Due Process and Complaints

Due Process
 "Due Process" is a term used for a legal procedure that seeks to ensure the rights of citizens to be treated fairly. Due process procedures in special education are often used when parents or educational professionals disagree about a child’s identification, evaluation, eligibility, individualized education program (IEP), or placement.

Complaints
Any individual, LEA, or organization may file a written complaint with the superintendent of a local education agency or with the State Superintendent of Public Instruction or the Office of Civil Rights (OCR) alleging a violation of federal or state law or regulation governing special education or related services for an individual student.

An example would be a situation where services are not being provided to a child with a disability in accordance with the student’s Individualized Education program (IEP).

To file a state complaint, contact the Complaints Management and Mediation Unit, Special Education Division, 515 L Street, Suite 270, Sacramento, CA 95814. To file a complaint of OCR, contact OCR at 50 United Nations Plaza, San Francisco, CA 94102.

Difference between a Compliance Complaint and a Due Process Hearing
 The main difference between a compliance complaint and a due process hearing is:

  • When there is a disagreement about what should go into a child’s IEP, or where to implement the IEP, then a due process hearing is appropriate; but

  • When the education agency has not followed special education laws or procedures or has not implemented what is already specifically written into a student’s IEP, then a compliance complaint is appropriate.

  • In other words a due process hearing involves a disagreement over what a child’s program should include, while a compliance complaint involves a failure by the educational agency to follow the rules or to do what has already been agreed to in writing in the IEP.

Parent Rights
A parent has the right to request an impartial due process hearing regarding the identification, assessment, and educational placement of your child or the provision of a free appropriate public education. The request for a due process hearing must be filed within three years from the date the parent knew or had reason to know of the facts that were the basis for the hearing request. (20 USC 1415[a][b]; EC 56501, 56505[j], and 56043[p]).

Due Process Rights

  • Have a fair and impartial administrative hearing at the state level before a person who is knowledgeable of the laws governing special education and administrative hearings (EC 56501[b]);
  • Be accompanied and advised by an attorney and/or individuals who have knowledge about children with disabilities (EC 56505 [e]; 20 USC 1415[h]);
  • Present evidence, written arguments, and oral arguments (EC 56505[e]);
  • Confront, cross-examine, and require witnesses to be present (EC 56505[e]);
  • Receive a written or, at the option of the parent, an electronic verbatim record of the hearing, including findings of fact and decisions (EC 56505[e]; 20 USC 1415 [h]);
  • Have your child present at the hearing (EC 56501[c]);
  • Have the hearing be open or closed to the public (EC 56501[c]);
  • Be informed by the other parties of the issues and their proposed resolution of the issues at least ten calendar days prior to the hearing (EC 56505[e] and 56043[s]; 20 USC 1415[b]);
  • Receive a copy of all documents, including assessments completed by that date and recommendations, and a list of witnesses and their general area of testimony within five business days before a hearing (EC 56505[e] and 56043[t]);
  • Have an interpreter provided (CCR 3082[d]);
  • Request an extension of the hearing timeline (EC 56505[f]);
  • Have a mediation conference at any point during the due process hearing (EC 56501[b]); and
  • Receive notice from the other party at least ten days prior to the hearing that it intends to be represented by an attorney (EC 56507[a]).

Filing a Written Due Process Complaint
A parent or representative will need to file a written request for a due process hearing and submit the following information in the request:

  • Name of the child;
  • Address of the residence of the child;
  • Name of the school the child is attending;
  • A description of the nature of the problem, including facts relating to the problem(s) and a proposed resolution of the problem(s).

State law requires that either party filing for a due process hearing must provide a copy of the written request to the other party. (20 USC 1415[h]; EC 56502[a]) After a written request is filed, a due process hearing is immediately scheduled, including any mediation conference, and must be completed within 45 days of the request, with a written, final decision provided. (EC 56505[f])

Child’s Placement During the Proceedings
The child involved in any administrative or judicial proceeding must remain in the current educational placement unless you and the school district agree on another arrangement. If you are applying for initial admission to a public school, your child will be placed in a public school program with your consent until all proceedings are completed. (20 USC 1415[j]; EC 56505[d] and [i])

Decision Appeal
The hearing decision is final and binding on both parties. Either party can appeal the hearing decision by filing a civil action in state or federal court within 90 days of the final decision. (20 USC 1415[i]; EC 56505[g] and [i]; EC 56043[u])

RESOURCES

OTHER RELATED SELPA RESOURCES


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