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SELPA

S.E.L.P.A. RESOURCES
Due Process and Compliance Complaint Procedures

California State Council for Exceptional Children (CSCEC)
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Council for Exceptional Children
Council for Exceptional Children

The voice and vision of special education

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Special Education information for Parents

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?
2. Can the local education agency request a due process hearing?
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?
4. Where is the due process hearing held?
5. Who attends the due process hearing?
6. Is the due process hearing a trial or like court?
7. How does the hearing proceed?
8. What is the record?
9. Are experts allowed to testify at a due process hearing?
10. How are expert witnesses used?
11. What if a witness does not want to attend?
12. Can I represent myself at the due process hearing?
13. Can I have a lawyer at the due process hearing or mediation?
14. Can I get the public education agency to pay for my attorney and expert witnesses?
15. If I lose the due process hearing, can I do anything?

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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