Appendix D: Frequently Asked Questions (FAQs)
Mediation and Due Process
14. Question: Are parents entitled to a free attorney?
Answer: All parties have the right to be represented at all stages of the hearing by an attorney or other representative of their choosing. That does not mean that the school or other public agency must pay for the parents’ attorney. Parents may be entitled to hav e the cost of the attorney’s fees reimbursed if they prevail as a consequence of initiating a due process hearing. The federal court, in its discretion, may award reasonable attorney’s fees to the parents or guardian of a disabled child or youth who is the prevailing party.
15. Question: Must a party give notice to the other parties if the party plans on using an attorney?
Answer: Yes. The law requires that a party notify all other parties ten (10) days before a hearing if that party intends to be represented by an attorney in the hearing.
16. Question: What happens during the hearing?
Answer: The purpose of the hearing is to allow all parties to present evidence supporting their positions and to explain to the hearing officer why they believe they should prevail in the hearing. The hearing is not governed by formal rules of procedure or evidence, and the hearing officer will attempt to ensure that both sides have an adequate opportunity to present their cases. Although less formal than a court trial, the hearing is expected to proceed in an orderly fashion. At the beginning of the hearing, the hearing officer turns on the tape recorder to make a record of the hearing and, after identifying the case for the record, briefly explains how the hearing will proceed. The hearing officer then usually clarifies the issues to be decided by discussing the case with the parties. The hearing officer may only speak with the parties about the case on the record. All other communication with the parties is prohibited. Once these preliminary matters are completed, the parties are given a chance to make opening statements. After the opening statements, the side presenting first will call its witnesses, with each witness being sworn to tell the truth. After one side has presented its witnesses and other evidence, the other side will call its witnesses. Each side will be given an opportunity to ask questions of the other side’s witnesses, and the hearing office may also ask questions of the witnesses. At the end of the hearing, each side is allowed to make a closing statement. Sometimes the statement is presented orally during the hearing and sometimes it is submitted in writing after the hearing. After closing statements, the hearing record is closed. The hearing officer then prepares a written decision.
17. Question: How are documents put into evidence?
BP 1001 – Procedural Safeguards
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Desert Mountain Special Education Local Plan Area (DMSELPA) (rev. 03/13)
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