Once the resolution period ends, either party may request that the matter be set for hearing. Due process hearings are generally scheduled over the course of several days depending on the complexity of the matter and the quantity of issues, evidence, and witnesses involved. The hearing dates will be selected during a pre-hearing telephone conference, after which the ALJ will typically issue a scheduling order that establishes deadlines for filing a pre-hearing statement (as well as the content required in that statement) and the exchange of witness lists and hearing exhibits.1 All evidence and exhibits to be used at the hearing must be disclosed no later than 5 business days before the hearing.2
At the due process hearing, both parties have the right to be accompanied by legal counsel or individuals with special knowledge or training with respect to the education of students with disabilities.3 Each party has the right to present evidence and confront, cross-examine, and compel the attendance of witnesses.4 Unless otherwise specified in special education regulations, the hearing will be conducted according to the Division of Administrative Law Rules.5 As with other administrative hearings, hearsay is admissible.6 The burden of proof at a due process hearing is on the party seeking relief, which is usually the parent.7 After the hearing, parents may obtain a written or electronic verbatim record of the hearing and the findings of fact and decisions at no cost.8 A copy of the hearing decision will be mailed to each party by the original or extended timeline.9
If the due process hearing decision contains findings that the LEA violated a student’s right to FAPE, the ALJ may order the LEA to provide appropriate relief, including the provision of compensatory education and services. Compensatory education is an equitable remedy designed to rectify “an educational deficit created by an educational agency’s failure over a given period of time to provide a FAPE to a student.”10 An LEA must provide compensatory education in the amount and form necessary to place special education students deprived of FAPE “in the position they would have been in but for the violation of the Act.”11 Other typical remedies available through a due process hearing include reimbursement for out-of-pocket expenses by the parents for services that should have been provided by the LEA, changes to the IEP in a manner required for FAPE, and orders to implement the IEP or cease illegal practices being experienced by the student.
A parent who prevails at a due process hearing may apply to a court for reasonable attorneys’ fees as part of the costs of due process litigation.12 Attorneys’ fees could also be awarded to the LEA against the attorney when a parent requests a hearing for an improper purpose; when the request is frivolous, unreasonable, or without foundation; or when the attorney continues to litigate after the litigation clearly becomes so.13 Attorneys’ fees associated with the due process litigation will be awarded based on rates prevailing in the community for the kind and quality of services provided.14 Attorneys’ fees may not be awarded for any services performed subsequent to a written offer of settlement to the parent made at least 10 days before the hearing if the relief ultimately obtained by the parent is not more favorable than the offer of settlement.15
- 1La. Bulletin 1706 § 511(I).
- 2Id. § 512(A)(3), (B)(1).
- 3Id. § 512(A)(1).
- 4Id. § 512(A)(2).
- 5See Division of Administrative Law Rules, LAC 1:III.101, et seq.
- 6See La. Household Goods Carriers v. La. PSC, 99-3184 (La. 06/30/00), 762 So. 2d 1081.
- 7La. Bulletin 1706 § 511(J).
- 8Id. § 512(A)(4)–(5).
- 9Id. § 515(A).
- 10Reid ex rel. Reid v. District of Columbia, 401 F.3d 516, 523 (D.C. Cir. 2005).
- 11Spring Branch Indep. Sch. Dist. v. O.W., 961 F.3d 781, 800 (5th Cir. 2020) (citing Reid, 401 F.3d at 518).
- 12La. Bulletin 1706 § 517(A).
- 13Id. § 517(A)(1)(b)–(c).
- 14Id. § 517(C).
- 15Id. § 517(C)(2).