SPECIAL EDUCATION RIGHTS AND RESPONSIBILITIES

Chapter 6

Information on Due Process Hearings/Complaints

From a 13-Chapter Manual

Available by Chapter and in Manual Form

Written by:

Community Alliance for Special Education (CASE)

and

Protection and Advocacy, Inc. (PAI)

Copyright © 1992 by CASE and PAI

Ninth Edition

Revised December 2005

Written permission of the Community Alliance for Special Education (CASE) and Protection and Advocacy, Inc. (PAI) must be obtained for duplication of the materials contained in Special Education Rights and Responsibilities.

These materials are based on special education laws and court decisions in effect at the time of publication. Federal and state special education law can change at any time. If there is any question about the continued validity of any information in the handbook, contact CASE, PAI or a legal authority in your community.

 

Federal special education law was significantly amended by Congress in 2004 and will be further clarified by regulations from the U.S. Department of Education in 2006. The California Education Code has been amended to reflect some of the federal law changes but not all.  In certain circumstances where it provides greater protections or entitlements, California law will continue to control special education pupils’ rights unless it is amended to completely conform to federal law.

CASE and PAI will monitor the development of conforming state law and regulations, so that revised state laws and regulations can be incorporated into later supplements and editions of SERR.

For further information on the development of federal and state law and regulation, or clarification about IDEA implementation, please contact CASE or PAI.

 

Community Alliance for Special Education (CASE) provides legal support, representation, technical assistance consultations, and training to parents throughout the greater San Francisco Bay Area whose children need appropriate special education services. Trained advocates and attorneys assist parents at IEP meetings, Mediation Conferences and Due Process Hearings. CASE also provides free consultations about special education rights and services to parents and professionals by telephone or face-to-face. CASE is a nonprofit organization serving all children with disabilities who need or may need special education services. For more information, contact:

CASE

 

Protection and Advocacy, Inc. (PAI), is a private, nonprofit organi­zation that protects the legal, civil and service rights of Californians who have develop­mental or mental disabilities. PAI provides a variety of advocacy services, including information and referral, technical assistance, and direct representation. For information or assistance with an immediate problem, call:

PAI

Toll Free: (800) 776-5746

9:00 AM to 5:00 PM - Monday through Friday

 

 

PAI receives funding under the Developmentally Disabled Assistance and Bill of Rights Act and the Protection and Advocacy for Mentally Ill Individuals Act. Any opinions, findings, recommendations or conclusions expressed in this publication are those of the authors and do not necessarily reflect the views of the organizations which fund PAI.

SPECIAL EDUCATION RIGHTS AND RESPONSIBILITIES

TABLE OF CONTENTS

Chapter 1             Information on Basic Rights and Responsibilities

Chapter 2             Information on Evaluations/Assessments

Chapter 3             Information on Eligibility Criteria

Chapter 4             Information on IEP Process

Chapter 5             Information on Related Services

Chapter 6             Information on Due Process Hearings/Compliance Complaints

Chapter 7             Information on Least Restrictive Environment

Chapter 8             Information on Discipline of Students with Disabilities

Chapter 9             Information on Inter-Agency Responsibility for Related Services (AB 3632/882)

Chapter 10        Information on Vocational Education

Chapter 11        Information on Preschool Education Services

Chapter 12        Information on Early Intervention Services

NOTE:              The text in each chapter refers to specific questions in other chapters by using the titles shown above

 

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SPECIAL EDUCATION RIGHTS AND RESPONSIBILITIES

Chapter 6

Information on Due Process Hearings/Complaints

TABLE OF CONTENTS

Question                                                                                    Page

1.      What is a due process hearing?. 1

2.      What is a compliance complaint?. 1

3.      What is the difference between a compliance complaint and a due process hearing?. 2

4.      Would I follow different complaint procedures if OT/PT or mental health services are not provided as specified in my child’s IEP?. 2

5.      Who can file a compliance complaint?. 3

6.      What can I do if a teacher or other school staff person hurts my child – other than bringing a civil lawsuit against a school district or reporting the incident to the appropriate law enforcement authorities?. 4

7.      When should I file a compliance complaint directly with the CDE?. 4

8.      How do I file a compliance complaint with the CDE?. 5

9.      What happens after I file a complaint?. 5

10.   How does the CDE investigate complaints?. 6

11.   Who handles complaints when the CDE does not intervene directly?. 7

12.   How do I file a compliance complaint with my local school district?. 7

13.   How does a local school district conduct investigations?. 8

14.   Can a local school district try to mediate a complaint as part of its local investigation process?. 8

15.   What happens if I disagree with the local education agency’s report?. 8

16.   What happens when the CDE finds a public education agency to be out of compliance?. 9

17.   What can I do if I do not agree with the CDE’s decision?. 9

18.   Can I file a complaint with any other agencies?. 9

19.   How would I file a complaint with the OCR?. 10

20.   When would I file a Section 504 discrimination complaint with OCR?. 10

21.   How does the OCR act on complaints?. 11

22.   Can I file a discrimination complaint with the CDE?. 11

23.   SEE ALSO CHAPTER 1, QUESTIONS AND ANSWERS 24 THROUGH 24(I). When would I request a due process hearing?. 12

24.   When must a school district notify me if the district proposes to change or modify my child’s special education program?. 12

25.   What information should the school district include in this notice?. 13

26.   Are there any other notices that the school district must give?. 14

27.   What information must the procedural rights notice contain?. 14

28.   SEE ALSO CHAPTER 1, QUESTION AND ANSWER 25. What happens to my child if I file for a due process hearing?. 15

29.   SUPERSEDED. SEE ONLY CHAPTER 1, QUESTIONS AND ANSWERS 37 THROUGH 37(B). The school district changed my child’s placement without my consent and without following the procedures described in the three situations listed above. They said all they had to do was to have a meeting and determine that my child’s behavior was not due to his disability and they could do whatever they wanted to with him. Is that true?. 16

30.   The school district had such a meeting and decided that my child’s behavior was not a manifestation of his disability. I disagree. What can I do to stop the change of placement?. 17

31.   SUPERSEDED. SEE ONLY CHAPTER 1, QUESTION AND ANSWER 37(B). I appealed but the school told me that my child’s placement during the appeal process will be his new placement not his prior one. Is that correct?. 17

32.   SUPERSEDED. SEE ONLY CHAPTER 1, QUESTIONS AND ANSWERS 24 THROUGH 24(F). How do I set up a due process hearing?. 18

33.   Can the local education agency request a due process hearing?. 19

34.   SUPERSEDED. SEE ONLY CHAPTER 1, QUESTIONS AND ANSWERS 24(G) THROUGH 24(H). Once a request for a due process hearing is made, how long does SEHO have to hold the hearing and make a decision?. 19

35.   SEE ALSO CHAPTER 1, QUESTION AND ANSWER 24(I). What is a mediation conference?. 19

36.   What are the pros and cons of going through mediation?. 20

37.   Are there any dispute resolution procedures other than the compliance complaint and due process mediation and hearing?. 20

38.   SEE ALSO CHAPTER 1, QUESTIONS AND ANSWERS 24(A) THROUGH 24(E). Should I file for due process immediately, that is, as soon as it becomes apparent that the school district and I are at an impasse over services or placement at the IEP meeting?. 22

39.   SEE ALSO CHAPTER 1, QUESTIONS 24(A) THROUGH 24(E). How do I know if I am prepared for the due process hearing?. 22

40.