There are times when the parents of a student with a disability and the district cannot resolve conflicts regarding the student’s education. IDEA has set up a process for resolving these conflicts called “due process”. It is important to understand due process in case you ever find yourself in a special education conflict. This is a general guideline. If you are having a conflict with your district it is important to seek legal advice.
OFFICE OF ADMINISTRATIVE HEARINGS (“OAH”)
Special education due process in California is handled by OAH. Cases filed with OAH are heard by administrative law judges. OAH also provides mediation and settlement services.
FILING FOR DUE PROCESS
Due process starts when a parent files a written complaint against the district. The complaint must contain a description of the problem and the resolution sought through due process.
MEDIATION
Mediation is a process where a neutral party helps resolve the conflict between the parties. The mediator tries to facilitate a mutually satisfactory agreement. Mediation is voluntary.
IMPORTANT TIMING GUIDELINES
A due process complaint must be brought within 2 years of the alleged violation.
Parent-filed cases: Under state and federal law, OAH has 75 days to issue its decision. This includes the 30-day resolution period.
District-filed cases: Under state and federal law, OAH has 45 days within which to issue its decision. This is shorter because mediation is not required.
Expedited hearings (i.e. for disciplinary issues): OAH will hold a hearing within 20 school days from the date the request is filed. A decision by OAH will be issued within 10 school days after the hearing. Mediation will be on the 10th day after filing the complaint.
Mediation only: OAH will schedule mediation within 15 days of filing the request for mediation only.
A party has 90 days after receipt of OAH’s decision to file an appeal.
TYPES OF DISPUTES
Due process complaints are typically based on substantive issues. The following is a list of some of the most common disagreements which can lead to mediation and/or due process hearings:
1.) Eligibility;
2.) Placement issues; and
3.) Need for different or more special education services.
Although not as common, procedural issues may result in due process. For example, the a district cannot deny a request for an Independent Educational Evaluation. They are required to file a due process complaint. Another procedural issue might be a parent’s exclusion from participation in an IEP meeting.
DUE PROCESS HEARING
A due process hearing is just like a court trial. Each party is allowed to present evidence and witnesses. The hearing must be held at a place reasonably convenient to the parent and student. This is usually the school site.
RIGHT TO AN ATTORNEY
A party to a due process case may be represented by an attorney at the hearing. In certain cases, if you win, you are able to recover reasonable attorney’s fees. The district may request reimbursement of attorney’s fees in cases they win where the filing party if the case is frivolous or was intended to harass or delay.
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