Due Process

Filing a due process complaint is the first step in the process that may lead to a due process hearing. The SCDE has a form that a party may use to file a due process complaint, but use of the form is not required. When the parent files the due process complaint, the parent must provide a copy of the complaint to the local educational agency (LEA), which is the school district or public agency, and forward a copy to the SCDE, Office of General Counsel (OGC). When the LEA files the due process complaint, the LEA must provide a copy of the complaint to the parent and forward a copy to the SCDE, OGC. The complaint must include specific information, which includes:

• The name of the child, 
• The address of the residence of the child, 
• The name of the school the child is attending, 
• In the case of a homeless child or youth (within the meaning of Section 725(2) of the McKinney-Vento Homeless Assistance Act (42 U.S.C. 11434(a)(2)), available contact information for the child, and the name of the school the child is attending;
• A description of the nature of the problem of the child relating to the proposed or refused initiation or change, including facts related to the problem, and 
• A proposed resolution of the problem to the extent known and available to the party at the time.

The due process complaint must allege a violation that occurred not more than two years before the date the parent or LEA knew or should have known about the alleged action that forms the basis of the due process complaint. The two-year timeline does not apply to a parent if the parent was prevented from filing a due process complaint due to

1. specific misrepresentations by the LEA that it had resolved the problem forming the basis of the due process complaint; or
2. the LEA withheld information from the parent that it was required under the IDEA to provide to the parent. 

If the due process complaint does not have all of the required information the LEA may ask the hearing officer to dismiss the complaint as insufficient. The LEA or parent receiving the due process complaint has 15 calendar days after receiving the complaint to challenge the sufficiency of the complaint. Within 5 days of receipt of notification from a party that a due process complaint is insufficient, the hearing officer must make a determination on the face of the due process complaint of whether the due process complaint meets the minimum requirements and immediately notify the parties in writing of that determination.

The hearing officer has the ability to dismiss the complaint for insufficiency, allow the filing party to amend the complaint, or determine the complaint is sufficient and proceed with the regular timelines. If the due process complaint is amended, either as a result of the hearing officer’s order or an agreement between the parties, the timeline for the resolution meeting and the time period for resolving the complaint restart when the amended due process complaint is filed.

The school district or agency must provide the parent, legal guardian, or surrogate parent a copy of the procedural safeguards notice that includes a full explanation of the difference between the due process hearing and complaint investigation procedures and the applicable timelines for each; the relevant procedures for each; and the right to request mediation instead of, in addition to, or in lieu of a resolution meeting.

If the LEA has not sent a prior written notice (PWN) that meets the requirements of the IDEA regulation at 34 C.F.R. § 300.503 to the parent or legal guardian that specifically addresses all of the issues in the due process complaint, the LEA must provide a written response within 10 calendar days of receiving the due process complaint. 

If the LEA files the due process complaint, the parent or legal guardian is required to send a written response to the issues in the due process complaint to the LEA within 10-calendar days of receiving the due process complaint. The party responding to the due process complaint must provide a copy of the response to the SCDE, OGC at the same time that it provides a copy to the other party.

Within 10 calendar days of receiving the due process hearing complaint, the LEA must provide the parent and the SCDE notice of the hearing officer’s appointment. The hearing officer, at a minimum must:

• be trained by the SCDE;
• be at least twenty-one years of age and a high school graduate or hold an equivalent credential;
• be selected without regard to race, sex, creed, or category of disability;
• be unbiased toward any party involved in the hearing;
• have no personal or professional interest that would conflict with his or her objectivity in the hearing; and
• shall not be an officer, agent, school board official, or employee of the school district/agency that is involved in the education or care of the student, or formerly employed by the school district or agency involved in the matter. A person who otherwise qualifies to conduct a hearing is not an employee of the school district/agency solely because he or she is paid by the school district or agency to serve as a hearing officer.

In addition to these requirements any special education due process hearing officer conducting a hearing must:

• possess knowledge of, and the ability to understand, the provisions of the IDEA, federal and state regulations pertaining to the education of students with disabilities, and legal interpretations of the IDEA by federal and state courts;
• possess the knowledge and ability to conduct hearings in accordance with appropriate, standard legal practice; and
• possess the knowledge and ability to render and write decisions in accordance with appropriate, standard legal practice.

If a parent or legal guardian believes the appointed hearing officer has a personal or professional conflict or bias, the parent or legal guardian should notify the hearing officer of his or her objection to the appointment. The notification must be in writing.

If the parent or legal guardian files the due process complaint, there is a 30-day resolution period. What this means is that within 15 calendar days of receiving or filing the complaint, the LEA must convene a resolution meeting (unless the parties agree to use mediation or waive the resolution meeting). Relevant members of the IEP team should attend the resolution meeting. An attorney of the LEA may not attend the resolution meeting unless the parent is accompanied by an attorney.

The purpose of the meeting is to give the parties the opportunity to resolve the issues in the due process complaint without holding a due process hearing. If the parties are not able to reach an agreement in the first meeting, the parties can continue meeting and working to resolve the issues during the remainder of the 30-calendar day resolution period. Discussions conducted during the resolution meeting must be kept confidential. A resolution meeting is encouraged but is not required if the LEA requests the hearing. 

If an agreement is reached during the resolution period the parties shall execute a legally-binding written agreement. The parent and a representative of the LEA, who has the authority to bind the LEA, must sign the agreement. The parties have 3 business days after signing the agreement to back out of the agreement. When a party wants to back out of the agreement the party must notify the other party and the SCDE in writing of the intent to void the resolution agreement. If the resolution agreement is not voided by either party within 3 business days after the agreement is signed, the due process complaint is dismissed.

If the parties are not able to reach a written agreement during the 30-day resolution period, the parties proceed to a due process hearing where an impartial, trained hearing officer hears the evidence and issues a hearing decision. The hearing must be conducted and a decision issued within 45 calendar days after the end of the 30-day resolution period. 

If, after the first resolution meeting but prior to the end of the 30-day resolution period, the parties are not able to resolve the issues in the due process hearing request, the parties can provide a signed and dated, written statement to the hearing officer that no written agreement is possible. When this happens the 45-calendar day timeline to conduct the hearing and issue a written decision starts the day after the parties agree in writing that no resolution is possible.

If the LEA is unable to get the parent to participate in the resolution meeting after reasonable efforts, the LEA may ask the due process hearing officer to dismiss the parent’s request for a hearing at the end of the 15-calendar day resolution period. 

During this hearing, each party has the opportunity to present their views in a formal legal setting, using witnesses, testimony, documents, and legal arguments that they believe are important for the hearing officer to consider. Since the due process hearing is a legal proceeding, a party will often choose to be represented by an attorney.

The hearing will be conducted at a time, date, and location reasonably convenient to the parents and student involved. The parties have the right to

• be accompanied and advised by counsel and by individuals with special knowledge or training with respect to the problems of students with disabilities;
• present evidence and confront, cross examine, and compel the attendance of witnesses by asking the hearing officer to issue subpoenas for potential witnesses when necessary;
• prohibit the introduction of any evidence that has not been disclosed to that party at least 5 calendar days prior to the hearing;
• obtain a written transcript, or at the option of the parents, electronic verbatim transcript–of the findings of fact and the decisions made at the hearing (at no cost to the parents); and
• obtain written, or at the option of the parents, electronic findings of facts and decisions (at no cost to the parents).

Parents and legal guardians have the right to have the student, who is the subject of the hearing, present during the hearings. Parents and legal guardians also have the right to open the hearing to the public; otherwise, hearings will be closed.

Not less than 5 business days prior to the due process hearing, all completed evaluations and resulting recommendations that each party intends to use at the due process hearing and witness lists must be provided to the other party.

Within 45 calendar days of the resolution period expiring, a final written decision must be reached in the hearing and a copy of that decision provided to each of the parties, unless the hearing officer grants a specific extension of this time period at the request of either party. Hearing officers may only grant extensions for exceptional circumstances. The 45-day timeline includes days when schools are closed due to scheduled breaks, holidays, professional development and other reasons.

The decision must include notice of the right to appeal the decision to the SCDE, OGC within 10 calendar days of the receipt of the hearing decision. The party filing the appeal must also provide the opposing party a copy of the notice of appeal.

An expedited due process hearing is a hearing involving a due process complaint about a disciplinary matter. A party may file a request for an expedited hearing when the

• parent or legal guardian disagrees with the LEA’s decision about placement for disciplinary removals;
• parent or legal guardian disagrees with the manifestation determination and whether the child’s behavior is related to his or her disability; and/or
• LEA believes that maintaining the child’s current placement is substantially likely to result in injury to the child or to others

The SCDE has a form that a party may use to file an expedited due process complaint, but use of the form is not required. The party requesting the expedited due process hearing must provide a copy of the complaint to the other party and forward a copy to the SCDE, OGC. The complaint must include the following specific information:

• The name of the child, 
• The address of the residence of the child, 
• The name of the school the child is attending, 
• In the case of a homeless child or youth (within the meaning of Section 725(2) of the McKinney-Vento Homeless Assistance Act (42 U.S.C. 11434(a)(2)), available contact information for the child, and the name of the school the child is attending;
• Description of the nature of the problem of the child relating to the proposed or refused initiation or change, including facts related to the problem, and 
• A proposed resolution of the problem to the extent known and available to the party at the time.

The resolution meeting related to the expedited due process hearing timeline must occur within 7 calendar days of the LEA filing or receiving the expedited due process complaint (unless the parents and the LEA agree in writing to waive the resolution meeting, or agree to use the mediation process). If the parties are not able to reach an agreement in the first meeting, the parties may continue meeting and working to resolve the issues during the remainder of the 15-calendar day expedited due process complaint resolution period. 

The due process hearing may proceed unless the matter has been resolved to the satisfaction of both parties within 15 calendar days of the receipt of the expedited due process complaint. While there is no provision in the IDEA statute or regulations that permits extensions of the 15-calendar day resolution period for expedited due process complaints, the parties are not prohibited from continuing efforts to settle their disagreement prior to the hearing.

The sufficiency challenge provisions in the IDEA do not apply to expedited due process complaints. If the LEA receives an expedited due process hearing complaint that does not include disciplinary related issues, the LEA may ask the hearing officer to change the hearing request to a regular due process hearing that is required to comply with the regular timelines under the IDEA.

The requirement that the LEA provide the parent a copy of the procedural safeguards notice that includes a full explanation of rights is the same as the requirement related to a due process complaint under the regular timelines.

The timelines and other requirements for issuing a written response to the issues in the expedited due process hearing complaint are the same as the requirements related to a due process complaint under the regular timelines. 

Within 10 calendar days of receiving the due process hearing complaint, the LEA must provide the parent and the SCDE written notice of the hearing officer’s appointment. The minimum requirements for the hearing officer are the same as the regular due process hearing process.

An expedited due process hearing must take place within 20 school days of the date that the due process complaint is filed or received by the LEA. The 20-school day timeline for conducting the expedited due process hearing starts when the expedited due process complaint is filed or received by the LEA and runs at the same time as the resolution period and timelines for the appointment of the hearing officer and the issuance of a written response. The hearing officer must make a written determination within 10 school days after the hearing.  

The hearing officer may

• return the child to the placement from which the child was removed if the hearing officer determines that the removal was a violation of § 300.530 or that the child’s behavior was a manifestation of his or her disability; or
• order a change of placement of the child to an appropriate interim alternative educational setting (IAES) for not more than 45 school days if the hearing officer determines that maintaining the current placement of the child is substantially likely to result in injury to the child or to others.

The LEA may file another expedited due process hearing complaint if the LEA believes that returning the child to the original placement is substantially likely to result in injury to the child or to others.

There is no provision in the Part B regulations that gives a hearing officer conducting an expedited due process hearing the authority to extend the timeline for issuing a written decision from an expedited due process hearing.

The decision must include notice of the right to appeal the decision to the SCDE, OGC within 10-calendar days of the receipt of the hearing decision. The party filing the appeal must also provide the opposing party a copy of the notice of appeal.

Under the IDEA regulations at 34 CFR § 300.11(a), day means calendar day, unless otherwise indicated as business day or school day. The regulations defines school day as “any day, including a partial day that children are in attendance at school for instructional purposes.” Any day that children without disabilities are not in school, including summer breaks, is not counted as a school day, and is not considered in calculating the expedited due process hearing timelines.

If either party does not like the hearing officer’s decision from the first-tier due process hearing, within 10 calendar days of receiving the written decision, the party has a right to file an appeal with the SCDE and the opposing party. The state-level appeal is the second tier in South Carolina’s due process hearing system. 

Upon receipt of a written request to appeal a due process hearing officer’s decision from the first tier, the SCDE is responsible for appointing the state-level administrative review officer. The requirement to appeal a decision from the first tier is the same for decisions related to a regular or expedited due process complaint. The SCDE will provide the parties notice of the name and contact information for the state-level review officer and notice of the 30-calendar day timeline for the issuance of a decision in the matter. 

The appeal shall include an explanation of the specific points the party is raising on appeal. If a parent is unable to communicate through written notice, the party may contact the SCDE, OGC for assistance.

The LEA is responsible for making sure the parent and the state-level review officer receive an electronic verbatim or a written transcript from the local hearing along with copies of all items entered as evidence at no cost to the parent. The appointed state-level review officer must 

• examine the entire hearing record;
• ensure that the procedures at the local due process hearing were consistent with the requirements set forth in federal and state law;
• seek additional evidence if necessary;
• afford the parties an opportunity for oral or written argument, or both, at the administrative review officer’s discretion. Each review involving oral arguments shall be conducted at a time and place that is reasonably convenient to the parents and student involved;
• make an independent decision upon completion of the state-level review;
• issue a copy of the written, or at the option of the parents, electronic findings of fact and decision to the parties within 30 calendar days after the SCDE received the request for the appeal; and
• notify the parties that the decision of the state-level review hearing officer is binding on all parties, unless an appeal is filed within 90 calendar days from the date of the decision of the state-level review officer. Such an action may be brought in any state court of competent jurisdiction or in a district court of the United States without regard to the amount in controversy.

Except for situations involving a disagreement related to disciplinary changes in placement manifestation determinations, and/or when an LEA believes that maintaining the current placement of the child is substantially likely to result in injury to the child or others and either the parent or the LEA has requested an expedited due process hearing, the child must remain in the interim alternative educational setting pending the decision of the hearing officer or until the expiration of the time period specified in §300.530(c) or (g), whichever occurs first. 

Otherwise, the child must remain in his or her current educational placement, which is the child’s placement prior to the proposed change in placement as long as the due process complaint is filed prior to the implementation of the proposed placement. The parties may, however, agree to a different placement while waiting for the decision of an impartial due process hearing or court proceeding.