In 2005, the United State Supreme Court changed the burden of persuasion, one element of the burden of proof, in due process hearings. In Schaffer v. Weast, 546 U.S 49 (2005), the Court held that the burden of persuasion in an administrative proceeding challenging an IEP, is properly placed upon the party seeking relief. In other words, the party who requests the due process hearing has the responsibility to introduce preponderant evidence of his or her position, which did not address which party has the burden of moving forward with the evidence or, simply stated, going first. The Court, however, limited the practical application of this rule to those cases where the evidence on both sides is nearly evenly balanced (“equipoise”), in which case the rule applies. In most cases, one or the other party has usually presented “preponderant evidence”, i.e. more convincing evidence than that of the other party, and the rule therefore does not come into play. The burden of proof is usually on the parents, who file for a due process hearing most of the time, although they are at an informational disadvantage as the child's educational records are being held by the school, who may be sanitizing the files, or otherwise withholding records as long as allowed (45 days from date written request received).
Within seven (7) days of the request for a hearing, a resolution session/meeting must occur, and the hearing may proceed unless the matter has been resolved to the satisfaction of both parties within fifteen (15) days of receipt of the hearing request.
All expedited due process hearings must occur within twenty (20) school days after the initial request for a hearing.
A Hearing Officer must make a determination within ten (10) school days after the hearing.
Placement continues in the interim alternative educational setting pending the Hearing Officer Decision or until the expiration of the time period of removal, which is no more than forty-five (45) school days.
For IDEA claims, the decision should be written within forty-five (45) days of commencement of the applicable time period (i.e. after expiration of the thirty-day (30) period after due process is requested, or after expiration of the thirty-day (30) period after the amended Due Process Complaint Notice is filed) unless extensions have been granted. For all other decisions, the decision should be written and mailed no later than forty-five (45) calendar days after the request for the hearing unless extensions have been granted.
When a decision cannot be written and mailed within the required time period, it must be written and mailed within fifteen (15) calendar days of the close of the record
If the Hearing Officer permits the parties to file written closing statements, the fifteen (15) day time frame will commence after the Hearing Officer has received the final transcript, the written closing statement, or the time frame for accepting written closing statements has passed. The record is then considered to be closed. The Hearing Officer determines the date that the record is closed.
Representation at Hearing
Parents may be represented by legal counsel and accompanied and advised by individuals with special knowledge or training with respect to students who are gifted.
Access to Records
A parent or a parent’s representative shall be given access to educational records, including any tests or reports upon which the proposed action is based. These records include electronic files including e-mail messages, and their metadata. The refusal or failure of the school district to permit access to these records are a basis to challenge the content of the student’s education records at a hearing. 20 USCS §§1232g. Counsel for the school district may take up to forty-five days after the request is made to comply, so long as that amount of time is reasonable; however, should they engage in any act to destroy or otherwise redact records properly requested under the Family Educational Rights and Privacy Act (FERPA) they will have placed themselves in ethical jeopardy and/or as a witness in the subsequent proceedings.