Due Process Complaints and Hearings
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Filing a Due Process Complaint
If a parent is unable to find a resolution with the IEP team, the school district’s special education director, or the Special Education Local Planning Area (SELPA), they may file a due process complaint. A resolution session and/or mediation will be scheduled. If the mediation is unsuccessful, then a due process hearing will be held.
Before parents file a complaint, they should talk to someone who is an expert in special education law. A child’s service coordinator can direct a parent towards resources in this area that can help them better understand the law and prepare them for the due process hearing.
Complaints should be made in writing. The request should include:
- The child’s name and home address
- The name of the child’s school
- The parent’s name, address and phone number
- A description and the facts of the dispute. Make sure to include all information because one cannot raise an issue later in a hearing that was not in this complaint statement.
- A proposed solution
The party filing a due process complaint must file the complaint with the Office of Administrative Hearings. The request should be sent to:
Office of Administrative Hearings Special Education Division
2349 Gateway Oaks Drive, Suite 200
Sacramento, CA 95833
Telephone: 916.263.0880
A copy should also be sent to the school district.
Check out the Self-Help Information for Special Education Cases from The Office of Administrative Hearings
Timelines Related to Due Process
There are strict timelines for due process. The time begins when the school district receives the parent’s due process complaint. (Please note: either party, the parent or the school district, may request an extension to the timelines below. If granted, the process is typically not completed within the 45-day timeline described below.)
- Within three days of the school district receiving a parent’s complaint, the school district must tell the parent about free or low-cost legal services available to advise the parent on due process.
- Within 15 days of filing a complaint, parents must go through a mandatory “resolution session” before due process occurs. The school district has 30 days from the filing date to resolve the complaint to the satisfaction of the parents. The parent and the school may also, at any time, decide to attend a mediation hearing to try to reach an agreement. If the parent and the
- school agree to use this option, a trained mediator sent by the State will meet with the parent and the school to attempt to find a resolution. The mediator has no power to force either side to accept a resolution.
- Within 30 days, a formal hearing must take place if the mediation or resolution session has not resulted in an agreement. The hearing usually takes place at the school district offices. The hearings are generally open, which means members of the public can attend. However, either you or the school district may request that the hearing be closed.
- Within 45 days of the initial complaint filing, the hearing officer issues a written decision and mails it to you and the school.
What does “stay put” mean?
If a parent files a due process complaint, IDEA says that the child must remain in his or her educational placement at the time of the request, from the time a parent files the complaint until the due process hearing proceedings and any subsequent court appeals are completed. During this time, the child’s current IEP, including all related services, must be fully implemented. This provision is usually referred to as “stay put.
Parents’ Due Process Rights
Parents have the right…
- To have the hearing occur within a specific time period after the written request is received.
- To be represented by an attorney and to be informed about available free or low-cost legal services.
- To voluntarily attend a mediation conference prior to the hearing, in an attempt to find a resolution.
- To have the due process hearing conducted by an impartial hearing officer.
- To present evidence, question, cross-examine and require the attendance of witnesses.
- To prevent the introduction of evidence that has not been disclosed to the parent at least five days before the hearing.
- To obtain a transcript of the hearing.
- To obtain a written report of the findings and decisions of the hearing officer.
- To appeal the final decision to the State Superintendent of Public Instruction.
- To file a lawsuit in state or federal court if the issue is still not resolved to the parent’s satisfaction.
Preparing for the Hearing
In preparing for the hearing, parents should develop a written outline of their case, with topics in the order they will present them. Parents should state very clearly and specifically the issues that they want the hearing officer to make a decision about.
Both sides may submit documents and select witnesses to support their position and testify at the hearing or provide written testimony. Each party must give documents and witness lists to the other party at least five days before the hearing. These lists should also be submitted to the Special Education Hearing Office at least seven days before the hearing.
Parents should consider having at the meeting another person who can act as an advocate for them. This person may be a lawyer, but does not have to be. It may be another parent who is knowledgeable about special education law.
Since the rules regarding special education can be quite complicated, parents may want to consider consulting with a lawyer who knows special education law to get advice prior to the due process hearing.