• Formal Due Process

     

    Due process hearing proceedings are dispute resolution proceedings required to be available to parents and school districts by the Individuals with Disabilities Education Act (IDEA). You or the District may file a due process complaint on any matter relating to a proposal or refusal to initiate or change the identification, evaluation or educational placement of your child or the provision of a free appropriate public education (FAPE) to your child. The proceedings begin with the submission of a complaint notice and include a resolution period with a mandatory resolution session meeting, optional mediation, and a due process hearing before an impartial hearing officer. The District convenes the resolution session meeting. The Office of Administrative Hearings (OAH) conducts the optional mediation and the due process hearing. It may not be necessary to go through all of the due process proceedings to reach resolution. A due process complaint may be resolved by mutual agreement of the parties at any stage of the proceedings.

     

    How do I file for a Due Process hearing?

     

    1. Submission of a Due Process Complaint Notice

    To initiate due process proceedings you must submit a written due process complaint notice that contains the following information: (1) the name of the child, (2) the address of the residence of the child or available contact information for the child if the child is homeless, (3) the name of the school the child is attending, (4) a description of the nature of the problem, and (5) a proposed resolution to the problem to the extent known and available at the time. The statute of limitations for due process complaints is two years. This means that your complaint notice must allege a violation that happened no more than two years prior to the date of the complaint notice. This timeline will apply unless you could not file a complaint notice earlier because the District specifically misrepresented that it resolved the issues identified in the complaint or the District withheld information from you that it was required to provide.

    OAH has a due process Request for Mediation and Due Process Hearing form. You may obtain a copy of the form online at www.dgs.ca.gov/oahIf you require assistance or have questions, or do not have access to the internet, you may request assistance from a school administrator.

     

    After you complete the complaint notice, submit it to by mail or facsimile to the following:

     

    1)     Due Process Department

    Division of Special Education

    Los Angeles Unified School District

    333 South Beaudry Avenue, 17th Floor

    Los Angeles, CA 90017

    FAX: (213) 241-8917

     

    2)     Office of Administrative Hearings

    Attention: Special Education Division

    2349 Gateway Oaks Drive, Suite 200

    Sacramento, CA 95833

    Phone: (916) 263-0880

    Fax: (916) 376-6319

               3)     Your child’s District school of attendance or residence. 

     

    In order for a complaint to proceed, it must contain the required information described above. Within fifteen (15) days of receipt of the complaint notice, the party receiving the complaint notice (i.e., the District if you file) may file an objection on grounds that the complaint does not contain the information required by law. If an objection is filed, a hearing officer must render a decision on the sufficiency of the notice within five (5) days, and provide both parties with written notification of the determination.

     

    You may only make changes and submit an amended complaint notice only if: (1) the District approves the changes in writing and is given a chance to resolve the due process complaint through a resolution meeting or (2) a hearing officer grants you permission to amend your complaint at least five (5) days prior to the due process hearing. If your request to amend the complaint is granted, timelines for the resolution period and resolution session (described in the next section) will start again. You may not change your complaint notice after the hearing begins.

     

    2. Resolution Period

    The Individuals with Disabilities Education Act (IDEA), mandates a 30 day resolution period prior to the commencement of a due process hearing. This resolution period is intended to give parents and schools expanded opportunities to resolve disagreements in positive and constructive ways. With respect to the resolution period, IDEA includes the following procedures:

     

    If the District has not sent a prior written notice to you regarding the IEP in dispute, the District is required to send you a written response to your complaint within ten (10) days of its receipt of the due process complaint notice. The District’s response will include, among other things, an explanation of why the District proposed or refused to take the action raised in the complaint notice, a discussion of the options considered, and a description of the information the District used to make the determination. The response may also include a proposed resolution or proposed activity (e.g., re-convening the IEP team meeting) to address the issues raised in the complaint notice.

     

    Within fifteen (15) days of the District’s receipt of the complaint notice, the District will schedule a resolution session. The resolution session is mandatory unless you and the District agree in writing to waive the meeting or agree to use the mediation process instead. Except in those cases where you and the District have agreed in writing to waive the resolution session, your failure to participate in the resolution session will delay the timelines for the resolution process and due process hearing. Further, if you fail to participate in a resolution session after the District has made repeated attempts to schedule the session, the District may request that OAH dismiss your due process complaint.

     

    If the District fails to schedule the resolution session within fifteen (15) calendar days of receipt of your complaint notice, or fails to participate in the resolution session, you may ask OAH to order that the due process hearing timelines begin prior to the end of the thirty (30) day resolution period.

     

    The purpose of the resolution session is to discuss your due process complaint and to provide the District and parent(s) with an opportunity to resolve the dispute. The resolution session will include a relevant member or relevant members of the IEP team, a District representative who has decision-making authority, and you. The District may not have an attorney present at the resolution session unless you have an attorney present. If an agreement is reached at the resolution session, the parties will execute a legally binding written settlement agreement. Either party may void the agreement within three (3) business days of the date on which it was signed. If the signed agreement is not voided within the three (3) business days, the agreement will become legally binding and enforceable in a state or federal court.

     

    If your complaint has not been resolved to your satisfaction within thirty (30) days of the date the District received the complaint notice, the applicable timelines for a due process hearing shall commence.

     

    3. Optional Mediation

    Prior to the due process hearing, the parties may elect to participate in a mediation conference. This pre-hearing mediation conference is similar to the conference held during the Mediation Only process except that attorneys and paid advocates may participate in the pre-hearing mediation conference. When a pre-hearing mediation conference is requested, OAH will assign a mediator and schedule a time and date. The role of the mediator is to assist you and the District in resolving the disagreement relating to your child’s IEP. If an agreement is reached at the pre-hearing mediation conference, the terms will be written into a settlement agreement that is enforceable after it is signed by you and a District representative. If the pre-hearing mediation conference does not result in an agreement, the matter will proceed to hearing.

     

    4. Due Process Hearing

    A due process hearing is a more formal resolution process. It is conducted by an OAH administrative law judge or “hearing officer.” Procedurally the hearing is like a trial. Evidence is presented and witnesses testify and are cross examined. Hearing officers may call witnesses, question witnesses, have experts testify, and have the discretion to establish the manner in which the due process hearing will proceed. The role of the hearing officer is to determine whether your child received or was offered a free and appropriate public education (FAPE) under State and Federal law.

     

    The due process hearing must be held and a written decision mailed to all parties within forty-five (45) days of the expiration of the thirty (30) day resolution period, unless the hearing officer grants an extension of time at the request of one or both of the parties. At a due process hearing you and the District have the right to:

     

    • A fair and impartial administrative hearing conducted by a person who is knowledgeable of the laws governing special education and administrative hearings;
    • Be informed of the other party’s issues and proposed resolution(s) at least ten (10) calendar days prior to the hearing;
    • Receive notice of attorney representation from the other party at least ten (10) days prior to the hearing;
    • Receive from the other party a copy of all documents to be used by the other party at hearing, including any evaluations, and a list of witnesses, indicating their general area of testimony, at least five (5) business days before the hearing (failure to provide documents in a timely manner can result in exclusion of the documents);
    • Be accompanied and advised by an attorney and/or individuals who have knowledge about children with disabilities;
    • Present evidence, written arguments, and oral arguments;
    • Confront, cross-examine, and require witnesses to be present;
    • Receive a written or electronic copy of findings of fact and decisions;
    • Obtain a written or electronic record of the hearing (at no cost for parents).

    In addition, you have the right to request that the hearing be open or closed to the public, have your child present at the hearing, and have an interpreter provided.

     

    Decisions of hearing officers are binding on all parties, but may be appealed to a State or Federal Court within ninety (90) days of the final decision. If you are the prevailing party in the decision, you may be awarded reasonable attorneys’ fees either by agreement with the District or by a court. If you are not the prevailing party, a court may award the District its attorneys’ fees against your attorney if the due process complaint is found to be frivolous, unreasonable, or without foundation. A court may also award the District its attorneys’ fees against you or your attorney if the due process complaint was presented or maintained for any improper purpose, such as to harass, to cause unnecessary delay, or to needlessly increase the cost of litigation.

     

    Placement of Student During Due Process Proceedings

    Except for certain alternative educational placements, during the process of resolving a disagreement through a due process hearing, your child will remain in his or her current educational program, and will receive the services he/she was receiving at the time the due process hearing was initiated, unless you and the District agree to some other arrangement. If the disagreement involves an application for initial admission to public school, your child, with your consent, will be placed in the public school program, with only the special education services consented to, until the completion of all proceedings.

     

    If the complaint involves a student who is transitioning from services under Part C of the IDEA (ages 0-3) to services under Part B (ages 3-22) and who is no longer eligible for Part C services because the child has turned three, the District is not required to provide the Part C services that the child has been receiving. Rather, during the due process proceedings the District is required to provide those special education and related services offered in the student’s IEP that are not in dispute.