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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.
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.
BACK
TO FAQ LIST
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).]
BACK
TO FAQ LIST
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).]
BACK
TO FAQ LIST
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).]
BACK
TO FAQ LIST
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.
BACK
TO FAQ LIST
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.
BACK
TO FAQ LIST
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)}
BACK
TO FAQ LIST
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).]
BACK
TO FAQ LIST
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.
BACK
TO FAQ LIST
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.
BACK
TO FAQ LIST
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)]
BACK
TO FAQ LIST
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.
BACK
TO FAQ LIST
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}
BACK
TO FAQ LIST
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.
BACK
TO FAQ LIST
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).]
BACK
TO FAQ LIST
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.
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