's family. Cite 34 CFR 303.403(a) PWN must include a statement by the agency of what action they propose to take or are refusing to take and the reasons for their action or refusal. This notice must be provided after a decision but BEFORE the action is taken to allow parents time to exercise their procedural safeguards. I might also state that the agency failed to establish a policy concerning payment for services and/or applied any new policy illegally and retroactively. (this applies to parents who were told they would now be charged increased fees for their child's services) Again, fill in with specific details such as the dates of notice, services proposed to be eliminated and state that the agency's decision is NOT based on the individual needs of the child but is arbitrary and based soley on budgetary concerns. Reference any evaluations or prior documents which state the services that the child needs to make progress in all areas of development. State that the agencies decision to eliminate or reduce services to the child is a direct violation of IDEA Part C.
3. Remedies sought should be continuation of services during the pendancy of the due process complaint (which should be 30 days); compensatory services or funding for any services misses or not provided and immediate approval for reinstatement of the services which were cut.
4. I would advise parents to write a letter requesting that they be allowed to review their child's record pursuant to FERPA. The agency must make the records available for inspection within 2 weeks of the request. Parents can't effectively pursue a due process hearing without a complete copy of the child's record.
Send the written request for due process and complaint to:
Molly Bright Part C Coordinator and Executive Director
Arizona Early Intervention Program
Department of Economic Security
3839 N. 3rd Street Suite 304
Phoenix AZ 85012

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