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Tuesday, June 23, 2020

Due Process During COVID

In The Politics of Autism, I write about IEPs and FAPE. The Supreme Court ruled in Endrew F. v. Douglas County School District that the Individuals with Disabilities Education Act (IDEA) requires public schools to provide heightened educational benefits to students with disabilities.

The Office of Special Education Programs (OSEP), within the U.S. Department of Education’s (Department) Office of Special Education and Rehabilitative Services, issues this Question and Answer (Q & A) document in response to inquiries concerning implementation of the Individuals with Disabilities Education Act (IDEA) Part B dispute resolution procedures in the current COVID-19 environment. This Q & A document does not impose any additional requirements beyond those included in applicable law and regulations. It does not create or confer any rights for or on any person. The responses presented in this document generally constitute informal guidance representing the interpretation of the Department of the applicable statutory or regulatory requirements in the context of the specific facts presented here and are not legally binding and does not establish a policy or rule that would apply in all circumstances. To review other Q & A documents that OSEP has provided related to COVID-19, please visit Additional information specific to the COVID-19 pandemic may be found online at

Q6. May due process hearings be conducted virtually when schools and other public facilities are closed or have restrictions that prevent face-to-face meetings? 
Yes. A State could permit hearings on due process complaints to be conducted through video conferences or conference calls, if a hearing officer concludes that such procedures are consistent with legal practice in the State. 34 C.F.R. § 300.511(c)(1)(iii). A hearing conducted virtually must ensure a parent’s right to an impartial due process hearing consistent with all requirements in 34 C.F.R. §§ 300.511 through 300.515. If applicable, a State-level review can be conducted virtually if consistent with State procedures. 
Q7. Do hearing officers, or where applicable, reviewing officers, have the authority to extend the applicable timelines for issuing decisions on due process complaints during the pandemic? 
Yes. IDEA permits a hearing officer or a reviewing officer to grant specific extensions of timelines at the request of either party to the hearing or review. 34 C.F.R. § 300.515(c); see 34 C.F.R. § 300.515(a)-(b) for applicable timelines. There is no IDEA requirement that both parties agree to the extension request, but the hearing officer or reviewing officer must document the length of the extension and the reason it was provided. While a hearing or State-level review of an expedited due process complaint may be conducted through video conferences or conference calls if consistent with legal practice in the State, IDEA makes no similar provision for extending relevant timelines for hearings or reviews in the context of expedited due process complaints