S.E.L.P.A.
RESOURCES
Due Process and Compliance Complaint Procedures
 California
State Council for Exceptional Children (CSCEC)
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DisabilityInfo.gov is the federal government's one-stop
Web site for people with disabilities, their families, employers,
vocational rehabilitation and human resource professionals and
many others. The
New Freedom Initiative's Online Resource for Americans with Disabilities.
Information
and resources to serve the unique needs of persons with disabilities
so that each person will meet or exceed high standards of achievement
in academic and nonacademic skills.
"The San Benito County Office of
Education offers these links as a service to our community. The
COE is not responsible for the content of these links nor
recommends or endorses any products or services offered."
When things are not working for your child in
school, there are specific steps and procedures you can take to
resolve problems. The Individuals with Disabilities Act (IDEA)
and California Education Code include procedures to safeguard
your child's right to a free and appropriate education—Due
Process and Compliance Complaint Procedures.
Before you get embroiled in these formal procedures,
there are other ways you should try to resolve problems. Try these
steps first:
- 1. Talk to your child's teacher.
- 2. Talk to the Case Manager.
- 3. Talk to the School Principal.
- 4. If your issue is still not resolved, talk to the Director/Coordinator
of Special Education.
If these informal meetings don't produce results,
then go to the formal procedures—Due
Process or Compliance Complaint
Procedures—which are conducted at no cost to
the parent.
PAYMENT FOR EDUCATION OF CHILDREN
ENROLLED IN PRIVATE SCHOOLS WITHOUT CONSENT OR REFERRAL BY THE
SCHOOL DISTRICT
1. Students enrolled in private school where a free, appropriate
public education (FAPE) is not at issue:
School districts have the responsibility to offer a free, appropriate
public education to students with disabilities whose parents
have chosen to enroll them in private schools, but that responsibility
is significantly limited. Federal law limits the amount that
school districts may spend for these services to a proportionate
share of federal Individuals With Disability Education Act (IDEA)
funds. The school district must seek input from representatives
of private school students, but the school district determines
which services will be provided.
A child with a disability enrolled in a private school does
not have an individual right to receive some or all of the special
education and related services that he/she would receive if
enrolled in a public school. Due process procedures are unavailable
to private school parents for resolving concerns about services
provided. Parents may, however, file a complaint.
2. Students enrolled in private school where the provision
of FAPE is at issue:
Parents may be entitled to reimbursement for costs associated
with having unilaterally withdrawn their child from the public
school and placed them in a private school only if a court or
hearing officer determines that the public agency had not made
a free, appropriate public education (FAPE) available to the
child.
Parents seeking reimbursement for unilaterally placed private
school students based on the allegation that the public school
failed to provide free, appropriate public education may have
those reimbursements reduced or denied if they do not provide
the school district at the most recent IEP meeting with information
describing the nature of their concerns relating to the public
placement and a proposed resolution to the problem; their intent
to reject the public school placement and enroll their child
in a private school at public expense. Parents must give written
notice to the school district containing the above information
at least ten (10) business days prior to the child's removal
from a public school placement; they must make their child available
if the LEA notifies of their intent to evaluate the student.
Reimbursement for private school placement by a parent may also
be denied or reduced if a judge finds the parent's actions unreasonable.
Exceptions to this are: 1) parent cannot write English; 2)
compliance is likely to result in physical or serious emotional
harm to the child; 3) the school district prevented the parent
from providing such notice; and 4) the parents did not receive
the notice informing them of the required contents of the parent's
notice to the school district; namely, the name and residence
of the child, the name of the school the child is attending,
a description of the nature of the problem relating to the proposed
initiation or change, including facts relating to such problems,
and the proposed resolution of the problem to the extent known
and available to the parents at the time.
Due Process versus Compliance Complaint
Although due process hearings and compliance
complaints are often confused, the primary difference is this:
when there is a disagreement about some part of a child's
special education program, then a due process hearing is
appropriate; when the educational agency may have violated
a part of the law, then a compliance complaint is appropriate.
In other words, a due process hearing involves a disagreement,
while a compliance complaint involves a failure by the educational
agency to follow the rules.
Due
Process Hearing
When 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. An independent hearing
officer (hired by the state) decides which side is correct and
what relief is necessary. When the educational agency appears
to have violated a part of
special education law (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 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 State
Department of Education. An investigator talks to both sides and
then decides whether the complaint is justified and what action
(if any) should be taken.
There are three levels to the hearing process:
- 1. Informal Conference: a meeting between the district
and parent to informally resolve the disagreement.
- 2. Mediation Conference: an informal meeting between
the district, parent, and a state mediator to informally negotiate
the disagreement. This conference must be scheduled by the State
within 15 days of the receipt of the request for a hearing.
- 3. Formal Administrative Fair Hearing: a formal hearing
conducted by a hearing officer from the Office of Administrative
Hearings. This step must be held and a decision made within
45 days of the State's receipt of the request for a hearing.
You may request to have only a Mediation
Conference prior to requesting a Formal Administrative Fair Hearing.
If the issue is not resolved through mediation, you can still
request the formal hearing. If you choose to try this avenue first,
be sure to make that known in writing when you make the request
for a hearing.
Your request should give a description of the
problem(s), your child's name, the name of the school district,
and your name, address and telephone number.
When you make your written request for a due
process hearing, you should also ask for a copy of the Special
Education Hearing Office Practice and Procedures Bulletin No.
90-1, dated December 20, 1990, and any amendments or updates to
it, so that you know all the rules under which the hearing will
be conducted.
Hearing requests must be made in writing
and sent to:
Special Education Hearing Office
Institute for Administrative Justice
McGeorge School of Law
3200 Fifth Avenue
Sacramento, CA 95817
If you wish to speak to someone from McGeorge
School of Law, the number is 916-739-7053.
You must also send a copy to the school district.
[CA. Ed. Code Sec. 56502.]
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. [CA. Ed. Code Sec. 56502.]
Compliance
Complaint Procedures
If you believe the school district is not complying
with legal regulations, such as following your child's IEP,
you may file a complaint. Complaints may be filed with
the superintendent of the local agency or sent directly to:
California Department of Education
Special Education Division
Procedural Safeguards Referral Service
515 L Street, Room 270
Sacramento, CA 95814 (1-800-926-0648)
Within 5 days, the State must review the complaint
to decide if it is a matter for State or local investigation.
If the State investigates the complaint, a determination must
be made within 30 days. You can for further information.
Civil Rights Issues
It is the responsibility of the Office For Civil
Rights in the Department of Education and the Office of Civil
Rights in the Department of Health and Human Services to enforce
Federal laws prohibiting discrimination against persons on the
basis or race, color, national origin, sex, age or mental and
physical handicaps and to investigate discrimination complaints
brought by individuals.
If you feel your rights have been violated—because
of your disability or your child's disability—by an educational
institution receiving federal assistance, detail your concerns
and send to:
Office For Civil Rights
U.S. Department of Education
50 Beale Street, Suite 7200
San Francisco, CA 94105 (1-415-486-5555)
If you feel your rights have been violated—because
of your disability or your child's disability—by an institution
receiving federal assistance, such as hospitals, social services,
etc., detail your concerns and send to:
Office For Civil Rights
U.S. Department of Health and Human Services
50 United Nations Plaza, Room 322
San Francisco, CA 94120 (1-415-556-8586)
DUE
PROCESS HEARINGS: Parent Information (FAQ) Frequently Asked
Questions:
1.
What happens to my child if I file for a due process hearing?
Under federal law, your child will remain in
his current educational placement and have his 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. This "status
quo" can be altered only if the parents and local agency
agree to a change in placement or services. This protection is
sometimes called the "stay-put" provision. [20 U.S.C.
Sec. 1415(e)(3); 34 C.F.R. Sec. 300.513; CA. Ed. Code Sec. 56505(d).]
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 CA.
Ed. Code Sec. 56500.3.
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2.
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);
CA. Ed. Code Sec. 56501(a).]
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3.
Once a request for a due process hearing is made, how long does
the DOE have to hold the hearing and make a decision?
The Department of Education (DOE) has 45 days
from the day it receives the due process hearing request to make
a decision. [34 C.F.R. Sec. 300.512; CA. Ed. Code Sec. 56502(a).]
A continuance for good cause can be granted upon request. [CA.
Ed. Code Sec. 56505(9).]
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4.
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. [CA. Ed. Code Sec. 56505(b).]
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5.
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, meaning that witnesses cannot be present
at the hearing to hear the testimony of other witnesses. [CA.
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 their
advocate.
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6.
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.
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7.
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 his/her
case, respondent calls his/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. 300508(a)(2)}
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8.
What is the record?
The record is simply all evidence (written or
oral, other than opening and closing statements) submitted to
the hearing officer. 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 if you ask
for it. [34 C.F.R. Sec. 300-508(a)(4); CA. Ed. Code Sec. 56505(e)(4).]
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9.
Are experts allowed to 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. Usually the expert witness can assess your child and the
various components of the programs at issue and- make a professional
observation as to is and is not appropriate for your child.
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10.
How are expert witnesses used?
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, 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.
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11.
What if a witness does not want to attend?
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 Practice and Procedures Bulletin 90-1, pages 8
and 9; it is available from the Special Education Hearing Office
where you made your request for a due process hearing.) The 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); CA. Ed. Code
Sec. 56505(e)(3)]
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12.
Can I represent myself at the due process hearing?
You can represent yourself at the hearing. However,
you should consult with an advocate or attorney about the procedure
and strategy.
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13.
Can I have a lawyer at the due process hearing or mediation?
Yes. So can the educational agency. [34 C.F.R.
Sec. 300.508 (a)(1).] Anyone who chooses to be represented by
an attorney at the due process hearing must notify the other party
10 days prior to the hearing. [CA. Ed. Code Sec. 56507.1}
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14. 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 the court may award you reasonable attorneys' fees. Attorneys'
fees are generally not available when you have an attorney represent
you at an IEP meeting. [20 U.S.C. Sec. 1415(e)(4).]
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.
If so, you should discuss this with your lawyer. Other specific
details regarding the federal attorneys' fee law cannot be included
here. However, you can review these laws with your lawyer at the
time you hire him.
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15.
If I lose the due process hearing, can I do anything?
Both sides have the right to go to court and
appeal the decision made by the due process hearing officer. Any
appeal to court must be riled within 90 calendar days of receipt
of the administrative hearing decision. [34 C.F.R. Sec. 300.51
1; CA. Ed. Code Sec. 56505(i).]
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