Due Process Hearing
When is a due process hearing available?
You have the right to request an impartial due process hearing regarding the identification, assessment, and educational placement of your child or the provision of FAPE. The request for a due process hearing must be filed within two years from the date you knew or should have known about the alleged action that forms the basis of the due process complaint. (20 USC 1415[b]; 34 CFR 300.507; EC 56501 and 56505[l])
Mediation and Alternative Dispute Resolution
May I request mediation or an alternative way to resolve the dispute?
A request for mediation may be made either before or after a request for a due process hearing is made.
You may ask the school district to resolve disputes through mediation or alternative dispute resolution (ADR), which is less adversarial than a due process hearing. The ADR and mediation are voluntary methods of resolving a dispute and may not be used to delay your right to a due process hearing.
What is a pre-hearing mediation conference?
You may seek resolution through mediation prior to filing a request for a due process hearing. The conference is an informal proceeding conducted in a nonadversarial manner to resolve issues relating to the identification, assessment, or educational placement of a child or to a FAPE.
At the prehearing mediation conference, the parent or the school district may be accompanied and advised by nonattorney representatives and may consult with an attorney prior to or following the conference. However, requesting or participating in a prehearing mediation conference is not a prerequisite to requesting a due process hearing.
All requests for a prehearing mediation conference shall be filed with the Superintendent. The party initiating a prehearing mediation conference by filing a written request with the Superintendent shall provide the other party to the mediation with a copy of the request at the same time the request is filed.
The prehearing mediation conference shall be scheduled within fifteen (15) days of receipt by the Superintendent of the request for mediation and shall be completed within thirty (30) days after receipt of the request for mediation unless both parties agree to extend the time. If a resolution is reached, the parties shall execute a legally binding written agreement that sets forth the resolution. All discussions during the mediation process shall be confidential. All prehearing mediation conferences shall be scheduled in a timely manner and held at a time and place reasonably convenient to the parties. If the issues fail to be resolved to the satisfaction of all parties, the party who requested the mediation conference has the option of filing for a due process hearing. (EC 56500.3 and 56503)
Due Process Rights
What are my due process rights?
You have a right to:
- 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 (20 USC 1415[f][A], 1415[f][A]-[D]; 34 CFR 511; EC 56501[b])
- Be accompanied and advised by an attorney and/or individuals who have knowledge about children with disabilities (EC 56505 [e])
- 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])
- Have your child present at the hearing (EC 56501[c])
- Have the hearing be open or closed to the public (EC 56501[c])
- 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 (5) business days before a hearing (EC 56505[e] and 56043[v])
- Be informed by the other parties of the issues and their proposed resolution of the issues at least ten (10) calendar days prior to the hearing (EC 56505[e])
- 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 the other party intends to be represented by an attorney (EC 56507[a]). (20 USC 1415[e]; 34 CFR 506, 300.508, 300.512 and 300.515)
Notice of Procedural Safeguards CDE, T07-037, English, Arial font Page 8 of 13
Filing a Written Due Process Complaint
How do I request a due process hearing?
You need to file a written request for a due process hearing. You or your representative needs to submit the following information in your request:
- Name of the child
- Address of the residence of the child
- Name of the school the child is attending
- In the case of a homeless child, available contact information for the child and the name of the school the child is attending, and
- A description of the nature of the problem, including facts relating to the problem(s) and a proposed resolution of the problem(s)
Federal and state laws require that either party filing for a due process hearing must provide a copy of the written request to the other party. (20 USC 1415[b], 1415[c]; 34 CFR 300.508; EC 56502[c])
Prior to filing for a due process hearing, the school district shall be provided the opportunity to resolve the matter by convening a resolution session, which is a meeting between the parents and the relevant members of the IEP team who have specific knowledge of the facts identified in the due process hearing request. (20 USC 1415[f][B]; 34 CFR 300.510)
What does a resolution session include?
Resolution sessions shall be convened within fifteen (15) days of receiving notice of the parents’ due process hearing request. The sessions shall include a representative of the school district who has decision-making authority and not include an attorney of the school district unless the parent is accompanied by an attorney. The parent of the child may discuss the due process hearing issue and the facts that form the basis of the due process hearing request.
The resolution session is not required if the parent and the school district agree in writing to waive the meeting. If the school district has not resolved the due process hearing issue within thirty (30) days, the due process hearing may occur. If a resolution is reached, the parties shall execute a legally binding agreement. (20 USC 1415[f][B]; 34 CFR 300.510)
Does my child’s placement change 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 of your child 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]; 34 CFR 300.518; EC 56505[d])
May the decision be appealed?
The hearing decision is final and binding on both parties. Either party may 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] and [A], 1415[l]; 34 CFR 300.516; EC 56505[h] and [k], EC 56043[w])
Who pays for my attorneys’ fees?
In any action or proceeding regarding the due process hearing, the court, in its discretion, may award reasonable attorneys’ fees as part of the costs to you as parent of a child with a disability if you are the prevailing party in the hearing. Reasonable attorneys’ fees may also be made following the conclusion of the administrative hearing, with the agreement of the parties. (20 USC 1415[i][B]–[G]; 34 CFR 300.517; EC 56507[b])
Fees may be reduced if any of the following conditions prevail:
- The court finds that you unreasonably delayed the final resolution of the controversy
- The attorneys’ hourly fees exceed the prevailing rate in the community for similar services by attorneys of reasonably comparable skill, reputation, and experience
- The time spent and legal services provided were excessive, or
- Your attorney did not provide to the school district the appropriate information in the due process request notice.
Attorneys’ fees will not be reduced, however, if the court finds that the State or the school district unreasonably delayed the final resolution of the action or proceeding or that there was a violation of this section of law. (20 USC 1415[i][B]-[G]; 34 CFR 300.517)
Attorneys’ fees relating to any meeting of the IEP team may not be awarded unless an IEP team meeting is convened as a result of a due process hearing proceeding or judicial action. Attorneys’ fees may also be denied if you reject a reasonable settlement offer made by the district/public agency ten (10) days before the hearing begins and the hearing decision is not more favorable than the offer of settlement. (20 USC 1415[i][B]–[G]; 34 CFR 300.517)
To obtain more information or to file for mediation or a due process hearing, contact:
Office of Administrative Hearings
Attention: Special Education Division
2349 Gateway Oaks Drive, Suite 200
Sacramento, CA 95833-4231
Phone: (916) 263-0880
FAX: (916) 263-0890