On April 15, 2015, the Office for Special Education Programs (OSEP) within the U.S. Department of Education issued a Dear Colleague Letter regarding the interaction between the due process hearing system and the state complaint resolution process under the Individuals with Disabilities Education Act (IDEA), which are two mechanisms available to address special education disputes between parents and school districts. While parties may file both a state complaint and a due process complaint on the same issues, state educational agencies (in Connecticut, the State Department of Education) must hold aside any issues contained within a state complaint that are also issues in a pending due process hearing until the conclusion of the hearing. OSEP expressed concern that some school districts may be filing for due process on the same issues after a parent has filed a state complaint in an effort to prevent or delay the state complaint resolution process from moving forward. According to OSEP, this action potentially could force parents into the more time-consuming, complex, expensive, and adversarial due process system, which parents may have sought to avoid. Based on these concerns, OSEP urged school districts to refrain from such a practice and expressed its “strong[ ] belie[f] that it is in the best interest of parents and school districts to respect parents’ choice of forum for resolution of their disputes.”
OSEP provided no data on the prevalence of due process requests and state complaints being filed with overlapping issues. Nor did OSEP consider whether there may be legitimate reasons why a party may prefer that an issue or dispute be decided through a due process hearing where parties may present live testimony and cross-examine witnesses and an impartial hearing officer can make credibility determinations. As a general matter, however, the IDEA envisions collaboration between schools and parents and the resolution of disputes in an amicable and informal manner to the extent possible. Therefore, OSEP’s opinion that school districts should not file for due process solely to force a parent into a lengthier and more costly process in order to avoid or delay the resolution of a state complaint is reasonable. School districts should carefully consider the merits of filing for due process on the same issues raised in a state complaint filed by parents both to respect the forum for dispute resolution chosen by parents, but also because it often will be to the school district’s advantage to have a less expensive and quicker resolution of disputed issues.