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Special Education 101:Complaint Procedures and

Due Process

ACSA 2018Every Child Counts Symposium

Presented by: Howard Fulfrostand Jonathan Read

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OAHand

Courts

IDEA 2004

CaliforniaEducation

Code

CaliforniaCode of

Regulations

FederalRegulations

Sources of Law

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Conflict Resolution

What are the various processes available toresolve disputes regarding FAPE?

Compliance complaint to CDE

Mediation only request to OAH

IDEA due process complaint to OAH

Section 504 due process complaint

Discrimination relatedcomplaints to OCR

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Compliance Complaint - CDE

Parent may file a complaint when theybelieve the school district has failed to

Follow special education laws

Implement a student’s IEP

Comply with a due process hearing order

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Compliance Complaint - CDE

California Department of Education has 60days to investigate and resolve complaint District receives a notice of the Complaint

District receives a request for information

Packet is put together and submitted to CDE, generallywithin 30 days CDE’s receipt of the complaint

CDE reviews the information provided and may or maynot follow up with interviews

Issue their decision

Request for reconsideration

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Compliance Complaint - CDE

If found out of compliance, what types ofremedies?

Corrective actions:

Training for staff

Change in policies

Direct services to students

Potential repercussions

State oversight

Loss of funding

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Conflict Resolution - OAH

What is the process districts use to resolveeducational disputes regarding FAPE?

Generally heard as a due process hearing underthe Office of Administrative Hearings (OAH)

Mediation Only Request

Due Process Complaint

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Mediation Only

Less confrontational than due process

Participation voluntary

Can still file for due process unless issues are settled.

Attorneys and other independent contractors who providelegal advocacy services cannot participate.

OAH ALJ assigned to mediate

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Mediation Only

Must be conducted within 15 days of thedate that OAH receives the request

Process must be concluded within 30 days ofthe date that OAH receives the requestunless the parties agree otherwise

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Mediation Only

If a resolution is reached through mediationonly, parties execute a binding writtenagreement that: Sets forth the resolution

States that all discussions during the process areconfidential

Is signed by both parties

Is enforceable in court

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Request for Due Process Hearing

Can be filed by

parentsand/or

school districts

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Due Process

What are the mechanisms available toresolve due process disputes?

Resolution meeting

Mediation

Due process hearing

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Due Process: Initiation

What issues may be addressed in a due processhearing?

1. Disagreements with regard to the identification,assessment, or educational placement

2. Disagreements regarding the provision of a FAPE

3. The parent refuses to consent to an assessment of thestudent or the educational program of student

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When Must A District File a DPC?

LEA must file for due process if:

Parent provides partial consent to theprovision of special education and relatedservices, and

LEA determines that the component notconsented to is necessary to provide a FAPE

(Ed. Code §§56346(e) and (f))

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When Must a District File a DPC?

Ninth Circuit has held that where parentprovides only partial consent: The LEA "must act with reasonable promptness to

correct that problem by adjudicating the differences withthe parents."

The LEA may not choose to "work with the parentsthrough the IEP process" rather than filing for dueprocess with reasonable promptness.

(I.R. v Los Angeles Unified Sch. Dist. (9th Cir. 2015) Case No. 13-56211)

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Facts: Parent agreed to portions of various IEPs, but did not agree

to placement outside of general education classroom

District provided services to which Parent consented, but didnot implement portions of IEPs to which she did not consent

As a result, Student remained in general education classroomfrom November 2010 until February 2012

Parent ultimately filed for due process

Court addressed issue of whether District violated Ed. Codesection 56346, which requires Districts to file for due processif any portion of IEP to which Parent does not consent isnecessary to provide FAPE

In Depth: Due Process Filing ObligationI.R. v. Los Angeles Unified School Dist. (9th Cir. 2015)

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Decision: Court rejected District’s argument that it did not unreasonably

delay filing for due process because it was still attempting touse IEP meeting process to resolve issues with Parents

Delay of more than one year was unreasonable

District must act with “reasonable promptness” to minimizeduration of any denial of FAPE if it cannot reach agreementwith Parents

Hoping that an agreement will be reached at some point intime is not enough to justify putting off the obligationimposed by section 56346

In Depth: Due Process Filing ObligationI.R. v. Los Angeles Unified School Dist. (9th Cir. 2015)

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When Must a District File a DPC?

LEA must file for due process if:

Parent requests an IEE, and

LEA chooses not to provide it

Per OAH and CDE, must also file to defendcriteria if cannot agree on an IEE assessor

The purpose of the due process hearing is for theLEA to demonstrate that its assessment isappropriate (complies with the law)

(34 C.F.R. § 300.502(b)(2); Ed. Code §56329(c))

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When May a District File a DPC?

LEA may file for due process if:

Parent does not consent, or fails to respond to a requestfor consent, to initial assessment LEA does not violate its Child Find or assessment obligations if it

chooses not to file for due process

CAUTION: If the LEA continues to suspect a disability, the LEAshould continue to present an assessment plan to parents

(34 C.F.R. §300.300(a)(3); Ed. Code §56321(a))

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When May a District File a DPC?

LEA may file for due process if: Parent does not consent to reassessment

LEA does not violate its Child Find or assessment obligations if itchooses not to file for due process

CAUTION: if the LEA continues to suspect an area of need, the LEAshould continue to present an assessment plan to parents

Consent not required (so no need to file for due process) ifLEA has made reasonable efforts to obtain it and parent hasfailed to respond (but if parent responds by saying no,cannot assess without filing for due process)

(34 C.F.R. §300.300(c); Ed. Code §§56381(f)(1) and 56506(e))

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When Is a District Prohibited fromFiling a DPC?

LEA may not file for due process if:

Parent does not consent, or fails to respond to arequest for consent, to the initial provision ofservices LEA must make and document “reasonable efforts” to obtain

consent

LEA does not violate its obligation to provide a FAPE to child

LEA is not required to convene an IEP team meeting or developan IEP

(34 C.F.R. §300.300(b) ; Ed. Code §56346(b) )

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When Is a District Prohibited fromFiling a DPC?

LEA may not file for due process if:

Parent revokes consent to ALL specialeducation and related services any time aftertheir initial provision

LEA must provide prior written notice beforestopping services LEA does not violate its obligation to provide a FAPE to child

LEA is not required to convene an IEP teammeeting or develop an IEP

(34 C.F.R. §300.300(b)(4); Ed. Code §56346(d) )

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When Is a District Prohibited fromFiling a DPC?

LEA may not file for due process if:

Child is home schooled or placed in privateschool by parent, and

Parent refuses to consent, or fails to respond torequest for consent, to an initial assessment orreassessment LEA is not required to consider the child eligible for services

under the regulations governingparentally-placed children in private school

(34 C.F.R. §300.300(d)(4); Ed. Code §56346(g))

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Stay Put Right to stay put during proceedings

If complaint involves initial admission to public school,child must be admitted pending outcome

If complaint involves initial services for 3 year old childtransitioning from Part C to Part B, LEA not required tocontinue providing Part C services

For matters involving discipline, stay put is the interimalternative placement/disciplinary setting

(34 C.F.R. §300.518; Ed. Code §56505(d))

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Practice Pointers

Don’t wait too long to file for due process ifparents only provide partial consent to anIEP! A “vague hope that maybe an

agreement . . . will be reachedsomeday is not enough to justifyputting off the obligation imposedby section 56346.”

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Proving and Defending An IEP

Substantive Prong (from Special Ed 101-Part 2)

Program must be designed to meet all of thestudent’s unique needs

Program must be reasonably calculated to providesome educational benefit

Program must comport with IEP

Program must be offered in the least restrictiveenvironment

Okay, here is the test – Where did this come from?

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Proving and Defending An IEP

Procedural inadequacies result in denial ofFAPE if (from Special Ed 101 – Part 1)

Impede student’s right to a FAPE

Significantly impede parent’s opportunity toparticipate in decision-making process; or

Cause deprivation of educational benefit

Another test – Where did this one come from?

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Due Process: Remedies

Due process cases can be very costly to theschool district

Retroactive Reimbursement

Compensatory Education

IEP Team Meetings

Specific Placements, including NPSor residential placement

Attorney Fees

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What Is Due Process?

The impartial reviewer is an

Administrative Law Judge (“ALJ”) Must satisfy minimum requirements set forth in EC §

56500 et seq. (5 CCR § 3097) Must participate in 20 hours of mediation training, 80

hours of special education and adjudicative training Must participate in 20 hours of annual continuing

education

A party files a request for due process with OAH OAH contracts with the CDE to handle the due process and

mediation program

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What Is a Due Process Hearing?

It is similar to a court trial, but less formal Technical rules of evidence and those related to witnesses do

not apply

Designed so that proceedings and rules are easily understoodby lay people

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What Is a Due Process Hearing?

Testimonial and documentary evidence ispresented and entered into a “record”

The ALJ renders an informed decision based onthe evidence

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Take It to Court!

Can a Party Go Directly to Court Instead ofRequesting Due Process?

No!

A party must bring IDEA

claims to OAH first

After OAH issues a final decision, a party has theoption of filing an appeal

Appeal can be filed in either:

State court

Federal court

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Why Do Districts Settle?

Cost

Dollars

Staff wear & tear; Stress

Greater control of the outcome

Unpredictability of hearing officers

Strength of claims

Time involved preparing for hearing

Maintain better relationship withstudents/parents

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When Do Districts Settle?

At Resolution Meeting

Less formal, no mediator presiding

Parents concerns can be heard

District gets clearer picture of issues

At Mediation

More formal, mediator involved

Alternative Means

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Resolution Meeting

The IDEA requires that parties convene a“resolution meeting.”

Districts must schedule this meeting to occurwith relevant IEP team members within 15days of receiving a parent’s due processcomplaint.

Are able to work with parents to rescheduleonce the initial resolution session date is set.

(Educ. Code §56501.5)

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Mediation

Mediation is voluntary

Discussions during mediation are confidential

Mediation is conducted by a qualified andimpartial mediator

(Ed. Code, §56500.3)

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Alternative Means of Settlement

Many cases are settled outside of mediationand resolution sessions

Parties may meet informally to resolve theissues prior to hearing

(Ed. Code, §56503)

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When Do Districts Go to Hearing? Strength of Case

Ability to prove and defend the adequacy of thestudent’s IEP

Procedural

Substantive

Cost

What remedy is the student seeking?

Attorney’s fees

Relationship with student/parents

Reputation

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Settlement

Typical “bad facts”: Timelines not met

Student not appropriately assessed

IEP not reasonably calculated to provide some educationalbenefit (dots were not connected)

IEP not being implemented

Required IEP team members absent

Improper change in placement

Inadequate accommodations/modifications

Disciplinary removals miscounted; no MD review

Parent’s participation impeded

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Proceeding to Hearing Considerations

Strong case Timelines met

Offer of FAPE complies with law

IEP implemented correctly

Assessments are appropriate and comply with law

Decision that student DNQ complies with law

Student progress established

Strength of witnesses

Timing

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Proceeding to Hearing Considerations

Cost Financial Cost of the hearing – Dollars & Cents

Student seeks costly remedy (i.e. residential placement, substantialcompensatory services)

Staff morale

Reputation LEA won’t cave in just because

parent files for due process

Community impressions

Other pending cases

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Steps to a Due Process Case

1. Case is filed

2. Resolution meeting held

3. Mediation held

4. Witness preparation

5. Prehearing conference

6. Hearing itself

7. Decision

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TimelinesIssues

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Relevant Timelines

If a party intends to be represented by counsel at hearing, thatparty must given written notice at least ten days before the hearingis scheduled to begin

Copies of all documentary evidence, and a list of allanticipated witness, must be provided to the other party at least5 days before the hearing is scheduled to commence

A statutory settlement offer must be delivered to the other partyat least 10 days before the hearing is scheduled to commence

A pre-hearing conference statement must be filed with OAH,and delivered to the other parties, at least 3 days before the pre-hearing conference is scheduled

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Relevant Timelines

How quickly will a due process hearing becalendared?

If the District files, about 3 weeks from the dateof filing because no resolution time period

If Parent files, about 60 days after the DPC isfiled.

Expedited cases are FASTER!!!!

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Expedited Timelines

Resolution meeting must occur within 7 days of receiptof notice of complaint unless parties waive

Hearing must take place within 20 school days of daterequest for due process filed with OAH

ALJ must render decision within 10 school days afterhearing

Party may appeal to state or federal court within 90 daysof final decision

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Statute of Limitations

A two-year statute of limitations applies unless:

The LEA specifically misrepresented that it had solvedthe problem forming the basis of the due processhearing request

The LEA withholds information from the parent thatwas required to be provided to the parent

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IDEA’s two-year statute of limitations period does notprohibit parents from seeking relief for allegeddenials of FAPE that occurred more than two yearsearlier, so long as they file their complaint within twoyears of discovering the alleged wrongdoing.

(Avila v. Spokane School Dist. 81 (9th Cir. 2017) 117 LRP 11513)

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The

Complaint

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Due Process Complaint (DPC)

OAH has a form A copy of the DPC must be provided to the

other party at the same time as the DPC isfiled with OAH

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Due Process Complaint (DPC)

A DPC must include: The child’s name and residence address (or

available contact information) The name of the school the child is attending A description of the nature of the child’s

problem related to the proposed initiation orchange, including facts related to the problem

A proposed resolution of the problem to theextent known and available to the party at thetime

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OAH Notice

Upon receipt of a DPC, OAH must:

Notify in writing all parties that a DPC has been filed Notify in writing all parties of the date of the hearing BUT, beware of OAH’s current backlog!

Timelines run from the date of the receipt of thecomplaint not OAH’s notice!

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Expedited Cases

OAH determines what is expedited; buteither side can ask for an expedited hearing

Discipline-related cases

Appeal of a manifestation determination

Prior knowledge

Dangerous student

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Expedited Hearings

NOTE:It is possible that a case may have both

expedited and non-expedited components,and, thus, two sets of timelines.

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TheResponse

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Response to the Complaint

When the LEA is the respondent, the LEAmust file a due process complaint response The response must: Specifically address the issue(s) raised in the DPC

(deny or agree to allegations & explain why) Provide prior written notice (PWN) if such notice has

not been given with regard to the parent’s proposedresolutions

Due within 10 days of the receipt of DPC

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M.C. v. Antelope Valley UnionHigh School Dist. (2017)

9th Circuit has held that response to a complaint ismandated by the IDEA and is tantamount to an“Answer” in a court proceeding

Failure to provide response deprives the parent ofknowledge of the District’s defenses which may leadto unnecessary attorney fees = Denial of FAPE!

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Response to the Complaint

PWN must include: A description of the action proposed or refused by the LEA

An explanation of why the LEA proposes or refuses to take the action

A description of each assessment procedure, assessment, record, or reportthe LEA used as a basis for the proposed or refused action

A statement that the parents of a special education child have protectionunder the IDEA procedural safeguards and, if this notice is not an initialreferral for assessment, the means by which a copy the parents may obtaina description of their procedural safeguards

Sources for parents to contact to obtain assistance in understanding theIDEA

A description of the other options that the IEP team considered and thereasons why those options were rejected

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Amendment to Complaint

A petitioner may amend a DPC if: The other party consents in writing; The ALJ grants permission

If allowed to amend, all dates are vacated,and the timeline will begin to run when theamended DPC is filed Must provide a new response Must hold another resolution session

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Notice of Insufficiency (NOI)

A DPC must be sufficient May file an NOI if the DPC is insufficient If OAH agrees that a DPC is insufficient, the

DPC will be dismissed without prejudice Can refile the complaint.

Purpose The DPC must provide sufficient information for the

respondent To understand the issues and proposed resolutions; and Formulate a defense

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Notice of Insufficiency

Due 15 days after the receipt of the dueprocess complaint

OAH must make a determination regardingthe notice of insufficiency within 5 days fromthe date it is filed with OAH

No right to a response to an NOI

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Opportunitiesfor

Resolution

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Resolution Session

Purpose

For the parent to discuss the due processcomplaint issue(s), and the facts that formthe basis of the complaint, so that the LEA

has the chance to resolve the dispute that isthe basis for the due process hearing

request.

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Resolution Session

Must be held with in 15 days of the receiptof the complaint

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Resolution Session

Only required when parent files

LEA must convene a resolution meeting Attendees: parents and relevant IEP team members who

have specific knowledge of the facts identified in the dueprocess complaint

The parent and the LEA determine who the relevant IEPteam members are

The meeting must include an LEA representative who hasdecision-making authority on behalf of the LEA

An LEA attorney cannot attend unless the parent brings anattorney

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Resolution Session

WaiverParties may forego the resolution meeting if the parents and the LEA

agree in writing to waive it, or agree to use just mediation

But

Unless waived, a resolution session is a prerequisite to a hearing –parent’s documented failure to participate is grounds for dismissal

But

If a resolution session is not convened within timelines or the LEArefuses to participate, the parent may seek to go directly to hearing

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Resolution Session

If the matter is resolved at the resolutionsession, the parties must execute a legallybinding agreement that is:

Signed by both the parent and a LEArepresentative who has authority to bind LEA

Enforceable in court

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Resolution Session

Practice Pointers Resolution sessions are NOT confidential; but, you can get

an agreement that they will be.

If you waive the resolution session, you lose the chance to

Dig deeper into the parent’s “real” issues

Understand how the parent(s) intend to prove theircase

Resolve some issues immediately

Resolution sessions may be opportunities to implement anADR process

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Mediation Process

Start together

ALJ speaks about mediation

Voluntary

Confidential

Parties are in control

Petitioner presents case

Respondent responds or asks questions

Parties caucus and negotiate

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Mediation Process

Practice Pointers Don’t dispute parent(s)’ side of the story when the parties

are together

Use caucus time wisely

Research requests

Get clarification from mediator

Negotiate wisely

Draft a written agreement from which you cannegotiate

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ThePrehearing

Process

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Witness Preparation

Meet with each witness in advance of thehearing to:

Clarify facts

Practice likely questions and answers

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Witness Preparation

At least one hour with attorney and witness

Each person who attended an IEP at issue

Any person who assessed student

Teachers

Counselors

Principal

Aides

Service providers

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Pre-Hearing Motions

Either party may file motions Must be filed at least 3 days prior to the PHC

Oppositions

3 days to file

Replies

Not required, so file quickly!

One or more motions might be filed depending on thefacts, including motions to: Continue (postpone) hearing

Dismiss issues or entire case

Amend the hearing request

Consolidate two related cases

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Prehearing Conference

OAH’s scheduling order will include date for PHC(usually one week before hearing)

Parties must file PHC Statement 3 days before PHC: Estimated duration of hearing

Statement of issues (none that were not included in dueprocess request)

Proposed resolutions

Witnesses and experts

Exhibits

Need for interpreter, if any

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Prehearing Conference

Telephonic conference call between ALJ andparties

Purpose: planning and discussing the hearing byaddressing information in PHC Statement

Can address other issues:

Scheduling conflicts

Motions

ALJ will issue a PHC Order

(Ed. Code §56505(e)(6))

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TheHearing

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Due Process Hearing

Both parties have the right to: Present evidence, written arguments, and oral arguments

Confront, cross-examine, and compel the attendance of,witnesses

A written, or, at the options of the parents or guardians,electronic verbatim record of the hearing

A written, or, at the option of the parent or guardian, electronicfindings of fact and decisions.

Be informed by the other parties to the hearing, at least 10 daysbefore the hearing, as to what those parties believe are theissues to be decided at the hearing and their proposed resolutionof those issues

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Due Process Hearing

Both parties have the right to: Receive from other parties, at least five business days before the

hearing, a copy of all documents and a list of all witnesses andtheir general area of testimony that the parties intend to presentat the hearing

Receive from other parties, at least five business days before thehearing, a copy of all assessments completed by that date andrecommendations based on the assessments that the partiesintend to use at the hearing

Prohibit the introduction of evidence at the hearing that has notbeen disclosed to that party at least five business days beforethe hearing

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Due Process Hearing

Hearing should be:

Held at a time and place reasonably convenient to theparent or guardian, and the student (not District)

Conducted by a knowledgeable person To conduct hearings

To render and write decisions

To encourage the parties to consider the option of mediationas an alternative to hearing

This is where “stay put” really applies!

Petitioner bears the burden of proof

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Due Process Hearing

The ALJ may do any of the following during the dueprocess hearing: Question a witness on the record before any of the parties do

Request that conflicting experts discuss an issue while on therecord

Visit the proposed placement site or sites

Call a witness to testify

Order that an impartial assessment be conducted

Bar introduction of documents or testimony of witnesses notdisclosed at least five days before the hearing

Call independent medical specialists

Set a reasonable limit on the length of the hearing

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TheDecision

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The Decision

The ALJ’s decision must be made on substantivegrounds based on a determination of whetherthe child received a FAPE

In matters alleging a procedural violation, anALJ may find that a child did not receive a FAPEonly if the procedural violation: Impeded the right of the child to a FAPE;

Significantly impeded the opportunity of the parents toparticipate in the decision-making process regarding theprovision of a FAPE to the child of the parents; or

Caused a deprivation of educational benefits

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The Decision

Due within 45 days of the hearing

The ALJ’s decision is the final administrativedetermination and is binding on all parties

The parties may appeal the decision to a stateor federal court of competent jurisdiction

During the pendency of the appeal, “stay put” is What the parent argued was FAPE if the parent won at the due

process hearing

What was “stay put” during the due process hearing if the LEAwon at the due process hearing

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The Decision

ALJ cannot prospectively: Place a student in an uncertified nonpublic, nonsectarian

school

Award services to a student from an uncertifiednonpublic, nonsectarian school

Place a student in a religious school

BUT, can order reimbursement!

(Ed. Code § 56505.2)

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The Decision

ALJ can order: LEA to comply with procedural requirements

Compensatory education and/or services

Placement

Decisions involving placement shall consider cost inaddition to other factors

Retroactive reimbursement

IEP team meetings

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AttorneyFees

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Attorney Fees

General Rule: A prevailing party parent is entitled toattorney fees OAH does not order; only determines prevailing party

By agreement of the parties after a due process hearing

By a court of competent jurisdiction

OAH has no jurisdiction over the award of, or dispute regarding,attorney fees

NOTE: This applies even if the parent did not win on all issues!

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Attorney Fees

A court (including OAH) can award fees to LEAonly if court determines: Parent’s attorney filed frivolous or unreasonable case, or a

case without foundation

Parent’s attorney continued to litigate case after it clearlybecame frivolous or unreasonable or lacked foundation

Parent’s attorney or parent requested due process hearingfor an improper purpose:

Harassment

Causing unnecessary delay

Needlessly increasing cost of litigation(Ed. Code §56507(b)(2))

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Hearings

Practice Pointers Early On

Conduct Case Analysis

Conduct Cost-Benefit Analysis

Conduct Witness Interviews

Be Prepared

Meet With All Witnesses

Develop a “theory of the case”

Determine the “story” you will tell at hearing

If Appropriate, Make a Statutory Settlement Offer

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How Much? Dollars and Sense

A typical due process complaint, from filing to ALJ decision,costs about $60,000

If that decision is appealed, the appeal at District Courtcosts about $50,000+

The next 2 stages of appeal cost about $50,000 and$30,000, respectively

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How Much? Dollars and Sense

Resolution of one due process complaint DOES NOT resolveall issues for that time period Student can file again and raise different issues

Can file under Section 504

Can file complaint with OCR

Can file complaint with CDE

Settlement agreements can resolveall issues, known and unknown,between parties

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Red Flags

Requests for:

Records from a parent, advocate, or attorney

Independent educational evaluations

Requests to consider private evaluations

Bringing an advocate or attorney to any meeting

Audio-taping an IEP team meeting

Filing

A compliance complaint

A complaint against personnel

A complaint regarding bullying

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Information in this presentation, including but not limited to PowerPoint handouts and the presenters' comments, is summary only and not legal advice.We advise you to consult with legal counsel to determine how this information may apply to your specific facts and circumstances.

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Information in this presentation, including but not limited to PowerPoint handouts and the presenters' comments, is summary only and not legal advice.We advise you to consult with legal counsel to determine how this information may apply to your specific facts and circumstances.