What happens at an Illinois special-education due-process hearing

Who can file for due process in Illinois?

A parent, a student who is 18 or older or emancipated, or a school district can request a hearing. Parents usually file over disputes about identification, evaluation, placement or the services needed for a free appropriate public education (FAPE). ISBE notes that districts file only in limited situations, such as to defend their evaluation after a parent requests an independent evaluation, or to seek a temporary removal because of dangerous behavior.

This is general information, not legal advice. Due process is a legal proceeding, and many parents get help from an attorney or from Equip for Equality.

How do I request a due process hearing?

A parent's request must be in writing and sent to the superintendent of the district where the student lives. The superintendent must forward it to ISBE within 5 days. ISBE's Form 19-86A (Parent Request for an Impartial Due Process Hearing Officer) covers what the law requires, but any written request with the required information works.

• Your child's name, home address and school (or contact information if your child is homeless).
• A description of the problem, with the facts.
• A proposed resolution, to the extent you know it.
• File within 2 years of the date you knew or should have known about the problem.

What happens after I file?

1. ISBE appoints a hearing officer within 3 days using a rotating system. Each side may substitute the hearing officer once.
2. Within 15 days, the other side may challenge whether the request is sufficient. The hearing officer rules within 5 days. You may amend your request once as a matter of right within 5 days of filing.
3. Within 15 days of receiving your request, the district must hold a resolution meeting with you, relevant IEP team members and someone with decision-making authority. The district cannot bring its attorney unless you bring one.
4. The resolution period lasts up to 30 days. Any agreement is written, signed and enforceable in court. Both sides can agree in writing to skip the meeting or to use mediation instead.
5. If the dispute is not resolved, the 45-day hearing timeline starts. The hearing officer holds a prehearing conference at least 14 days before the hearing.
6. Each side must share its evidence at least 5 days before the hearing. Evidence not shared in time can be excluded.
7. The hearing is held. The written decision is due within 10 calendar days (excluding weekends and state holidays) after the hearing ends, and no later than 45 days after the timeline started unless the hearing officer grants an extension at a party's request.

What happens at the hearing itself?

The hearing is closed to the public unless you ask for it to be open, and you have the right to have your child present. Each side can have a lawyer and people with special knowledge about children with disabilities, present evidence, and question witnesses. Parties are expected to present their cases within a total of 7 days, and the last hearing day should be no more than 30 calendar days after the first unless there is good cause.

Under Illinois law, the school district must present evidence that your child's special education needs were properly identified and that the program and services it proposed are adequate, appropriate and available. The hearing officer issues written findings of fact and conclusions of law, and the decision can order specific services and a timeline for the district to show compliance.

What is stay-put?

While a hearing or appeal is pending, your child stays in the current educational placement and keeps current services unless you and the district agree otherwise. If mediation fails or a side declines mediation, you have 10 days to file for due process to keep stay-put protection.

Can I get my attorney's fees paid?

Under federal law (34 CFR 300.517), a court may award reasonable attorney's fees to a parent who is the prevailing party. Fees can be limited in some situations, for example if you turned down a written settlement offer and did not end up doing better, unless you were substantially justified. Illinois law also makes a district liable for a parent's reasonable attorney's fees when it willfully disregards the law in a way that harms the child.

How do I appeal a hearing officer's decision?

Either side can file a civil action in state or federal court. In Illinois, the deadline is 120 days after the decision is mailed (105 ILCS 5/14-8.02a(i)). The court reviews the hearing record, can hear additional evidence, and decides based on the preponderance of the evidence.

What are the alternatives to due process?

ISBE offers three other options, all at no cost to families. You can use them before, or sometimes alongside, a due process request.

• State-sponsored IEP facilitation: a neutral facilitator runs an IEP meeting to help the team reach agreement. Both sides must agree to use it.
• State-sponsored mediation: a trained mediator helps both sides reach a written agreement that is legally binding and enforceable in court. It is voluntary and available any time there is a disagreement.
• State complaint: any person or organization can file a signed written complaint with ISBE alleging a violation that happened within the past year. ISBE has 60 days to investigate and issue a written decision, with extensions allowed in exceptional circumstances.