Parents' Rights

Office of Administrative Hearings ("OAH")

Attn: Special Education Division

2349 Gateway Oaks Drive, Suite 200

Sacramento, CA  95833-4231

Phone: 916-263-0880

Fax: 916-263-0890

 

The request for a due process hearing must be filed within two years from the date you knew or had reason to know of the facts that were the basis for the hearing request. This timeline does not apply to you if you were prevented from requesting a due process hearing earlier because the LEA: (1) misrepresented that it had resolved the problem which is the basis of your request; or (2) withheld information from you relating to the information contained in this notice. The LEA must inform you of any free or low-cost legal or other relevant services available in the area if you request that information, or if either you or the LEA files a due process complaint.

Your due process hearing complaint must include the following information: (1) your child's name; (2) your child's address (or, in the case of a homeless child, the available contact information); (3) the name of the school your child attends; (4) a description of the problem relating to the proposed initiation or change, including specific facts about the problem; and (5) proposed resolution to the problem to the extent it is known to you. You must provide the LEA with a copy of your request for due process. You (or the LEA) may not have a due process hearing until a due process hearing complaint that contains all of the information outlined above is filed.

The complaint will be deemed sufficient to meet the above requirements unless, within fifteen days of the date that the party who received the complaint notifies the hearing officer and the other party that it believes the complaint does not meet the requirements listed above. Within five days of receiving notice that the receiving party believes the complaint is insufficient, OAH must decide if the due process complaint meets the requirements listed above and they will notify you and the LEA in writing if it is insufficient. If OAH determines that a due process complaint is insufficient, the party may have the opportunity to file a new complaint that meets the requirements listed above.

 

If you file a request for a due process hearing, within 10 days of receiving the complaint, the LEA must send you a response that specifically addresses the issues raised in your complaint. Within 15 days of receiving your request for due process, the LEA must convene a meeting with you, the relevant member(s) of your child's IEP team who have specific knowledge of the facts identified in the due process hearing request, and a LEA representative who has decision-making authority, to discuss a resolution to the issues raised. The meeting will not include the LEA's attorney, unless you are accompanied by an attorney.

 

Except where you and the LEA have both agreed, in writing, to waive the resolution process or to use mediation, your failure to participate in the resolution meeting will delay the timelines for the resolution process and due process hearing until you agree to participate in a meeting. If the LEA fails to hold the resolution meeting within 15 days of receiving notice of your complaint or fails to participate in the resolution meeting, you may seek the intervention of a hearing officer to begin the due process hearing timeline described below.

If an agreement is reached at the resolution session, the agreement must be memorialized in writing and signed by both you and the LEA representative. After signing, both you and the LEA have 3 business days to void the agreement. If the LEA has not resolved the due process complaint to your satisfaction within 30 days of the receipt of the due process complaint (during the time period for the resolution process), the due process hearing may occur, and the applicable timeline for issuing a final decision begins. If the LEA is unable to obtain your participation in the resolution meeting after reasonable efforts have been made and documented, the LEA may, at the conclusion of the 30-day period, request that the hearing officer dismiss your complaint.

You and the LEA may agree, at any time prior to or during the due process hearing to participate in a mediation of the dispute. An impartial mediator will be appointed by OAH at no cost to either party. Mediation extends OAH’s timeline to render its decision; however, mediation is not intended to deny or delay your right to a hearing, or any other rights.

If the issues which gave rise to the request for due process are not resolved by the resolution session or mediation, OAH must hold a hearing, reach a final decision on the issues in the case, and send a copy of the decision to the parties within 45 days of the expiration of the 30-day resolution period. The 45-day timeline for the decision may also start the day after one of the following events: (1) both parties agree in writing to waive the resolution meeting; (2) after either the mediation or resolution meeting starts, but before the end of the 30-day period, the parties agree in writing that no agreement is possible; or (3) if both parties agree in writing to continue the mediation at the end of the 30-day resolution period, but later, the parent or LEA withdraws from the mediation process.

The hearing must be held at a time and place that is reasonably convenient to the parties. The party requesting the hearing may not raise issues at the hearing that were not addressed in the due process complaint, unless the other party agrees.
Any party to a due process hearing has the right to: (1) a fair and impartial administrative hearing before a person knowledgeable in laws governing special education and administrative hearings; (2) be represented by an attorney or an individual with knowledge and training related to the problems of children and youth with disabilities; (3) present evidence, written arguments, and oral arguments; (4) confront, cross-examine, and require witnesses to be present; (5) obtain a written or at your option, electronic verbatim record of the hearing; (6) obtain written or at your option, electronic findings of fact and decisions, within 45 days after the expiration of the resolution session time period; (7) receive notice from the other party, at least ten days prior to the hearing, that it intends to be represented by an attorney; (8) be informed by the other party, at least 10 days prior to the hearing, of their issues and their proposed resolutions; (9) 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 at least 5 business days before the hearing; and (10) prohibit the introduction of any evidence, including assessments and recommendations based on the assessment(s), at the hearing that has not been disclosed to that party at least 5 business days before the hearing; (11) have an interpreter provided; and (12) request an extension of the hearing timeline for good cause.

Parents involved in hearings must be given the right to: (1) have his/her child present at the hearing; (2) have the hearing open to the public; and (3) have the record of the hearing and findings of fact and decisions provided at no cost.

A hearing officer’s decision on whether your child received a FAPE must be based on evidence and arguments that directly relate to FAPE.  In matters alleging a procedural violation (such as “an incomplete IEP Team”), a hearing officer may find that your child did not receive FAPE only if the procedural violations:

The provisions described above do not prevent a hearing officer from ordering a school district to comply with the requirements in the procedural requirements of the IDEA, or preclude you from filing another due process complaint on an issue separate from a due process complaint already filed.

 

The hearing decision is final and binding on both parties. Either party may appeal the decision by filing an appeal in the appropriate court. In a civil action, the records and transcription of the administrative proceedings will be filed with the court. The court may hear additional evidence at the request of either party and must base its decision on preponderance of the evidence. This appeal must be made within ninety (90) days after the date of the decision of the Administrative Law Judge.

 

Once a request for due process is received by the LEA, during the resolution process time period, and while waiting for the decision of any impartial due process hearing or court proceeding, the child must remain in his or her current educational placement, unless the parent and the LEA agree otherwise.

If your request for due process involves an application for initial admission to public school, your child, with your consent, must be placed in the general public school program until the completion of all such proceedings.

If your request for due process involves an application for initial services for a child who received services pursuant to an individual family services plan ("IFSP"), and has turned 3, the LEA is not required to provide the IFSP services that your child had been receiving. If your child is found eligible for special education services from the LEA, and you consent for your child to receive special education services for the first time, then, pending the outcome of the due process proceedings, the LEA must provide those special education and related services that are not in dispute (those which you and the LEA both agree upon).

If your child has been placed in an interim alternative educational setting ("IAES"), he or she will remain in the IAES for a maximum of 45 school days pending the due process hearing, or until the expiration of the time period for the IAES, whichever occurs first.

 

A court, in its discretion, may order that a LEA pay reasonable attorneys’ fees to the parent of a child with disabilities if the parent prevails at a due process hearing. Additionally, the LEA may be awarded attorneys’ fees against the attorney of a parent who files a complaint or subsequent cause of action that is frivolous, unreasonable, or without foundation, or who continued to litigate after the litigation clearly became frivolous, unreasonable, or without foundation. The LEA may also be entitled to attorneys’ fees against the attorney of a parent, or against the parent, if the parent’s complaint or subsequent cause of action was presented for any improper purposes, such as to harass, to cause unnecessary delay, or to needlessly increase the cost of litigation.

A court may reduce the amount of attorneys’ fees if: (1) the parent has unreasonably delayed the proceedings; (2) the fees unreasonably exceed the prevailing hourly rate in the community; (3) the time spent and legal services were excessive; (4) or the parent’s attorney did not provide the LEA with an appropriate due process complaint. However, the court may not reduce fees if the court finds that the LEA unreasonably delayed the final resolution of the action or proceeding, or there was a violation under the procedural safeguards provisions of the IDEA.

A parent may not obtain additional attorneys’ fees or costs incurred after the rejection or failure to respond within 10 days to an offer of settlement that is made by the LEA, at any time more than 10 days before the hearing or court action, if the hearing officer or court finds that the relief finally obtained by the parents is not more favorable to the parents than the LEA’s offer of settlement. Despite these restrictions, an award of attorneys’ fees and related costs may be made to a parent if you prevail and the court determines you were substantially justified in rejecting the settlement offer.

Attorneys' fees may not be awarded to an attorney for attendance at an IEP team meeting unless the meeting has been convened as a result of an administrative proceeding, or a judicial action. A resolution meeting is not considered a meeting convened as a result of an administrative hearing or court action, and also is not considered an administrative hearing or court action for purposes of the attorneys’ fees provisions.

School personnel may consider any unique circumstances on a case-by-case basis when determining whether a change in placement is appropriate for a child with a disability. School personnel may remove a child with a disability who violates a code of student conduct from his or her placement to an appropriate interim alternative educational setting (IAES), another setting, or suspension, for up to 10 consecutive school days (to the extent those alternatives are applied to children without disabilities) and for additional removals of not more than 10 consecutive school days in one school year for separate incidents of misconduct, so long as those removals do not constitute a change in placement.

A “change in placement” occurs if: the removal is for more than 10 consecutive school days, or the child has been subjected to a series of removals that constitute a pattern because : (1) the series of removals total more than 10 school days in a school year; (2) the child’s behavior is substantially similar to the child’s behavior in previous incidents resulting in the series of removals; and (3) additional factors such as the length of each removal, total amount of time the child is removed, and the proximity of the removals to one another. The LEA determines on a case-by-case basis whether a pattern of removals is a change in placement.

If a child with disabilities is removed from his/her placement due to a violation of the code of student conduct for a period in excess of 10 consecutive school days, or 10 cumulative days when such suspensions constitute a change in placement, the LEA must hold an IEP team meeting to determine whether the behavior subject to discipline was a manifestation of your child’s disability. This meeting will be held within 10 school days of the decision to change the child’s placement. The IEP team will determine whether the conduct in question was: (1) caused by, or had a direct and substantial relationship to, your child’s disability; or (2) the direct result of the LEA’s failure to implement the child's IEP.

If the LEA, parent, and relevant members of the IEP team determine that the conduct was a manifestation of the child’s disability, the IEP team must either: (1) conduct a functional behavioral assessment, unless one had been conducted prior to the child’s behavior that resulted in a change of placement, and implement a behavior intervention plan; or (2) review any existing behavioral intervention plan and modify it as necessary. In addition to one of the above options, the IEP team must also return the child to the placement from which he or she was removed, unless the parent and LEA agree otherwise in modifying the behavior intervention plan.

If the team determines that the conduct was not a manifestation of the child’s disability, the school personnel may apply the disciplinary procedures in the same manner and for the same duration as the procedures would be applied to children without disabilities. A child with a disability must continue to receive educational services, so as to enable him or her to continue to participate in the general education curriculum, although in another setting, and to progress toward meeting his or her IEP goals. The child’s IEP team will determine the appropriate services and setting for those services. As appropriate, the child must also receive a functional behavioral assessment and behavior intervention services and modifications designed to ensure the behavior violation does not recur.

Parents have the right to appeal a decision to suspend or expel special education students or the decision of whether the child’s conduct was a manifestation of his or her disability, by filing a due process complaint. When an appeal has been requested by either the parent or the LEA relating to the disciplinary placement of a child or the results of the manifestation determination meeting, the state shall arrange for an expedited hearing, which shall occur within 20 school days of the date the hearing is requested and shall result in a determination within 10 school days after the hearing. Your child is entitled to a stay put placement during appeals; however, if your child is placed in an IAES for 45 school days, placement will remain in that setting pending the decision by the hearing officer or until the expiration of the time period of the suspension, whichever occurs first.

If an evaluation of the child is requested when disciplinary action is pending, the evaluation shall be conducted in an expedited manner. Pending such an evaluation, the child shall remain in an educational setting determined by school authorities.

A child who has not previously been determined to be eligible for special education and related services may assert any of the protections provided under the IDEA if the LEA had knowledge that the child was a child with a disability before the occurrence of the behavior that caused disciplinary action. Knowledge shall be deemed if: (1) the parent expressed in writing to supervisory or administrative personnel of the school district, or the teacher of the child, that the child was in need of special education and related services; (2) the parent had requested an evaluation of the child; or (3) school personnel had expressed to the Special Education Director of the LEA or to other supervisory personnel specific concerns about a pattern of behavior demonstrated by the child. The LEA is not deemed to have knowledge if the parent has not allowed an evaluation of the child or has refused special education services or the child has been evaluated and it was determined that the child was not eligible for services. If the LEA did not have knowledge of the disability, the child will not receive the due process protections of the IDEA.

School officials are not prohibited by special education laws from reporting a crime committed by your child to appropriate authorities. An LEA reporting a crime committed by a child with a disability must ensure that copies of the child’s special education and disciplinary records are transmitted for consideration by the appropriate authorities, but only to the extent permitted by FERPA.

Under special circumstances, regardless of whether the child’s behavior was a manifestation of his or her disability, school personnel may remove a student to an IAES for a period not to exceed 45 school days when a child has committed one of the following offenses at school, on school premises or at a school function under the jurisdiction of a state or LEA: (1) carried or possesses a weapon; (2) knowingly possessed or used illegal drugs, or sold or solicited the sale of controlled substances; (3) inflicted serious bodily injury upon another person. If the LEA has not already done so, after placing the child in a 45 school day IAES, the LEA shall conduct a functional behavioral assessment and implement a behavioral intervention plan (if one has not already been implemented). If such a plan is already in place, the IEP team shall consider its modification. The IAES shall be affirmed by the IEP team if it will enable the child to continue to participate in the general curriculum and to receive those services and modifications, including those described in the child’s current IEP, to meet the goals set out in the IEP and provide the modifications to address the offending behavior.

Under federal law, a hearing officer may return a child with a disability to the placement from which the child was removed. The hearing officer may also order a change of placement to an appropriate IAES for not more than 45 school days, if the hearing officer determines that maintaining the current placement of such child is substantially likely to result in injury to the child or to others.

 

The State Special Schools provide services to students who are deaf, hard of hearing, blind, visually impaired, or deaf-blind at each of its three facilities: the California Schools for the Deaf in Fremont and Riverside and at the California School for the Blind in Fremont. Residential and day school programs are offered to students from infancy to age 21 at both State Schools for the Deaf and from ages 5 through 21 at the California School for the Blind. The State Special Schools also offer assessment services and technical assistance. For more information about the State Special Schools, please visit the California Department of Education Web site at http://www.cde.ca.gov/sp/ss/ ask for more information from the members of your child’s IEP team or contact the SELPA Director.

 

The IDEA does not require an LEA to pay for the cost of education, including special education and related services, for your child with a disability at a private school or facility if the LEA made a FAPE available to your child and you choose to place the child in a private school or facility. However, the school district where the private school is located must include your child in the population whose needs are addressed under the IDEA provisions regarding children who have been placed by their parents in a private school under 34 CFR §§300.131 through 300.144.

The reimbursement to a parent for placement of a child in a private school or agency may be ordered by a hearing officer or court when it is determined that the LEA did not provide a FAPE to the child in a timely manner prior to the enrollment and that the private placement is appropriate. Reimbursement may be reduced if, at the most recent IEP team meeting prior to removing the child from public school, the parent failed to inform the LEA that they were rejecting the proposed placement and of their intent to place their child in a private school at public expense, or if the parent failed to provide that information in writing to the LEA at least 10 business days prior to the removal of the child from public school. Reimbursement may also be reduced if, prior to the removal of the child from public school, the LEA informed the parent of its intent to evaluate the child, and parent refused to permit or did not make the child available for the evaluation. Reimbursement may also be reduced if a court finds that your actions were unreasonable.

Reimbursement cannot be reduced if the LEA prevented the parent from giving notice; the parent had not received notice of the requirements to provide notice to the LEA as described above; or if compliance with the notice requirement would likely result in the physical harm to the child. The cost of reimbursement may or may not be reduced, at the discretion of the court or hearing officer, if the parent is not literate or cannot write in English, or compliance with the notice requirement would likely result in serious emotional harm to the child.

 

1. The child has been made a dependent or ward of the court, the court has specifically limited the right of the parent or guardian to make educational decisions for the child, and the child has no responsible parent or guardian to represent him or her; or
2. The child is not a ward or dependent of the court and no parent or guardian can be located, or there is no caretaker of the child or the child is an unaccompanied homeless youth.

• You may refuse to sign the section of the IEP regarding Medi-Cal consent.
• Information about your child and family is strictly confidential.
• Your rights are preserved under Title 34 Code of Federal Regulations 300.154; Family Education Rights Privacy Act of 1974, Title 20 of the United States Code, Section 1232 (g), Title 34 Code of Federal Regulations, Section 99.
• This consent is good for one year unless you withdraw your consent before that time. It can be renewed annually at the IEP meeting.

• May not require parents to sign up for or enroll in public benefits or insurance programs (Medi-Cal) in order for their child to receive FAPE under Part B of the IDEA (34 CFR 300.154 [d][2][i]).
• May not require parents to incur an out-of-pocket expense such as the payment of a deductible or co-pay amount incurred in filing a claim for services and reimbursement through Medi-Cal. However, the LEA may pay the cost, such as a co-pay, that you otherwise would be required to pay (34 CFR 300.154[d][2][ii]).
• May not use a student’s benefits under Medi-Cal if that use would:
  • Decrease available lifetime coverage or any other insured benefit.
  • Result in the family paying for services that would otherwise be covered by the public benefits or insurance program (Medi-Cal) and are required for the child outside of the time the child is in school.
  • Increase premiums or lead to the discontinuation of public benefits or insurance (Medi-Cal).
  • Risk loss of eligibility for home and community-based waivers, based on aggregate health related expenditures (34 CFR 300.154[d][2][iii][A-D]).