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Your Right to Procedural Safeguards to Resolve Disagreements Over What is Appropriate for Your Child
Your Right to Procedural Safeguards to Resolve Disagreements Over What is Appropriate for Your Child
If there is a disagreement about your child’s assessment or IEP, you have the right to voice your concerns. You always have the option of discussing your concerns with District personnel at your child’s school site to resolve any disagreement. If you consent in writing to your child receiving special education and related services, yet do not consent to all of the components of the IEP, those components of the program to which you consent shall be implemented so as not to delay providing instruction and services to your child. You are not required to initiate any form of dispute resolution as to components of the IEP to which you do not consent. If you wish to initiate a dispute resolution process, you may choose from any of the following as listed below.
Alternative Dispute Resolution (ADR)
Alternative Dispute Resolution or “ADR” is an optional dispute resolution process available to parents. ADR is a District process that is designed to be faster, less formal, and less adversarial than mediation and due process proceedings. The ADR process allows parents an opportunity to identify their issues and concerns and work with District administrator(s), or a neutral facilitator, in an effort to quickly resolve the identified issues.
If you disagree with components of your child’s proposed IEP and want to use the ADR process to resolve the disagreement, please notify the IEP administrator/designee. To assist with addressing your concerns, please discuss your issues and concerns with the IEP administrator/designee as soon as possible after the IEP team meeting.
If an agreement is reached during the ADR process, the terms of the agreement may be put in writing and signed by both parties, and/or an IEP team meeting may be held to incorporate the terms of the agreement. Requesting ADR does not preclude you from filing for due process proceedings or mediation only.
Due Process Proceedings
Due Process proceedings are dispute resolution processes required to be available to parents and school districts under the Individuals with Disabilities Education Act (IDEA). You or the District may file a due process complaint on any matter relating to a proposal or refusal to initiate or change the identification, evaluation, or educational placement of your child, or the provision of a free appropriate public education (FAPE) for your child.
Due Process proceedings begin with the submission of a complaint notice. The Office of Administrative Hearings (“OAH”) is the State agency that governs due process proceedings for the state of California. Due Process proceedings include Mediation Only and Due Process Hearing requests.
Mediation Only
“Mediation Only” is a voluntary dispute resolution process where a neutral mediator assists you and the District in discussing and attempting to resolve the disagreement. The mediators are not employees of the District and do not have any personal interest in the disagreement. The mediators are selected on an impartial basis by the State and know the laws and regulations relating to the provision of special education and related services. The Mediation Only process includes a mediation conference attended by you, the assigned mediator, and a District representative who has decision-making authority.
To request Mediation Only, complete the “Request for Mediation Only” form available online at https://www.dgs.ca.gov/OAH/Case-Types/Special-Education/Forms/Request-for-Mediation-Only-Form? search=Request%20for%20Mediation%20Only.
Once you have completed the form, federal and state laws require you to send or deliver a copy to each of the named parties and to file the complaint with OAH.
To “file” the complaint with OAH, the document must be e-filed (sent via the internet) using OAH’s Secure e-File Transfer (SFT) system, mailed, hand-delivered, or sent by overnight delivery, to the OAH offices in Sacramento, CA. OAH no longer accepts any documents via facsimile transmission. Please note that in order to use OAH’s SFT, you need to have an email address. If you do not have an email address or are unable to use the SFT, please contact OAH for assistance at
Office of Administrative Hearings
Attention: Special Education Division
2349 Gateway Oaks Drive, Suite 200
Sacramento, CA 95833
Phone: (916) 263-0880
Website: https://www.dgs.ca.gov/OAH/Case-Types/Special-Education
Secure File Transfer: https://www.dgsapps.dgs.ca.gov/OAH/OAHSFTWeb
After receiving your request for Mediation Only, OAH will schedule a mediation conference. Attorneys and paid advocates may not attend the mediation conference held during the Mediation Only process. At a mediation conference, the mediator will help you and the District understand each other’s point of view. The mediator may also offer options for you and the District to consider. What is said at a mediation conference is confidential and cannot be used in any due process hearing or civil proceeding. If you and the District reach an agreement, the terms of the agreement will be put in writing and must be signed by you and the District representative. Once the agreement is signed, it is enforceable under State and Federal law.
Requesting Mediation Only does not preclude either you or the District from requesting a due process hearing. If the Mediation Only process does not resolve the disagreement, either you or the District may file a Request for Mediation and Due Process Hearing.
Request for Due Process Hearing
The request for a Due Process Hearing begins with the submission of a complaint notice and includes a resolution period with a mandatory resolution session meeting, optional mediation, and a due process hearing before an impartial hearing officer. The Office of Administrative Hearings (OAH) will determine if a case is “expedited” (will take place on a faster timeline than most hearings) based on the law. The District convenes the resolution session meeting and OAH conducts the optional mediation and the due process hearing. It may not be necessary to go through all of the proceedings to reach a resolution. A due process complaint may be resolved by mutual agreement of the parties at any stage of the proceedings.
The District is required to initiate a due process request if the District determines that the proposed special education program component to which you do not consent is necessary to provide a free appropriate public education to your child. The exception to this is a situation in which you fail to respond or consent to the initial provision of special education and related services for your child.
While a resolution session, mediation conference, or due process hearing is pending, your child shall remain in his or her current placement, unless you and the District agree otherwise. If a due process hearing is held, the hearing decision shall be binding upon the parties.
Submission of a Request for Mediation and Due Process Hearing
To request a Due Process Hearing, please complete a “Request for Mediation and Due Process Hearing” form available online at https://www.dgs.ca.gov/OAH/Case-Types/Special-Education/Forms/Request- for-Mediation-and-Due-Process-Hearing-Form?search=Request%20for%20Mediation%20and%20Due% 20Process%20Hearing.
If you prefer, you may submit a complaint notice that contains the following information: (1) the name of the child, (2) the address of the residence of the child or available contact information for the child if the child is homeless, (3) the name of the school the child is attending, (4) a description of the nature of the problem, and (5) a proposed resolution to the problem to the extent known and available at the time. Once you have completed the complaint form, federal and state laws require you to send or deliver a copy to each of the named parties and to file the complaint with OAH.
To “file” the complaint with OAH, the document must be e-filed (sent via the internet) using OAH’s Secure e-File Transfer (SFT) system, mailed, hand-delivered, or sent by overnight delivery, to the OAH offices in Sacramento, CA. OAH no longer accepts any documents via facsimile transmission. Please note that in order to use OAH’s SFT, you need to have an email address. If you do not have an email address or are unable to use the SFT, please contact OAH for assistance at
Office of Administrative Hearings
Attention: Special Education Division
2349 Gateway Oaks Drive, Suite 200
Sacramento, CA 95833
Phone: (916) 263-0880
Website: https://www.dgs.ca.gov/OAH/Case-Types/Special-Education
Secure File Transfer: https://www.dgsapps.dgs.ca.gov/OAH/OAHSFTWeb
Additional information regarding the necessary components of a Request for Mediation and Due Process Hearing is available on OAH’s website at www.oah.dgs.ca.gov.
In order for the complaint to go forward, it must contain the required information described above. Within fifteen (15) days of receipt of the complaint notice, the party receiving the complaint notice (i.e., the District if you file) may file an objection to the complaint notice on grounds that the complaint notice does not contain the information required by law. If an objection is filed, the OAH must render a decision on the sufficiency of the notice within five (5) days, and provide both parties with written notification of the determination.
You may make changes to your complaint notice only if: (1) the District approves the changes in writing and is given a chance to resolve the due process complaint through a resolution meeting or (2) a hearing officer grants you permission to amend your complaint no later than five (5) days before the due process hearing begins. You may not change your complaint notice after the hearing begins.
If you make changes to your complaint, you will be required to submit an amended complaint notice. Once you submit the amended complaint notice, the timelines for the resolution period and resolution session (described in the next section) will start again.
Resolution Period
The Individuals with Disabilities Education Improvement Act of 2004 (IDEA 2004), mandates a thirty (30) day resolution period prior to the commencement of a due process hearing. This resolution period is intended to give parents and schools expanded opportunities to resolve disagreements in positive and constructive ways. With respect to the resolution period, IDEA 2004 includes the following procedures:
If the District has not sent a prior written notice to you regarding the IEP in dispute, the District is required to send a written response to your complaint within ten (10) days of its receipt of the Request for Mediation and Due Process Hearing. The District’s response will include, among other things, an explanation of why the District proposed or refused to take the action raised in the complaint notice, a discussion of the options considered, and a description of the information the District used to make the determination. The response may also include a proposed resolution or proposed activity (e.g., re-convening the IEP team meeting) to address the issues raised in the complaint notice.
Within fifteen (15) days of the District’s receipt of the complaint notice, the District will schedule a resolution session unless you and the District agree in writing to waive the meeting or agree to use the mediation process instead. Except in those cases where you and the District have agreed in writing to waive the resolution session, your failure to participate in the resolution session will delay the timelines for the resolution process and due process hearing. Further, if you fail to participate in a resolution session after the District has made repeated attempts to schedule the session, the District may request that OAH dismiss your due process complaint. If the District fails to schedule the resolution session within fifteen (15) calendar days of receipt of your complaint notice, or fails to participate in the resolution session, you may ask OAH to order that the due process hearing timelines begin prior to the end of the thirty (30) day resolution period.
The purpose of the resolution session is to discuss your complaint and to provide the District with an opportunity to resolve the dispute. The resolution session will include a relevant member or relevant members of the IEP team, a District representative who has decision-making authority, and you. The District may not have an attorney present unless you have an attorney present. If a resolution is reached at the resolution session, the parties will execute a legally binding written settlement agreement that is enforceable in a court of law. Either party may void the agreement within three (3) business days of the date on which it was signed.
If your complaint has not been resolved to your satisfaction within thirty (30) days of the date the District received the complaint notice, the due process hearing may occur and all of the applicable timelines for a due process hearing shall commence.
Optional Mediation
Prior to the due process hearing, the parties may elect to participate in a mediation conference. This pre-hearing mediation conference is similar to the conference held during the Mediation Only process except that attorneys may participate in the pre-hearing mediation conference. When a pre-hearing mediation conference is requested, the Parties named in the due process matter work collaboratively with you to schedule a time and date for the mediation and OAH assigns a mediator. The role of the mediator is to assist you and the District in resolving the disagreement relating to your child’s IEP. If an agreement is reached at the mediation conference, the terms of the agreement will be written into a settlement agreement that is enforceable after it is signed by you and a District representative. If the mediation conference does not result in an agreement, the matter will proceed to hearing.
Due Process Hearing
A due process hearing is a more formal resolution process. It is conducted by an OAH administrative law judge or “hearing officer.” Procedurally the hearing is like a trial. Evidence is presented and witnesses testify and are cross-examined. Hearing officers may question witnesses, have experts discuss issues with each other, visit placement sites, call witnesses, and t evaluations. The Hearing will focus on the issues identified in the due process hearing request, which may include whether your child received or was offered a free and appropriate public education (FAPE) under State and Federal law.
Procedural violations do not necessarily result in a denial of FAPE. In matters alleging a procedural violation, the hearing officer may find that your child did not receive FAPE only if: (1) the procedural violation interfered with the child’s right to FAPE; (2) significantly interfered with your opportunity to participate in the IEP process; or (3) caused a deprivation of educational benefit.
The due process hearing must be held and a written decision provided to all parties within forty-five (45) days of the expiration of the thirty (30) day resolution period, unless the hearing officer grants an extension of time at the request of one of the parties. At a due process hearing, you and the District have the right to:
A fair and impartial administrative hearing is conducted by a person who is knowledgeable of the laws governing special education and administrative hearings;
Be informed of the other party’s issues and proposed resolution(s) at least ten (10) calendar days prior to the hearing;
Receive notice of attorney representation from the other party at least ten (10) days prior to the hearing;
Receive from the other party a copy of all documents to be used by the other party at the hearing, including any evaluations, and a list of witnesses, indicating their general area of testimony, at least five (5) business days before the hearing (failure to provide documents in a timely manner can result in the exclusion of the documents);
Be accompanied and advised by an attorney;
Present evidence is written arguments, and oral arguments;
Confront, cross-examine, and require witnesses to be present;
Receive a written or electronic copy of findings of fact and decisions;
Obtain a written or electronic record of the hearing (at no cost for parents).
In addition, you have the right to request that the hearing be open or closed to the public, have your child present at the hearing, and have an interpreter provided.
Decisions of hearing officers are binding on all parties but may be appealed to a State or Federal Court within ninety (90) days of the final decision. If you are the prevailing party in the decision, you may be awarded reasonable attorneys’ fees either by agreement with the District or by a court. If you are not the prevailing party, a court may award the District its attorneys’ fees against your attorney if the due process complaint is found to be frivolous, unreasonable, or without foundation. A court may also award the District its attorneys’ fees against you or your attorney if the due process complaint was presented or maintained for any improper purpose, such as to harass, to cause unnecessary delay, or to needlessly increase the cost of litigation.
Placement of Student During Due Process Proceedings
Except for certain alternative educational placements (see “Information About Discipline” in this guide), during the process of resolving a disagreement through a due process hearing, your child will remain in his or her current placement and will receive the services he/she was receiving at the time the due process hearing was initiated, unless you and the District agree to some other arrangement. If the disagreement involves an application for initial admission to public school, your child, with your consent, will be placed in the public school program until the completion of all proceedings.
If the complaint involves a student who is transitioning from services under Part C of the IDEA (ages 0-3) to services under Part B (ages 3-22) and who is no longer eligible for Part C services because the child has turned three, the District is not required to provide the Part C services that the child has been receiving. Rather, during the due process proceedings, the District is required to provide those special education and related services offered in the student’s IEP that are not in dispute.
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