- All publicly funded programs have due process rights attached. If there is public money involved in a program, then applicants and participants have the right to appeal if they do not agree with the program decisions. To be effective in accessing due process, one must follow the due process rules set out in each system (e.g., special education, Social Security, vocational rehabilitation, etc).
- Due process rules for each system are unique. In comparing systems, we can see that they vary in the following ways:
- Timelines (How long one has to initiate an appeal or due process – as well as timelines for steps within the appeal).
- How and when evidence may be introduced
- Example: Multiple copies of evidence may be required for hearing officers and other parties involved in the hearing. Any evidence and/or witnesses to be presented at a special education hearing must be disclosed within a certain amount of days prior to the hearing date to both the hearing officers and to the opposing side.
- Example: In some systems, new items of evidence may not be introduced beyond the initial hearing level. This means that no new evidence may be introduced at appeal levels. Although some systems allow new evidence to be introduced even in the later stages of the appeal process, this approach is not typical. It is more common that appeals are reviews of the evidence presented at the hearing level, and no further new evidence can be introduced.
- If an individual is representing himself, or has legal counsel, this will sometimes create differences from system to system.
- Some due process practices are much more informal than others. However, this does not mean that there are no rules in systems that are less formal. There are written rules for due process in each system and they must be observed.
- Example: Hearings are less formal than a court proceeding, but in each case there is a prescribed method for how the proceeding is conducted; whether or not an opening or closing statement is permitted; how witnesses and evidence are introduced; and whether or not the whole proceeding can be opened for the public to attend.
- Applicants and recipients of services should be given a written copy of their due process rights when they first enter each system. If you aren’t given one – ask for it.
NOTE: These examples are not the only differences among due process systems. Rather, this sampling is intended to give you some idea of the types of variations that exist. The important thing is to be aware that due process does vary from system to system and you must follow those rules and timelines for the particular system you are using.
- The party requesting a hearing or appeal generally has the right to review all records related to his/her own case. This is a good idea to do, because it allows you to see all documentation that the opposing side might present to support their position.
- Be prepared for some hard work and some waiting. Due process requires observance of certain timelines and careful preparation of the evidence that is being presented. There are no “quick fixes” or “overnight remedies.”
- Administrative due processes (e.g., hearings before hearing officers) must be exhausted before an appeal on the issue can be filed as a court case. This means that when administrative hearings are available to consider appeals, they must be used in an effort to resolve the problem. One cannot go to court until administrative hearings have been tried and still failed to produce a satisfactory outcome.
- Due process procedures are meant to provide an objective consideration of the facts by an unbiased hearing officer or administrative law judge. The unbiased hearing officer then produces a decision that is based on evidence or applicable law or regulation. This means that different viewpoints held by the parties will be explored and considered. It does not guarantee that the person making the appeal will get what he/she wants, only that he/she will be given an opportunity to present his/her facts and viewpoints for an objective view.