|SPECIAL EDUCATION RIGHTS AND RESPONSIBILITIES|
Information on Due Process Hearings/Compliance Complaints
From a 12-Chapter Manual - Available by Chapter and in Manual Form
Community Alliance for Special Education (CASE) and
Protection & Advocacy, Inc. (PAI)
Copyright © 1992 by CASE and PAI - Revised January 1998
Written permission of the Community Alliance for Special Education (CASE) and Protection and Advocacy, Inc. (PAI) must be obtained for duplication of the materials contained in Special Education Rights and Responsibilities.
These materials are based on special education laws and court decisions in effect at the time of publication. Federal and state special education law can change at any time. If there is any question about the continued validity of any information in the handbook, contact CASE, PAI or a legal authority in your community.
Community Alliance for Special Education (CASE), provides legal support, representation, technical assistance consultations, and training to parents throughout the greater San Francisco Bay Area whose children need appropriate special education services. Trained advocates and attorneys assist parents at IEP meetings, Mediation Conferences and Due Process Hearings. CASE also provides free consultations about special education rights and services to parents and professionals by telephone or face-to-face. CASE is a nonprofit organization serving all children with disabilities who need or may need special education services. For more information, contact:
Protection and Advocacy, Inc. (PAI), is a private, nonprofit organization that protects the legal, civil and service rights of Californians who have developmental or mental disabilities. PAI provides a variety of advocacy services, including information and referral, technical assistance, and direct representation. For information or assistance with an immediate problem, call:
PAI - Toll Free/TTY: (800) 776-5746
8:30 AM to 5:00 PM - Monday through Friday
PAI receives funding under the Developmentally Disabled Assistance and Bill of Rights Act and the Protection and Advocacy for Mentally Ill Individuals Act. Any opinions, findings, recommendations or conclusions expressed in this publication are those of the authors and do not necessarily reflect the views of the organizations which fund PAI.
On June 4, 1997, the Individuals with Disabilities Education Act (IDEA) was amended by Congress and signed into law by President Clinton. Most of the new provisions in IDEA became effective on that date. Community Alliance for Special Education (CASE) and Protection & Advocacy, Inc. (PAI) have incorporated these amended IDEA provisions into the Seventh Edition of the Special Education Rights and Responsibilities (SERR) manual.
Because special education services in California are funded in part with federal money, these IDEA amendments take precedence over any prior inconsistent federal law or current state law, except where state law provides more protections or at least the same level of protections. In this edition of SERR, citations of federal law refer to the section numbers where these amendments appear in federal law at Title 20 of the United States Code. Citations of federal regulations refer to current, unrevised federal regulations at Title 34 of the Code of Federal Regulations. State citations refer to current California law and regulations.
New federal regulations must now be developed to implement the new federal statutes. The new federal regulations are supposed to be issued by July 1, 1998. However, this process may take longer. In addition, California special education law and implementing regulations will also be amended once federal regulations are issued. CASE and PAI will monitor the development of these final federal regulations, and state law and regulations, so that final federal and state laws and regulations can be incorporated into later supplements and editions of SERR.
It is important for you to know that the Individual Education Program (IEP) provisions of the IDEA amendments do not become effective until July 1, 1998. Since IEPs written for the 1998-99 school year must meet the new IDEA IEP requirements, CASE and PAI have chosen to include these new IEP provisions in this edition of the SERR manual (Chapter 4). We hope that this information will help as you develop IEPs for the 1998-99 school year and beyond.
For further information on the development of federal and state law and regulation, or clarification about IDEA implementation, please contact CASE or PAI.
RIGHTS AND RESPONSIBILITIES
TABLE OF CONTENTS
TABLE OF CONTENTS
Chapter 1 Information on Basic Rights and Responsibilities
Chapter 2 Information on Evaluations/Assessments
Chapter 3 Information on Eligibility Criteria
Chapter 4 Information on IEP Process
Chapter 5 Information on Related Services
Chapter 6 Information on Due Process Hearings/Compliance Complaints
Chapter 7 Information on Least Restrictive Environment
Chapter 8 Information on Discipline of Students with Disabilities
Chapter 9 Information on Inter-Agency Responsibility for Related Services (AB 3632/882)
Chapter 10 Information on Vocational Education
Chapter 11 Information on Preschool Education Services
Chapter 12 Information on Early Intervention Services
NOTE: The text in each chapter refers to specific questions in other chapters by using the titles shown above.
RIGHTS AND RESPONSIBILITIES
Information on Due Process Hearings/Compliance Complaints
TABLE OF CONTENTS
6. What can I do if a teacher or other school staff person hurts my child -- other than bringing a civil lawsuit against a school district or reporting the incident to the appropriate law enforcement authorities?
33. My child's behavior is the result of his disability. Is there any requirement that my child's disability be taken into consideration before he is placed in a 45-day alternative placement without my consent?
37. My child, who is being expelled, has not been made eligible for special education but I believe he would qualify if the school district assessed him. What will happen with my child's placement while we are waiting for the results of that evaluation?
38. My child, who is being expelled, has not been made eligible for special education but I believe she would qualify if the school district assessed him. Is my child protected by any special rules regarding discipline procedures for students with disabilities that have not been officially recognized by the school district?
RIGHTS AND RESPONSIBILITIES
Information on Due Process Hearings/Compliance
1.What is a due process hearing?
When the parents of a student with disabilities and the educational agency disagree about the
child's eligibility, placement, program needs or related services, either side can request a due
process hearing. At the hearing, both sides present evidence by calling witnesses and submitting
any pertinent reports and evaluations that support their position. An independent hearing officer
(hired by the state) decides whose witnesses and documents are correct and what program is
appropriate. A DUE PROCESS HEARING IS GENERALLY NOT APPROPRIATE TO
ADDRESS ISSUES ADDRESSED BY THE COMPLIANCE COMPLAINT PROCESS. See
2.What is a compliance complaint?
When the educational agency appears to have violated a part of special education law or
procedure (for example, will not assess or refer a child to special education, does not follow time
lines for assessment and referral, does not inform parents of an individualized education program
[IEP] meeting, does not implement the IEP, or fails to implement a due process hearing decision),
a parent, individual, public agency or organization can file a complaint with the California State
Department of Education (CDE). An investigator from the CDE investigates the allegations and
makes a written determination of whether the education agency was "out of compliance" with law
or with the student's IEP. If the CDE finds an education agency to be "out of compliance", it
should order the agency to come back into compliance. In addition, the CDE may order the
agency to submit a plan of correction -- a document describing the steps the agency has taken and
will take to assure that the problem does not occur again, either to this student or to others.
3.What is the difference between a compliance complaint and a due process hearing?
Although people often confuse compliance complaints and due process hearings, the main difference is this:
-- when there is a disagreement about what should go into a child's IEP, or where to implement the IEP, then a due process hearing is appropriate;
-- when the education agency has not followed special education laws or procedures or has not implemented what is already specifically written into a student's IEP, then a compliance complaint is appropriate.
In other words, a due process hearing involves a disagreement over what a child's program should
include, while a compliance complaint involves a failure by the educational agency to follow the
rules or to do what has already been agreed to in writing in the IEP.
4.Would I follow different complaint procedures if OT/PT or mental health services are not provided as specified in my child's IEP?
If occupational or physical therapy (OT/PT) or mental health services are not provided in accordance with your child's IEP, you can file the complaint described in Question 2 and/or a complaint under the Assembly Bill (AB) 3632 interagency dispute resolution procedures. Filing complaints under both processes may bring a quicker resolution. The interagency dispute resolution procedures apply if your child is not receiving OT/PT or mental health services as specified in the IEP. In that situation, you can file a notice of failure to provide related services with the Superintendent of Public Instruction (Superintendent) or the Secretary of Health and Welfare (Secretary). [California Government Code (Cal. Gov. Code) Sec. 7585(a).]
Secretary of Health & Welfare, Superintendent of Public Instruction, 1600 Ninth Street, 4th Floor 721 Capitol Mall, Room 524, Sacramento, CA 95814 Sacramento, CA 95814
Before reviewing your complaint, the agencies involved will want to see a copy of your child's IEP. You should send a copy of the IEP with your complaint.
The Superintendent and the Secretary must meet to resolve the issue within 15 calendar days of receiving the complaint. They must mail a written copy of the meeting resolution to you, to the local education agency, and to the affected departments, within 10 days of the meeting. [Cal. Gov. Code Sec. 7585(b).]
If the issue cannot be resolved within 15 days to the satisfaction of the departments involved, it can be appealed to the Office of Administrative Hearings (OAH). The OAH will review the issue and submit findings within 30 days of receipt of the case. The OAH decision is binding on all parties to the dispute. [Cal. Gov. Code Sec. 7585(c)-(e).]
When a complaint is filed pursuant to Section 7585(a), the student affected by the dispute must
receive the service pending resolution of the dispute if the student had been receiving it. [Cal.
Gov. Code Sec. 7585(f).]
5.Who can file a compliance complaint?
Any individual, public agency, or organization (such as a parent group) may file a written
complaint. [5 California Code of Regulations (Cal. Code Regs.) Sec. 4600(b).] The complaint
may concern a single child, a group of children, or a policy of a local education agency which you
think violates federal or state special education law.
6.What can I do if a teacher or other school staff person hurts my child -- other than bringing a civil lawsuit against a school district or reporting the incident to the appropriate law enforcement authorities?
If a child or group of children is in immediate physical danger, or the health, safety or welfare of a
child or group of children is threatened, you may file a complaint with the CDE under the
Uniform Complaint Procedure [Title 5, Cal. Code Regs. Sec. 4600 et seq.], and the CDE must
investigate directly. [Title 5 Cal. Code Regs. Secs. 4611(a) and 4650(a)(viii)(C).]
7.When should I file a compliance complaint directly with the CDE?
Nearly all the violations that can form the basis of a compliance complaint should be filed with the CDE. The CDE must directly intervene (not refer the complaint to the local agency for self-investigation) in any of the following situations:
(A) The complaint indicates that a public agency, other than a local educational agency, as specified in Cal. Gov. Code Sec. 7570 (AB 3632), has failed or refused to comply with an applicable law or regulation relating to the provision of free, appropriate public education to individuals with disabilities.
(B) The complaint indicates that the local educational agency or public agency has failed or refused to comply with the due process procedures established in federal and state law and regulations, or has failed or refused to implement a due process hearing order.
(C) The complaint indicates that the child or group of children may be in immediate physical danger or that the health, safety or welfare of a child or group of children is threatened.
(D) The complaint indicates that a student with disabilities is not receiving the special education or related services specified in the student's IEP.
(E) The complaint involves a violation of federal law governing special education, 20 U.S.C. Sec. 1400 et seq., or its implementing regulations. [5 Cal. Code Regs. Sec. 4650(a)(viii).]
If the facts of your situation fit into any one or more of the five situations described above and if you feel that your local school district should not investigate your complaint, you should specifically request that the CDE investigate your complaint directly. See Sample Letter - Compliance Complaint, at the end of this chapter. You should identify the letter(s) outlined above -- (A) through (E) -- that most resembles your situation. You should mention the specific subsections in your complaint letter. Since subsections (A) through (E) cover most of the situations that can lead to filing a Compliance Complaint, you should be able to identify a subsection that fits your situation.
Outline the reasons for your request in your complaint letter. Your reasons may not conform
exactly to the criteria stated above. However, this should not prevent you from at least making
the request. The Compliance Unit will determine whether or not to first refer your complaint for a
8.How do I file a compliance complaint with the CDE?
To file a Compliance Complaint with the CDE, write to:
Complaint Management and Mediation Unit, Special Education Division, California State Department of Education, 515 L Street, Suite 270, Sacramento, CA 95814
You should fully describe the situation that caused you to request the compliance investigation,
including which parts of the law have been violated and the basis for your request. You may not
know the exact section(s) of law that have been violated. That is all right. If you describe the
situation adequately, the Complaint Management and Mediation Unit should match the
correct section(s) with your particular situation. If your child's IEP or other documents are
relevant to your complaint, you should attach them. See Sample Letter - Compliance
Complaint at the end of this chapter.
9.What happens after I file a complaint?
Under federal and state law, the CDE has 60 calendar days from receipt of the complaint to carry out any necessary investigation and to resolve the complaint. [34 Code of Federal Regulations (C.F.R.) Sec. 76.781; 5 Cal. Code Regs. Sec 4631(a).] When it receives your complaint, the CDE must review the complaint to determine if it is a matter for state or local investigation. Once the CDE makes its determination, CDE must immediately notify you of its decision and either refer the complaint for local investigation or begin its direct investigation. [5 Cal. Code Regs. Sec. 4651.]
Although the complaint office must process your complaint within 60 days, the office has developed a process to "fast-track" certain complaints which present a small number of uncomplicated issues and provide resolution much more quickly than 60 days. Very often parents need resolution much more quickly than 60 days. The most obvious examples of this are when school districts do not comply with an IEP or with the laws during an extended school year program or when certain services are to be provided by a school district during any field trip or end-of-the-year activity and the school district refuses such services a matter of days before the event. If your reason for filing a compliance complaint involves one or two simple compliance issues, you may wish to ask in your complaint for "fast-track" treatment. Examples of a simple complaint might include: "my child's IEP specifies that he is to receive transportation and the bus has not come for two days," or "my child's teacher does not attend his IEP meetings," or "my child's IEP specifies that he have an instructional aide during certain periods of the day and the aide has not been provided," or "my child's principal has told me that because of my child's behavior at school I should not bring him back." After filing your complaint, you may also wish to call the compliance office to find out who the complaint has been assigned to and to remind that individual of the simplicity of your complaint and your desire or need for expedited processing.
Whether or not you file your complaint as a fast-track complaint, if you do not hear from the
Complaint Management and Mediation Unit within 10 days after you mail your complaint, you
should call the Compliance Unit at (916) 455-4632 to follow up.
10.How does the CDE investigate complaints?
When the CDE either directly investigates your complaint or you appeal a local education agency's decision after a self-investigation, the CDE must offer to mediate the dispute. The mediation must be conducted within the 60-calendar-day time line for completion of the complaint investigation. The time to complete the mediation cannot exceed 30 days unless you and the local education agency agree to the extension. [5 Cal. Code Regs. Sec. 4660(a)(1) and (c).]
Either you or the local education agency can waive (give up) your right to the mediation process. If mediation is waived or if mediation does not resolve the issues, CDE must conduct an on-site investigation of the complaint. However, the parties may agree to mediate some of the issues and submit the other issues for state investigation. [5 Cal. Code Regs. Sec. 4660(a)(2), (b).]
If an on-site investigation is necessary, the CDE will appoint a compliance investigator to act on your complaint. At least two weeks before the investigation, the CDE will send a written notice of the investigator's name and the investigation dates. The notice will also explain the investigation process. The investigator will contact you and the local education agency to obtain both views of the problem and will review records if necessary. [5 Cal. Code Regs. Secs. 4662, 4663.]
The CDE must complete its investigation and resolve the complaint within 60 calendar days after
receiving a request for direct state intervention or an appeal of a local investigation. [34 C.F.R.
Sec. 76.78; 5 Cal. Code Regs. Sec. 4662(d).]
11.Who handles complaints when the CDE does not intervene directly?
If the CDE chooses not to intervene directly, it must send the complaint immediately to the local
education agency involved for investigation. [5 Cal. Code Regs. Sec. 4640(a)(1).] In addition, the
CDE must notify you by letter that it has transferred the complaint and that the CDE is requesting
local resolution of the complaint. The letter must also advise you of the appeal procedures should
you disagree with the results of the local investigation. [5 Cal. Code Regs. Sec. 4640(a)(2).]
12.How do I file a compliance complaint with my local school district?
You should file a compliance complaint with your local school district unless you are requesting a direct investigation by the CDE. See Question 6. You should send the complaint to your Superintendent of Schools or the Director of Special Education. [5 Cal. Code Regs. Sec. 4630(b)(2).]
Each school district must have its own written complaint investigation policy and procedure that has been approved by its Board of Education. Be sure to request a copy of your school district's specific complaint investigation process before you file a complaint with your local district.
You should fully describe the situation that has caused you to request the compliance
investigation, including which parts of the law have been violated. You may not know the exact
section(s) of law that have been violated. That is all right. If you describe the situation adequately,
the school district should match the correct section(s) with your particular situation. If your child's
IEP or other documents are relevant to your complaint, you should attach them. See Sample
Letter - Compliance Complaint at the end of this chapter.
13.How does a local school district conduct investigations?
The school district has 60 calendar days after receiving your complaint to complete an investigation. This time period may be extended only with your written agreement. [5 Cal. Code Regs. Sec. 4631(a).]
You or your representative, or both, and the school district must have the opportunity to present information relevant to the complaint. Depending on your school district's policies and procedures, the investigation may include a way for you and the school district to meet and discuss the complaint or to question each other or each other's witnesses. [5 Cal. Code Regs. Sec. 4631(b).]
The school district's decision after investigation must be in writing. It should contain findings of
fact, a determination of whether the school district was out of compliance, corrective actions
required by the school district (if any), and the reasons for making the decision. The decision
should also include a notice of your right to appeal to the CDE and the procedures you must
follow in making an appeal to the CDE. [5 Cal. Code Regs. Sec. 4631(c).]
14.Can a local school district try to mediate a complaint as part of its local investigation process?
Yes. School districts may develop a mediation procedure in order to resolve complaints before
conducting a formal investigation. This mediation process cannot extend the 60-day time line for
resolving complaints unless you agree in writing to the extension. However, mediation cannot be
a mandatory part of the process. You may waive this mediation step. [5 Cal. Code Regs. Sec.
15.What happens if I disagree with the local education agency's report?
You may appeal directly to the CDE, Superintendent of Public Instruction, for review of the local decision. You must make any appeal to the CDE for review of a local education agency decision within 15 days after you receive the final written decision of the local agency. [5 Cal. Code Regs. Sec. 4652(a).] If you appeal a decision to the Superintendent of Public Instruction in the CDE, an impartial review must be completed and a report mailed within 60 days of receipt of the request for appeal. [5 Cal. Code Regs. Sec. 4662(d).] See Questions 9 and 10 for the CDE investigation process.
When appealing a local education agency decision, your complaint must set out the reasons for
appealing the decision. The appeal must include a copy of the original complaint and a copy of the
local education agency decision. [5 Cal. Code Regs. Sec. 4652(b) and (c).]
16.What happens when the CDE finds a public education agency to be out of compliance?
If the investigation indicates a failure by the public education agency to comply with law, the CDE may require corrective action. The CDE investigation report must set forth the corrective actions the education agency is to take, along with time lines for correction. [5 Cal. Code Regs. Sec. 4664.]
If the non-compliance is not remedied, the Superintendent shall take further action. Actions may
include a court proceeding for an order compelling compliance, or a proceeding to recover or
curtail state funding to the non-compliant local education agency. [5 Cal. Code Regs. Sec.
17.What can I do if I do not agree with the CDE's decision?
If you or the local education agency are dissatisfied with the CDE's investigation report, either of you may request reconsideration by the Superintendent within 35 days of receipt of the CDE's investigation report. The Superintendent may respond in writing within 15 days, either modifying the conclusions or corrective actions of the CDE's report, or denying the request outright. The CDE's report remains in effect and enforceable pending the Superintendent's reconsideration. [5 Cal. Code Regs. Sec. 4665(a).]
If you are dissatisfied with the final decision of the Superintendent of Public Instruction for the CDE, you may request review of that final decision by the U.S. Department of Education, Office of Special Education and Rehabilitative Services (OSERS). [5 Cal. Code of Regs. Sec. 4665(c); 34 C.F.R. 300.660-300.662.] OSERS's review is discretionary. In other words, OSERS may, but is not required to, review every request for review of the CDE's final decisions.
Any request for OSERS review of the final decision of the CDE must include the following:
Review by OSERS is not a new investigation. It is simply a review of the matter based only on the written materials listed above.
Requests for review should be directed to:
Judith E. Heuman, Assistant Secretary, Office of Special Education and Rehabilitative Services, 330 C Street, S.W., Suite 3006, Switzer Building, Washington, DC 20202-2500
If review is granted, an OSERS staff person will be assigned the review and will notify the requester by letter that review has been granted. There is no time line for receipt of this letter.
The criteria used by OSERS to grant review are generally as follows:
Review will generally not be granted when the complaint presents factual disputes. Factual disputes must be filed under the due process hearing procedure. In addition, complaints that raise issues which depend on laws other than federal special education law (such as state law or Section 504 of the Rehabilitation Act or the Family Education Privacy Rights Act, etc.) will not be granted review. OSERS will in most cases advise the requester in writing the general reasons for denial.
If a review is granted, the decision of the CDE will either be upheld by OSERS or it will be
overturned. If the CDE decision is overturned, there will be an order from OSERS regarding the
appropriate corrective action to be taken by the CDE. As an alternative, if OSERS finds that the
CDE decision failed to address and resolve all issues presented by the complaint, OSERS may
order the CDE to do so. The parent, or whoever is pursuing the complaint, may ask for review by
OSERS of the results of the CDE further consideration of the complaint.
18.Can I file a complaint with any other agencies?
Yes. If your complaint involves an issue of educational discrimination under Section 504 of the
Rehabilitation Act of 1973 (see Question 19), you can file a discrimination complaint with the
U.S. Department of Education, Office of Civil Rights (OCR). Complaints of educational
discrimination against students by education agencies may also be filed with the CDC. [5 Cal.
Code of Regs. 4600(c); 4630(b); 4650(a)(ii).] Issues of educational discrimination, however, are
usually appropriate for filing with the OCR under Section 504.
19.How would I file a complaint with the OCR?
The OCR is responsible for investigation of complaints regarding allegations of discrimination on the basis of disability that may constitute violations of Section 504 of the Rehabilitation Act of 1973. [29 U.S.C. Sec. 794.] You will find the regulations defining what constitutes discrimination in education under Section 504 at 34 C.F.R. Sec. 104.1 et seq.
If you wish to file a complaint with the OCR, you should write or call OCR at the address below and ask for a copy of the complaint form and instruction sheet for filing such a complaint.
U.S. Department of Education, Office for Civil Rights, Region IX Office, Old Federal Building, 50 United Nations Plaza, Room 239, San Francisco, CA 94102, Telephone: (415) 437-7700; TTY (415) 437-7786; FAX (415) 437-7783
Complaints that do not allege violations of Section 504, but may constitute violations of P.L.
94-142, should be filed with the CDE as a compliance complaint. See Questions 1, 2, 3, 5, 6, 19
20.When would I file a Section 504 discrimination complaint with OCR?
A parent or other interested party may wish to file a Section 504 complaint whenever, as a result
of the conduct or policy of the education agency, a student with a disability does not receive
educational benefit from the program commensurate with that received by his/her non-disabled
peers. This includes, of course, the situation where a student with a disability is excluded from
participation in any federally funded program or activity, such as public education. [34 C.F.R.
Sec. 104.4(a).] Schools generally receive federal funding. A student does not have to be a special
education student for you to file a discrimination complaint with OCR against a school. (See
Chapter 1, Question 6 of this manual.) Such complaints could include access issues like
architectural barriers or program access. You must file a discrimination complaint within 180 days
from the date of the discrimination. [34 C.F.R. Sec. 100.7(b).]
21.How does the OCR act on complaints?
The OCR will acknowledge your complaint within 15 days of its receipt. However, OCR may take up to 45 days to review your complaint if additional information is necessary to process your complaint. OCR will investigate your complaint and send you a letter of finding within 120 days from the start of the investigation. If it finds the school district to be out of compliance, OCR will seek voluntary compliance within 60 days from date the school district receives the letter of finding. If arrangements for compliance cannot be achieved, OCR will begin enforcement measures within the next 30 days.
If you requested a state due process fair hearing on the same issue that you filed with OCR, OCR
will postpone action on your complaint until resolution of your request for a hearing.
22.Can I file a discrimination complaint with the CDE?
Yes. You may file a complaint of discrimination under the CDE Compliance Complaint process. Complaints alleging discrimination are one type that calls for direct CDE intervention, as opposed to local education agency self-investigation. [5 Cal. Code of Regs. Sec. 4650(a)(ii).] Complaints alleging discrimination must be filed within six months of (1) the discriminatory conduct or (2) when the complaining party first learned of the discriminatory conduct. The Superintendent of Public Instruction may extend the six-month filing period by 90 days for good cause upon a written request that describes the reasons for needing the extension. [5 Cal. Code or Regs. Sec. 4630(b).]
The individual who files the complaint must ask for direct CDE intervention pursuant to Section 4650(a)(ii). Otherwise, the complaint should have been filed with the local education agency. [Cal. Code of Regs. Sec. 4630(b)(2).]
These investigations must be conducted in a manner that protects the confidentiality of the parties
and the facts. [5 Cal. Code of Regs. Sec. 4630(b)(3).]
23.When would I request a due process hearing?
Normally, you would request a due process hearing after an IEP meeting (1) if you disagree with
the special education service or placement being proposed by the district, or (2) when the district
refuses to provide an assessment, a service or a placement for your child which you believe is
necessary. [Cal. Ed. Code Sec. 56501(a); 34 C.F.R. Sec. 300.506(a).] At the present time,
under state law, students cannot initiate due process procedures unless they are
emancipated or are wards or dependents of the court for whom no parent can be identified
or located and for whom no appropriate surrogate parent has been appointed. [Cal. Ed.
Code Sec. 56501(a).]
24.When must a school district notify me if the district proposes to change or modify my child's special education program?
An important first step to due process of law in special education is an adequate written notice from the school district to you of exactly what the district is proposing or refusing to do and why. Any time a school district proposes to initiate or change the identification, evaluation, or educational placement of a student or the provision of a free, appropriate public education, it must provide the parent of the student with a written notification. In other words, any time a district proposes:
In addition, any time a district refuses a parent's request for a specific identification (qualifying
condition) change, for a certain evaluation or change to an existing evaluation, for an educational
placement change, for a change in a component of her child's IEP, the district must provide the
parent with the same kind of written notice described below which explains and supports the
reasons for its refusal. [34 C.F.R. 300.504(a)(2).]
25.What information should the school district include in this notice?
The written notice required above must contain all of the following:
[20 U.S.C. 1415(c).]
The information contained in a written notice is crucial to a parent making intelligent and informed decisions. In Union School District v. B. Smith, 20 IDELR 987, a Federal Circuit Court in California ruled that notice provisions were not merely technical requirements but substantive rights, and precluded the district from arguing the appropriateness of a placement that had been verbally offered by the district and refused by the parents.
Unfortunately, this notice of proposed or refused changes by districts is one of the most
universally ignored provisions of special education law in California.
26.Are there any other notices that the school district must give?
Yes, the district must give parents a written notice of their procedural rights at the time the child
is first referred for special education evaluation, every time the parents are notified of an IEP
meeting,[(1)] whenever a child is re-evaluated, and whenever a parent files for a due process
hearing. [20 U.S.C. Sec. 1415(d)(1).]
27.What information must the procedural rights notice contain?
The procedural rights notice must be in the native language of the parents (unless the school district is clearly unable to do so). It must be written in an easily understandable way and must contain a full explanation of all of the following:
[20 U.S.C. Sec. 1415(d)(2).]
NOTE: As a result of recent amendments to federal special education law, a special
education pupil's rights to remain in his/her current educational placement during due
process proceedings or until his/her IEP has been changed with a parent's consent, as well
as a pupil's rights in the discipline (suspension and expulsion) process [see Chapter 8] have
been lessened somewhat by the federal law. However, California law has not been amended
and may still provide some protections which the federal law no longer provides. Where
either federal or state law provides special education pupils more rights and protections
than the other law, the law providing more rights and protections is the controlling law. [20
U.S.C. Sec. 1402(8)(B); Town of Burlington v. Department of Education, 736 F.2d 773 (1st
Cir., 1984); David D. v. Dartmouth School Committee, 775 F.2d 411 (1st Cir., 1985); Geis v.
Board of Education, (3d Cir., 1985); Board of Education v. Rowley, 458 U.S. 176 (1982);
California School for the Blind v. Honig, 736 F.2d 538 (9th Cir., 1984); Doe v. Angrig, 651
F.Supp. 424 (D. Mass., 1987).] It is likely that school districts will begin to operate under
the new lower standard of protection of the federal law immediately and ignore the existing
state law. Parents should be aware, however, that until state law is amended to conform to
the federal law, pupils should be entitled to any of the higher protections of state law in the
due process and disciplinary procedures.
28.What happens to my child if I file for a due process hearing?
Except in certain situations, your child must remain in her then current educational placement and have her current IEP fully implemented (including all related services) from the time you request a hearing until the due process hearing proceedings (and judicial proceedings, if any) are completed. Your child's current educational placement is the operative placement actually functioning at the time the dispute first arises. This "status quo" can be altered if the parents and local agency agree to a change in placement or services. The status quo might also change if, as a result of her dangerous behavior or possession of weapons or drugs, the school district obtains a court order barring the student from returning to her then current placement. This protection is sometimes called the "stay-put" provision. [20 U.S.C. Sec. 1415(j); 34 C.F.R. Sec. 300.513; Cal. Ed. Code Sec. 56505(d).] However, as a result of recent changes in law, school districts are less likely to resort to using the courts. Schools may prefer or may be required to use temporary alternative educational settings to address safety issues rather than seeking to have a court bar a pupil from all educational services for an indefinite period of time.
Note: Although the "stay-put" provision applies after filing for a due process hearing and during the period of any due process mediation conference, this protection does not apply to the pre-due process mediation conference provided for by Cal. Ed. Code Sec. 56500.3. See Question 44.
Sometimes districts attempt to move a student to a new school or class that also meets the program description of the IEP. The district may then argue that such a change is not a "change in placement", thus allowing the district to make the move while due process is pending. State Hearing Office decisions have held that such a move is unlawful, unless the original placement has been discontinued by the district for budgetary reasons. Student v. Saddleback Valley Unified School District, SN60-94; Student v. Oxnard Elementary School District, No. 777-94A.
The "status quo" rule has been considered to be inapplicable to a situation where a student is
placed by a district in a private school and the parents then move to a new district. This
understanding has been fostered by 5 Cal. Code Regs. 3067, which allowed the new district to
provide an alternative public placement if it does not believe continued placement in the private
school is necessary. However, Section 3067 was declared void by the Legislature in Section 11 of
AB 1250, effective January 1, 1995. A Federal District Court in Maine has held that the "status
quo" rule does apply to this situation, even when the parents move to a new state. It is arguable
that Section 3067 conflicted with IDEA. Now that it has been voided, it appears that a parent of a
publicly funded private school student who moves to a new district and files for due process can
require the new district to continue to fund that placement while due process is pending.
29.Are there exceptions to my child's right to remain in his current educational placement while due process proceedings are going on?
Yes, even if due process is pending, and at any other time as well, school officials or
administrative hearing officers may change a pupil's placement to another educational setting
under certain circumstances and for certain periods of time without parental consent. [20 U.S.C.
30.Under what circumstances and for how long may school officials change my child's placement without my consent?
School officials may place a special education pupil in an appropriate interim alternative educational placement for up to 10 school days for any behavior for which a non-special education pupil could be placed in an alternative setting. (For a list of behaviors for which pupils can be placed in these alternative settings, see Chapter 8 of this manual or Cal. Ed. Code Sec. 48900.) [20 U.S.C. Sec. 1415(k).]
In addition, school officials may place a special education pupil in an appropriate alternative educational placement for up to 45 calendar days if the child has done either of the following:
[20 U.S.C. Sec. 1415(k)(1)(A).]
31.Must the school officials do anything else if they choose to change the my child's placement for any of the reasons described in the previous answer?
Yes, if school officials change a special education pupil's placement for either 10 days or 45 days,
as described in the previous answer, they must, either before or 10 days after changing the
placement, convene an IEP meeting to develop an assessment plan. The assessment plan must be
for a functional behavioral assessment. Generally speaking, a functional behavioral assessment is
an evaluation to determine what function the unacceptable behavior achieved for the pupil and
what behavioral services may be necessary to eliminate that behavior and teach socially acceptable
behaviors in its place. If the school district has already done a functional behavioral assessment
and implemented a behavior plan, then the IEP meeting must still take place before or within 10
days of the placement change, but it shall be for the purpose of reviewing the behavior plan and
modifying it, as necessary, to address the behavior that led to the placement change. [20 U.S.C.
32.Under what circumstances and for how long may a hearing officer change my child's placement without my consent?
Federal law now provides that, following a request by school officials, a hearing officer may order a pupil into an appropriate alternative educational placement for not more than 45 calendar days if the hearing officer does all of the following.
[20 U.S.C. 1415(k)(2).]
NOTE: Since the amendments to federal special education law in June of 1997, the Special
Education Hearing Office has taken the position that this new right of school officials to
request that a hearing officer change a pupil's placement for 45 days on the grounds of
likelihood of injury sets a lower standard of protection than does California law. The
Special Education Hearing Office has, therefore, declined to act on requests by school
officials to change pupils' placements for up to 45 days on these grounds. [See Stanislaus
County Office of Education and Ceres Unified School District v. Student, SN 1357-97.] Until
California law is amended to be consistent with federal law on this point, changes in pupils'
placements without parental consent on the grounds of likelihood of injury will have to be
made by state or federal court judges.
33.My child's behavior is the result of his disability. Is there any requirement that my child's disability be taken into consideration before he is placed in a 45-day alternative placement without my consent?
Prior to the placement change being made by school officials or a hearing officer, there is no requirement of any consideration of whether the child's disability may have caused the objectionable behavior. However, on the day the decision to change a pupil's placement is made by school officials, the parents must be notified of that decision and of all their rights. No more than 10 days later, the IEP team, including the parents, must meet to review the relationship between the child's disability and the behavior in question. [20 U.S.C. 1415(k)(4)(A)&(B).]
(For a discussion of the requirements for that IEP, please see Chapter 8, Questions 4-9.)
34.Who determines what is an appropriate alternative educational setting for my child and what are the criteria for that determination?
The determination must be made by the IEP team. The alternative placement must enable the
student to participate in the general curriculum (although in another setting), and continue to
receive services and modifications, including those described in the IEP that enable the child to
meet IEP goals. The placement must include all services and modifications designed to address
the behavior in question so that it does not reoccur. [20 U.S.C. Sec. 1415(k)(3).]
35.May I challenge the IEP team's determination of an appropriate alternative placement by filing for due process?
Yes, you may challenge the alternative placement in due process, on the basis that the district has
not met the legal requirements to justify a change of placement, or on the basis that the alternative
placement does not meet the standards set out in Question 34 above. You also have the right to
go to due process to appeal the decision of a hearing officer who has put your child in an
alternative placement under the "substantially likely to result in injury to self or others" criteria
discussed in Question 32. [20 U.S.C. Sec. 1415(k)(6).] This potentially gives you twodue process
hearings before, presumably, two different hearing officers on the issue of whether your child
meets these criteria. Of course, during these appeals your child remains in the alternative
placement pending the decision(s) of the hearing officer(s) or upon the expiration of 45 days,
whichever occurs first. [20 U.S.C. Sec. 1415(k)(7)(A).] Since, under normal timelines for due
process hearings, the case might not be decided by the time the 45 days have expired, the law
allows you to request the hearing office to schedule an expedited hearing. [20 U.S.C. Sec.
36.If due process has not been completed within the 45-day limit for alternative placement, are there any circumstances when the alternative placement may be extended?
The district may request that the hearing officer extend the alternative placement on the basis that
returning the child to his original placement would constitute a danger. Upon request, the hearing
officer will hold an expedited hearing. The hearing officer may then order such an extension if
he/she believes that the criteria have been met. If such a decision is made by the hearing officer,
the student remains in the alternative placement until the final due process decision is made. [20
U.S.C. Sec. 1415(k)(7)(C).]
37.My child, who is being expelled, has not been made eligible for special education but I believe he would qualify if the school district assessed him. What will happen with my child's placement while we are waiting for the results of that evaluation?
Where you have requested an evaluation for special education eligibility after the behavioral
episode that led to the expulsion recommendation, the evaluation must be expedited. However,
until the results of the evaluation are available, the child will remain in the educational placement
determined by school officials. (It is not clear from the law that whether Congress intended the
expedited evaluation to be completed before any expulsion hearing takes place or whether an
expulsion hearing could precede completion of the expedited evaluation.) [20 U.S.C. Sec.
38.My child, who is being expelled, has not been made eligible for special education but I believe she would qualify if the school district assessed him. Is my child protected by any special rules regarding discipline procedures for students with disabilities that have not been officially recognized by the school district?
Your child is entitled to all the pre-expulsion protections which a special education child has if you can establish that the district had knowledge that the child had an eligible disability before the behavior that precipitated the disciplinary action occurred. The district is deemed to have such knowledge if, before the behavior in question: (1) the parent has expressed concern in writing to the district that the child was in need of special education (unless, because of illiteracy or disability, the parent could not comply with this requirement); (2) the behavior or performance of the child demonstrates the need for special education; (3) the parent requested special education evaluation by the district; or (4) the child's teacher or other district personnel have expressed concern about the behavior or performance of the child to the district special education director or other district personnel. [20 U.S.C. Sec. 1415(k)(8)(A&B).]
The parent should file for due process and ask for an expedited hearing in order to present these
arguments as soon as possible.
39.How do I set up a due process hearing?
You must make your hearing request in writing and send it to:
Special Education Hearing Office, Institute for Administrative Justice, McGeorge School of Law, 3200 Fifth Avenue, Sacramento, CA 95817, (916) 739-7053 (916) 739-7066 (FAX)
You should also send a copy to the local education agency. [Cal. Ed. Code Sec. 56502.] If you ultimately prevail in the due process hearing and if you have used an attorney to represent you and wish to collect your attorney's fees from the school district, your request for fees may be reduced if you have not provided certain information in your letter initially requesting a due process hearing. At a minimum, your letter requesting a due process hearing must include: the name and residence address of the child and the name of the school the child is attending, a description of the nature of the problem, and a description of your proposed resolution or resolutions to the extent known to you at the time. [20 U.S.C. Sec. 1415(b)(7).] The California Department of Education is required to develop a model form to assist parents in filing for due process which includes all necessary information. [20 U.S.C. Sec. 1415(b)(8).] The Special Education Hearing Office which conducts the due process hearings and mediations recommends that the letter requesting due process contain some additional information. For that reason, you should use the Sample Letter -- Due Process Hearing Request at the end of this chapter.
When you make your written request for a due process hearing, you should also ask for a copy of the Special Education Hearing Office Notice of Procedural Safeguards, updated 6/97, and any amendments or updates to it, so that you know all the rules for conducting the hearing.
Within three days after receipt of your request, the local education agency must inform you of free
or low cost legal services available in the area. [Cal. Ed. Code Sec. 56502.]
40.Can the local education agency request a due process hearing?
Yes. Either the parent or the local education agency may request a due process hearing. [34
C.F.R. Sec. 300.506(a); Cal. Ed. Code Sec. 56501(a).]
41.Once a request for a due process hearing is made, how long does the special education hearing office (SEHO) have to hold the hearing and make a decision?
The SEHO has 45 days from the day it receives the due process hearing request to make a
decision. [34 C.F.R. Sec. 300.512; Cal. Ed. Code Sec. 56502(a).] Upon request, the SEHO can
grant a continuance for good cause. [Cal. Ed. Code Sec. 56505(f).]
42.What is a mediation conference?
After a due process hearing request is made, the SEHO will provide a mediator to sit down informally with both sides and try to resolve the disagreement. The first step in due process is usually a mediation conference where a mediator from the SEHO helps the parent and school district to resolve their disagreement. The mediator will meet with the parties together and/or separately in an attempt to find common ground and issues on which the parties can move toward resolution. The mediator has no power to force either side to do anything, but only tries to help you reach an agreement.
You have a right to a mediation conference, but you can also waive your right to the mediation conference and proceed directly to the due process hearing. The educational agency has the same right to waive the mediation conference, even if you request the due process hearing. [Cal. Ed. Code Secs. 56502(c), 56501.] The mediation conference must be scheduled within 15 days of the request for mediation. Mediation must be completed within 30 days of receipt of the request for a due process hearing, unless both parent and district agree to extend time for completing mediation. [Cal. Ed. Code Sec. 56503(e).]
Although many disputes are settled in mediation, you cannot assume that your dispute will be
resolved. Accordingly, it is in your best interests to be as prepared as possible at mediation. The
benefits of being well prepared include having increased negotiating power at mediation, and
advanced preparation for the due process hearing if that becomes necessary.
43.What are the pros and cons of going through mediation?
Mediation is encouraged because it gives both sides another chance to reach agreement. An impartial mediator increases the possibility of resolution. The mediation does not change the 45-day rule, although parents are sometimes asked to extend the 45 days to aid in the mediation process. From a tactical standpoint, mediation often gives parents more information about the education agency's point of view. Such information may be helpful if there is a due process hearing.
On the negative side, mediation requires additional time and energy. If it appears that there is absolutely no hope for agreement, it may be best to waive mediation. However, before waiving mediation, make sure that you are prepared to proceed to the due process hearing. Waiving mediation may result in the due process hearing being scheduled sooner than if you participated in mediation.
See Question 44 for a discussion of the distinction between "pre-due process mediation" and "due
process mediation" conferences, and the disadvantages of the "pre-due process mediation"
44.Are there any dispute resolution procedures other than the compliance complaint and due process mediation and hearing?
Yes. After identification of a disputed issue, you may ask for a "pre-due process" mediation. This pre-due process mediation is not mandatory and you may proceed directly to filing for a due process hearing.
A pre-due process mediation is conducted exactly like a due process mediation. The state will provide a mediator to sit down informally with both sides and try to resolve the disagreement. See Question 42. The pre-due process mediation must be scheduled within 15 days and completed within 30 days of receipt of your request by the Special Education Hearing Office. A copy of the written resolution, if any, must be mailed to you and the school district within 10 days following the pre-due process mediation conference. The Special Education Hearing Office will likely not offer a due process mediation after the parties have participated in a pre-due process mediation without success.
You must request your pre-due process mediation in writing. You should send your request to the Special Education Hearing Office with a copy to your local school district. See Question 39 for the address. In order to assist the Special Education Hearing Office, you should include a specific request for a pre-due process mediation in your letter. [Cal. Ed. Code Sec. 56500.3.]
There are several major disadvantages to participating in a pre-due process mediation. One
disadvantage of the pre-due process mediation is that parents cannot have an attorney or
independent contractor to provide legal advocacy and participate at the mediation. Another
critical disadvantage of the pre-due process mediation, and the reason advocates do not
recommend it, is because the "stay-put" protections, which guarantee that the student will remain
in his existing placement until the dispute is resolved, do not apply until a due process hearing has
been requested [Cal. Ed. Code Sec. 56500.3 and 56501.]
45. Should I file for due process immediately, that is as soon as it becomes apparent that the school district and I are at an impasse over services or placement at the IEP meeting?
If the school district is threatening to change your child's program or placement without your consent and you wish to keep things the way they are, you may have to file for due process just to preserve the status quo by taking advantage of the "stay-put" provision. See Question 28 of this chapter.
Generally, however, you should not file for due process until you are prepared to properly participate in due process, even if you feel your child is currently being inappropriately served. Nothing about the inappropriate program is likely to change simply by your filing for due process; on the other hand, the time spent preparing your evidence will increase your chances of a successful result.
Within a few days of filing for due process, you will receive a notice from the SEHO. The notice
will contain the dates (2 consecutive days) set for the hearing. The notice will also include the
name and telephone number of the assigned mediator. It will be up to you and the district to
contact the mediator and make arrangements for a mediation conference prior to the hearing
dates, if possible. If you are unable to arrange for mediation prior to the hearing dates, you will
need to postpone the hearing. . The due process hearing dates will be set for approximately five
weeks from the date the SEHO receives your request for due process. The reason these dates for
mediation and hearing are set approximately three and five weeks from the date of receipt of your
request for due process is because of the SEHO's attempt to comply with the federal law requiring
your receipt of the due process hearing decision within 45 days of your request for due process.
46.How do I know if I am prepared for the due process hearing?
At the due process hearing, you will be required to present evidence which establishes that your child needs the services or placement you are seeking through due process. The following are some examples of common disputes.
At a minimum, you may be prepared to enter a due process hearing after you have familiarized
yourself with what the legal standards are for the IEP services or placement you hope to obtain.
Before entering a due process hearing, you must also make sure that the proof you need to meet
those legal standards will be available to you when you need it. If some of your proof is in the
form of documents, you must have those documents at least five days before the hearing to
exchange with the school district. The Special Education Hearing Office asks that you supply it
with a copy of those documents seven days before the hearing. The witnesses you intend to use to
prove your case must be planning on appearing to testify at the date, time and place set for the
47.Where do I get the evidence I will need to present at the due process hearing?
The information you will need to support and establish your beliefs on these issues may come from your testimony if you can give examples of other similar learning experiences, good or bad, which you have had with your child when he/she received a certain level or type or service or when he/she was placed in a certain environment. However, it is likely that there may be a need for testimony from someone who knows your child and who is knowledgeable in the education or training of persons with disabilities to establish some of these elements and to describe what kinds of services may be needed, and in what amounts, and in what environments, and why.
Before requesting due process, the parent, who believes such additional testimony is necessary or
desirable for the best chance of success, must find such a witness and make sure that he/she is
both willing and available to provide that kind of testimony approximately five weeks from the
time the parent is contemplating filing for due process.
48.Can experts testify at a due process hearing?
Yes. It is often very important to have expert witnesses at a due process hearing. An expert
witness is someone who has a great deal of knowledge about special education and, specifically,
about your child's disability and special education needs. The expert witness can assess your child
and the various components of the programs at issue and make a professional observation about
what is and is not appropriate for your child.
49.How would I use an expert witness?
Since both sides usually have witnesses who will testify that their position is correct, it is
important to have an "expert" testify for you. Normally, the expert will meet your child, review his
educational records, visit his class, speak with his teachers, and generally analyze his special
education needs and the programs/services the educational agency is offering. You will then call
that expert as a witness to testify.
50.Instead of having witnesses come to the due process hearing, can I submit letters, records, or other documents to prove my case?
The SEHO follows a regulation which provides that a hearing officer may not base his or her decision on hearsay alone, but must have some other evidence to support the decision. Most documents are considered hearsay because they cannot be cross-examined by the other parties like live witnesses can. The right to cross-examine is an essential part of due process. Therefore, it is crucial to bring witnesses to the hearing who can testify about what they observed and/or what their opinions are concerning the issues in the hearing.
Documents further support and establish the testimony of the witness. Parents should gather and
submit any and all documents that are supportive of their position in the case. However, parents
should always make sure that some competent witness is available and willing to testify at the
hearing on each major point the parents must establish in order to win.
51.Will the hearing officer read all the documents that I submit and the district submits?
You cannot assume that the hearing officer will read all of the records submitted by the parties
prior to issuance of a written decision. Therefore, it is crucial to point out important statements
and passages in the records you submit to the hearing officer, either directly or by references to
those records by your witnesses while they are testifying. In addition, you should organize all the
documents you plan to submit and identify them by numbers or letters. That way the hearing
officer can easily refer to and locate documents both during and after the hearing.
52.Must I be represented by a lawyer in order to go through due process?
No, it is not required that you be represented by a lawyer. However, whether you need a lawyer depends on whether you can collect and properly present the evidence you will need to prevail. If you do not use a lawyer in due process, you should make every effort to consult with a lawyer or advocate who has training and experience in special education law and procedure.
A special education lawyer or advocate is important because he/she can inform you of what law applies to your child's situation. It is important to know what the legal standards are regarding the extent of your child's entitlement to special education services and placement. Your presentation of evidence through your witnesses and documents should be consistent with the legal standards that apply. The things which you and your witnesses will say and the contents of the documents you will submit must be consistent with what your child is entitled to under the special education laws in terms of the kinds and degrees of services and the location of the program.
If you choose to be represented by an attorney at the hearing, you must notify the other parties of this at least 10 days prior to the hearing. (Cal. Ed. Code Section 56507.)
If you do not use an attorney, you may wish to view Protection and Advocacy's video tape on
preparing for and conducting a due process hearing.
53.What if I have already initiated due process but I need more time to prepare or to find a representative before the hearing?
As soon as you realize that you need more time, you should contact the school district to ask for the school district's agreement to a postponement. If the school district does not agree to a postponement, you should immediately make a written request for a postponement to the SEHO. A copy of that written request must also be sent to the district. Your written request to the SEHO must also indicate that a copy has been sent to the district. The SEHO has the authority to grant postponements for "good cause." What constitutes good cause is not specified by the SEHO. Therefore, you should mention as many reasons as you have for needing the postponement (for example, the need to obtain an independent educational evaluation, the unavailability of an important witness or the inability to retain an advocate or attorney to represent you). Recently, the Special Education Hearing Office has not found the unavailability of a witness, in and of itself, sufficient good cause to justify a postponement. The first postponement may be granted by the SEHO, but any further postponements may require much greater justification.
54. Where is the due process hearing held?
The due process hearing is often held at the educational agency offices. It must be at a time and
place that is convenient for you and your child. [Cal. Ed. Code Sec. 56505(b).] However, you will
not be consulted by the SEHO regarding convenient dates. If it is not possible for you to appear
on the date assigned, you should request a postponement.
55.Who attends the due process hearing?
As a parent, you have the right to have the hearing open or closed. If the hearing is open, members of the public can attend. However, even if the hearing is open, you can still have witnesses sequestered. "Sequestered" means that witnesses cannot be present at the hearing to hear the testimony of other witnesses. [34 C.F.R. Sec. 300.508(b)(2); Cal. Ed. Code Sec. 56501(c)(2).]
If the hearing is closed, members of the public cannot attend. A closed hearing usually consists of
you (and your child if you want), your representative, the hearing officer, the education agency's
representative and the agency's advocate.
56.Can the parties submit written information to the hearing officer? How soon must they submit it? Do the parties have to disclose their exhibits and lists of witnesses before the hearing?
Both sides can submit exhibits (for example, letters of support, assessment reports, IEPs, etc.) and should do so. At least five days before the hearing, you must make sure the district has: (1) copies of all documents you intend to submit as exhibits at the hearing; and (2) a list of the potential witnesses you may call to testify at the hearing, along with a very brief and general statement regarding what each witness will testify about. Mailing this information five days before the hearing is not sufficient; the local education agency must receive these materials five days before the hearing. Likewise, the local education agency must submit its documents and list of witnesses to you at least five days before the hearing. Any exhibits or written material exchanged less than five days before the hearing can be prevented from going into the record, and any witnesses whose names were not disclosed five days before the hearing can be prevented from testifying. In addition, both you and the education agency should submit documents and lists of witnesses to the Special Education Hearing Office at least seven days before the hearing. [34 C.F.R. Sec. 300.508(a)(3); Cal. Ed. Code Sec. 56505(e)(6).]
At least 10 days before the hearing, each party must submit to each other party to the hearing a
statement of (1) what that party believes are the issues to be decided at the hearing and (2) that
party's proposed resolution of those issues. As a parent, you may have an attorney represent you
and your child at the due process hearing. If you do not have an attorney in the due process
proceeding, upon your request, a mediator must help you identify the proposed issues and
resolutions. [Cal. Ed. Code Sec. 56505(e)(6).]
57.Is the due process hearing a trial or like court?
The due process hearing is not a trial and it is not technically like going to court (although they
are similar in that witnesses are called). A due process hearing is an "administrative" hearing and
does not take place in a courtroom or before a judge. The hearing officer is someone hired by the
state who knows about special education, and who will impartially review all the evidence and
make a decision.
58.How does the hearing proceed?
Normally, both sides give opening statements which generally describe the issues in the case. The party that calls for the hearing (the petitioner) then presents her case by calling witnesses. The responding party (the respondent) may then cross-examine the petitioner's witnesses, and the petitioner has the right to ask additional questions (re-direct) after the respondent has cross-examined.
After petitioner finishes her case, respondent calls her witnesses (the same procedure as before,
examination, cross-examination, and then re-direct examination). Finally, both parties give closing
arguments. You can also request that the record remain open so that you can submit a written
closing argument. [34 C.F.R. Sec. 300.508(a)(2), Cal. Ed. Code Sec. 56505(e).]
59.What is the record?
The record is simply all evidence (written or oral) received by the hearing officer. Although not
part of the evidence, the oral or written opening and/or closing statements of the parties are also
included in the record of the administrative hearing. Oral evidence (testimony from witnesses), the
opening and closing statements of the parties, and questions asked of witnesses are tape recorded
by the hearing officer. The record also includes exhibits and other written material which have
been accepted into evidence by the hearing officer. You are entitled to receive a copy of the tape
recording after a decision is rendered if you ask for it. [34 C.F.R. Sec. 300.508(a)(4); Cal. Ed.
Code Sec. 56505(e)(4).]
60.What if a witness does not want to attend the hearing?
The law provides that witnesses can be subpoenaed for a due process hearing. This means that
the Special Education Hearing Office will give you subpoena forms to fill out and personally serve
on the proposed witness. (For more information on personal service of subpoenas and other
requirements for compelling attendance of witnesses, see Special Education Hearing Office
Notice of Procedural Safeguards. It is available from the Special Education Hearing Office where
you requested due process hearing.) A subpoena is an order from the state. It orders the witness
to attend the due process hearing. [34 C.F.R. Sec. 300.508(a)(2); Cal. Ed. Code Sec.
56505(e)(3); 5 Cal. Code Regs. Sec. 3082(c)(2).]
61.Does the hearing officer at a due process hearing simply listen to witnesses and review the documents submitted, or can the hearing officer participate in the hearing process?
Hearing officers have a variety of powers in the conduct of a due process hearing, which allow them to participate in the process and to further develop the evidence on which they will base their decision. Hearing officers may do any of the following:
62.Can I get the public education agency to pay for my attorney and expert witnesses?
Under federal law, if you are successful or partially successful in a mediation, a due process hearing, or a court hearing, then a federal court may award you reasonable attorneys' fees. [20 U.S.C. Sec. 1415(i)(3)(A)(B) Attorneys' fees are not available when you have an attorney represent you at an IEP meeting, except where the IEP meeting was convened at the order of a hearing officer or judge. [20 U.S.C. Sec. 1415(i)(3)(D).]
The term "reasonable attorneys' fees" means the lawyer's hourly charges consistent with rates in
your area and the costs of pursuing the case -- for example, the cost of expert witnesses. The
education agency may offer a settlement agreement which asks you to waive your right to
attorneys' fees. Because of this possibility, you should thoroughly discuss it with your attorney at
the time you hire him/her and before you enter into any discussions with the school district. .
Other specific details about the federal attorneys' fee law cannot be included here. However, you
can and should review these laws with your lawyer when you hire him. There are several laws
concerning attorney's fees which parents should be aware of. A parent's attorney's fees may be
reduced if the court finds that the parent did not do better as a result of the due process hearing
than was offered to the parent in writing by the school district at least 10 days prior to the hearing
beginning. Attorney's fees may be reduced if the court finds that the parent unreasonably delayed
final resolution of the dispute. Attorney's fees may be reduced if the parent did not provide the
required written notice to the district of certain information at the time of filing for a due process
hearing. (See Question 40.)
63.If I lose the due process hearing, can I do anything?
Both sides have the right to go to court to appeal the due process hearing officer's decision. Any appeal to court must be filed within 90 calendar days of receipt of the administrative hearing decision. [34 C.F.R. Sec. 300.511; Cal. Ed. Code Sec. 56505(i).]
64. What remedies can I ask for when I file for a due process fair hearing or an action in court?
The most common remedy that parents request and obtain is an order that the school do something -- such as provide the educational services and/or placement that the parents believe constitutes a free appropriate public education in the least restrictive environment for their child. Other remedies include:
Reimbursement is the most common (and practically the only) type of monetary relief parents obtain. In the typical situation, the parents disagree with a school's decision about their child; the parents provide the services to the child at their own expense; a hearing officer or court holds that the parents' view was the correct one and gives the parents the remedy of reimbursement of unilateral expenses. This can include reimbursement of expenses for independent assessments, witness fees, private school tuition, etc.(3)
Compensatory education is sometimes awarded to a child when a school district's significant failure to provide a free appropriate public education has caused the child harm and the child needs additional education. Courts sometimes require evidence that the school district acted in bad faith before they will order compensatory education. This remedy results in the child getting extra schooling -- for example, summer school or school after age 22. It does not mean a monetary award. In California, compensatory education is generally difficult to obtain.
Generally No Damages. A hearing officer cannot award punitive damages for emotional distress or damages for educational malpractice or negligence. Actions requesting damages can be brought in court, but have generally not been successful.
Courts have not awarded damages for educational malpractice, because what constitutes acceptable educational practices has not been defined. They have in rare instances found a common-law theory of negligence for certain acts such as the negligent supervision of a student resulting in injury to the student.
Claims for punitive and emotional distress damages have generally not been successful. However, some students have been successful in actions brought exclusively against individual school personnel in their individual capacities and have obtained awards of damages for emotional distress and punitive damages. [Doe v. Withers (1993) 20 IDELR 422.]
In addition, as a result of changes in federal law, it may be possible in a few situations to obtain damages, including punitive damages, in court actions under Title 42 United States Code Section 1983 for violation of your child's statutory or constitutional rights. [See K. L. v. Southeast Delco School District (1993) 828 F.Supp. 1192 (20 IDELR 244); and Jane Doe v. Taylor Independent School District (1992) 975 F.2d 137 for cases involving physical and/or sexual abuse of students by school district employees.] One case, brought under Title 42 U.S.C. Sec. 1983 and under special education law, sought compensatory and punitive damages. [See Woods ex rel. T. W. v. New Jersey Dept. of Ed. (1993) 796 F.Supp. 767 (19 IDELR 327).]
Note also that recent amendments to the federal special education laws have clarified a student's/parent's right to sue a state in federal court for reimbursement for the costs of placement in an appropriate program where it is determined that a free appropriate public education was not made available to a student. This clarification reverses the U.S. Supreme Court decision in Dellmuth v. Muth, which held that the Eleventh Amendment guarantee of State Sovereign Immunity prohibited such a suit in federal court.
A more thorough discussion of the current status of the law regarding cases for damages and
other relief is beyond the scope of this manual. For materials summarizing this topic, please
contact the Sacramento Office of Protection & Advocacy, Inc.
65.How can a parent ensure that a school district honors the "stay put" provision?
Most school districts are aware of and usually honor the "stay put" provision. However, this issue has become more problematic in recent years. There are several alternatives available to help you enforce your "stay put" rights:
Sample Letter - Compliance Complaint
Dear Sir or Madam:
This is a special education compliance complaint. [5 Cal. Code Regs. Sec. 4600 and following.] I feel that Local Unified School District (LUSD) is out of compliance with federal and state special education laws.
My child's name is John, and he is seven years old. He is developmentally delayed and has a physical disability which requires him to use crutches. I had the following problems with my school district:
NOTE: Pick the problems that apply to your child's situation. If you have a different problem from the ones listed, describe the situation fully and include the part of the law that has been violated. If you do not know the law that has been violated, the Compliance Unit should match the correct law to your situation. See Question 8.
In order to resolve this complaint, I am asking for the following remedies:
I have enclosed a copy of my child's IEP and a letter to the district asking for a copy of the psychologist's report.
Because my complaint involves a matter which calls for direct State Department of Education intervention pursuant to Title 5 Cal. Code of Regulations Section 4650(a)(viii)(C) [if it involves immediate physical danger or threat to children], (D) [if it involves nonimplementation of a student's IEP], or (E) [if it involves a violation of federal special education statute or regulation (see Question 7 for a listing of those situations in which direct state intervention is required)], I have not filed with the local education agency. Rather, I request direct state intervention in this matter.
I ask for immediate investigation and resolution, as my child cannot afford to wait for these services. Thank you for your assistance.
Very truly yours,
NOTE: See Due Process Hearings/Complaints for information on time lines that apply to compliance complaints.
NOTE: If you have not heard from the Compliance Unit within 10 days after you mail your complaint, we recommend that you call to follow up at (916) 322-0372 (direct).
Sample Letter - Due Process Hearing Request
RE: Due Process Hearing
I am writing to request a due process fair hearing for my son, John Blue. John Blue's address is [address]. His date of birth is [date]. He is in the grade. He is attending [name of school district] district. John Blue resides in the [name of the school district in which the child resides] school district. I am the parent [or guardian] of John Blue and my residence address and telephone number are as noted above.
Besides the [name] school district, the [name of other public agency involved in the assessment or provision of special education or related services to the pupil] is involved in John's IEP.
I am requesting this due process proceeding because [explanation of disputed issues involved]. I believe these disputed issues could be resolved if [explanation of parent's/guardian's proposed resolutions to each disputed issue described above].
As noted below, I have sent a copy of this letter to [name of applicable school district special education official]. Please send me a copy of the Special Education Hearing Office Notice of Procedural Safeguards and any amendments or subsequent revisions of the Notice. Please contact me as soon as possible to advise me of the dates of the due process hearing and name and telephone number of the proposed mediator.
cc: [name of applicable school district superintendent to whom copy of this letter has been sent.]
NOTE: You can also use your school district's form for requesting a due process hearing, if your district has one, and if the form contains all of the information included above. You should send a courtesy copy of your request for a due process fair hearing to the superintendent of the school district.
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