Requesting an Early Intervention Due Process Hearing

The Department of Public Health (DPH) Early Intervention Division as the Lead Agency for Massachusetts Early Intervention adopts the Due process hearing ,procedures under 34 CFR 303.435-303.438 (section 639 of the Individuals with Disabilities Education Act (IDEA)) to resolve disputes regarding a specific infant or toddler with a disability and the child’s family. Due process hearings under Part C IDEA are administrative dispute resolution proceedings and are separate from Formal Administrative Complaint investigations.

A due process hearing is a formal proceeding in which a hearing officer decides a dispute between a parent and an early intervention services program. The disagreement may be related to a child’s identification, evaluation, assessment, eligibility determination, Individualized Family Service Plan (IFSP), or the provision of appropriate early intervention services. The decision is based on the arguments, testimony, and evidence presented by both sides. A due process hearing is at no cost to a family.

In Massachusetts, only a parent can request a due process hearing.

A request for due process hearing can be made to the Early Intervention Division by email, postal mail, or fax. An optional Due Process Request Form is available but not required. In your request, we ask for your name and contact information, the party or parties involved and their contact information, and the general nature of your concerns.

The Early Intervention Division arranges for the conduct of due process hearings through an interagency agreement with the Division of Administrative Law Appeals (DALA) and the Bureau of Special Education (BSEA). The Early Intervention Division retains responsibility for ensuring mediations are conducted in accordance with Part C of IDEA and 34 CFR 303.435-303.438. The use of an interagency agreement does not transfer the DPH’s legal authority, procedural safeguards responsibility, or timelines under Part C.

Once a due process complaint is received, the Early Intervention Division notifies the Bureau of Special Education Appeals (BSEA), and appoints an impartial hearing officer who:

• is knowledgeable about Part C and early intervention services
• is not employed by the Early Intervention Division or the early intervention services program involved in the child’s services
• has no personal or professional interest that conflicts with objectivity

Hearing officers assigned through the BSEA receive training from the Early Intervention Division regarding early intervention law, policies, and procedures, and conduct hearings under DPH’s authority.

The Massachusetts Early Intervention Operational Standards (EIOS) set the filing timeline at no more than 2 years from the date the issues identified in the hearing request were identified.   

The hearing officer schedules the hearing at a time and place that is reasonably convenient for the parents, listens to the presentation of relevant viewpoints, examines all relevant information, and issues a decision. The purpose of the hearing is to determine whether the infant or toddler and family received early intervention services in accordance with Part C of IDEA and the Massachusetts Operational Standards.

The Early Intervention Division ensures that the hearing is completed, and a written decision is issued within 30 calendar days of receiving the due process complaint, although the hearing officer may grant a specific extension upon request of either party.

During a due process hearing, parents have the right to:

• be accompanied by an attorney, advocate, or anyone else at the hearing
• present evidence, call and cross-examine witnesses,
• not allow evidence to be heard that was not given to the parent at least five days before the hearing
• receive a written or electronic transcript of the hearing. Parents have the right to have an attorney, advocate, or anyone else at the hearing.   

The Early Intervention Division will provide parents with a list of free or low-cost advocates and attorneys.

Unless the public agency and parents agree otherwise, or if the child is transitioning from early intervention services to preschool services under Part B of the IDEA, the child must continue to receive the appropriate early intervention services in the setting identified in the IFSP for which the parent had previously provided consent during the hearing process. If the dispute concerns initial services, the child will receive those services that are not in dispute.

The hearing officer will send a written decision within 30 calendar days of the Early Intervention Division receiving the written request for a hearing, unless an extension is granted. If parents do not agree with the hearing officer’s decision, it is appealable in state or federal court if filed within ninety days of the decision.   

Mediation can be requested at any time during the hearing process. The filing of a due process complaint does not prevent the filing of a Formal Administrative Complaint addressing separate allegations of legal violations.

Some examples of when a Due process hearing is an appropriate option (not limited to) 

• You disagree with the results of your child’s evaluation regarding their eligibility for Part C.
• You believe the Individualized Family Service Plan (IFSP) does not meet your child’s or family’s needs.
• You believe the services included in your child’s IFSP are not being provided. 
• You disagree with the setting where your child’s receives EI services are delivered.
• If you and the EI program do not agree about the type(s) of EI services or how often the services(s) are provided.
• If the EI program includes information in your child’s record that you believe is inaccurate or misleading.
• There is a disagreement about the child’s eligibility for EI services.
• There is a disagreement about the type(s) of EI services or how often the services(s) are provided.
• Disagreements about procedural or timeline issues if they relate to providing appropriate services.
• The EI program includes information in your child’s record that you believe is inaccurate or misleading.   

Early Intervention Dispute Resolution materials