Special Education - Part 6: Due Process and Dispute Resolution

Part 1 – Legal Overview
Part 2 – Referals and Assesments
Part 3 – Individualized Education Program (IEP) Meetings
Part 4 – Signing and Writing on the IEP Document
Part 5 – Related Services
Part 6 – Due Process and Dispute Resolution
Part 7 – Compliance Complaints

Due Process Request, Resolution Session and Mediation.
1. Both parents and school district may request a Due Process hearing: A hearing may be requested by a written request to the Office of Administrative (“OAH”) via mail to 1102 Q Street, Sacramento, CA 958814, or by fax: (916) 322-8014. The request should include the following information:

1. The Student’s name
2. The Student’s date of birth
3. The Student’s grade level
4. The Student’s address
5. The Student’s attending school district
6. The Student’s residing school district (if different).
7. The Parent or legal guardian’s name, address, and telephone number
8. Any other school districts or public agencies (e.g. County Mental Health, California Children’s Services) that is responsible for providing services that should be a party to this matter.
9. A brief explanation of why the hearing is being requested.
10. A proposed resolution of the disagreement.

• If a parent refuses to consent to placement and services, district need not file for due process and cannot subsequently be held to have denied a FAPE.
• IDEIA 2004 provides that a party filing for due process shall not be allowed to raise issues at the hearing that were not raised in the complaint unless the other side agrees.
• The due process complaint must be sent to opposing party.

2. Objections to the Due Process Complaint

1. Within 15 days of receipt of the complaint, party against whom the complaint is filed may file with OAH an objection that the complaint is not sufficient.

2. The OAH will make a determination of sufficiency within 5 days of receipt of insufficiency challenge.
3. If the due process complaint is not sufficient, OAH may grant permission to amend the complaint.

2. After filing a due process complaint, OAH provides a 30 day period so the parties may resolve before OAH retains jurisdiction over the case.

4.Resolution Session

1. Within 15 days of filing the due process complaint, the school district must hold a resolution session. The resolution session must include members of the IEP team who have knowledge of the facts identified in the complaint and a representative of the school district with decision making authority.
2. The resolution session may be waived in writing if all parties agree.
3. The school district may not have an attorney present, unless the parents are represented by an attorney.
4. If the matter is resolved at the resolution meeting, a legally binding settlement agreement will be executed. This agreement could be voided by any party within three business days from the date it was signed.

5. Mediations: Mediations are voluntary. The purpose of mediation is to encourage communication between both parties (parents and the school district). The mediator does not make any decisions, but facilitates communication and helps to settle all issues between the parties. Mediations usually occur at your local school district office. Any discussions during the mediation process are confidential and may not be used as evidence in a later Due Process hearing or civil case.

6. Due Process hearings: Due process hearings are conducted by Administrative Law Judges employed by OAH. Due process hearings are more formal like civil proceedings where a written decision will be issued concerning the case.

1. Timelines: At least five (5) BUSINESS days prior to the first day of hearing, both parties must disclose all evidence intended to be presented and a list of proposed witnesses to testify at the hearing.
2. Hearing Rights: Parents have the following rights in a due process hearing:
   
1. To be represented by an attorney; NOTE: If your case goes to hearing, it is in your best interests to have representation. It is most probable that the school district will have representation.
2. To present evidence;
3. To present and cross examine witnesses;
4. To subpoena witnesses;
5. To an interpreter;
6. To a public or open hearing;
7. To receive a written final decision;
8. To receive a written and/or electronic record of the hearing.
3. Appealing the Hearing Officer’s final decision: If you do not prevail at hearing, Parents have the right to appeal the hearing officer’s decision by filing a civil action in federal or state court.

7. Expedited hearings: Expedited hearings are generally required when the dispute is related to discipline, such as a proposal to expel a child. An expedited hearing will generally be scheduled on approximately twenty (20) days after the request for hearing is received.

8. Your child’s educational placement during due process: Your child will remain in the “last agreed” upon or present educational placement during the hearing process. This requirement is referred to as the “Stay-Put” provision.

Example: Your child is placed in a regular education classroom. At the last IEP meeting, the school district agreed with this placement. However, now the school district is trying to place your child in a special day class. Once you request a due process hearing, your child will remain in the regular education classroom until a final decision is made by a Hearing Officer at the Due Process hearing.

1. If your child’s last agreed upon placement no longer exists, the district must provide a placement that is “very similar” to the last agreed upon.

9. Attorney fees: The federal or state court has the authority to award attorney fees if the parent was the prevailing party in a due process hearing. The fees awarded are based on the rates prevailing in the community in which the hearing arose.