SPECIAL EDUCATION DUE PROCESS AND HOW IT WORKS

Introduction

This section of the website explains how due process works, walking through each step of the process and explaining how to participate in each step. 

All children with disabilities have a right to a free appropriate public education.  Below is a discussion of these rights.  The acronym "FAPE" is used to mean a free appropriate public education.  The federal law that gives these rights is the Individuals with Disabilities Education Act.  The federal law is also known as the IDEA. 

The California version of the law is in California's Education Code.  This portion of the website has two goals.  The first goal is to help students and their families understand their rights under the law.  The second goal is to help families use what is called “due process” if they believe their child is not receiving a FAPE.

This section of the website describes what due process is and how it works in California.  The IDEA intended parents to be able to use due process without an attorney.  However, parents have a right to an attorney, at their own expense. Some, but not all, parents choose to have an attorney represent them.  Parents also have the right to be accompanied by persons with specialized knowledge, although non-attorneys cannot represent parents in mediation or in hearings.  This section of the website, and the Parents’ Handbook (see below for a link), is meant to help parents understand due process whether or not they have an attorney or other help.  The Office of Administrative Hearings cannot give legal advice to anyone, but it is easier to be a part of mediation and a due process hearing if you understand the process.  This section will refer to the Special Education Division of the Office of Administrative Hearings as "OAH."

Due process begins when someone sends a request for due process to OAH.  This request is often called a “complaint.”  OAH has a form to use to request due process and other forms to use during the proceedings.  The forms have instructions printed on them and the instructions are also provided in this section of the website.  The instructions for the forms may also be found in more depth in the Handbook.  All of these instructions explain what forms are available and how to use them.  Forms are available through this website or by asking for them from the OAH office in Sacramento.  (For information on how to contact the Sacramento office of OAH, please see the "About" page.

There are many different people and agencies involved in due process proceedings.  “Parents," as used below, means parents, legal guardians, or any person or entity who is legally responsible for protecting a student's educational rights.  Students that are 18 or older have the same rights as "parents" as that term is used here.  “District" is used to refer to all educational agencies involved in making educational decisions for a student.  These agencies include:

  • School districts;
  • Special Education Local Plan Areas (commonly called SELPAs);
  • Charter schools; and
  • Other state agencies that provide services to children with disabilities.

Lastly, the term “party” means a parent, person, district or other educational agency involved in a due process proceeding.

The Office of Administrative Hearings, Special Education Division

OAH is a neutral state agency that helps solve disagreements between individuals and government agencies.  The Special Education Division handles mediations, prehearing conferences and due process hearings.

OAH provides mediators and administrative law judges who help parents and districts work out their differences in mediation or as the result of a hearing.  Judges and mediators are trained not to take sides.  Their goal is to ensure students with disabilities receive a FAPE, and to make sure everyone follows the law.  The people employed by OAH work very hard to make sure both sides receive a fair hearing process.

This website provides access to the special education case calendar, judges' assignments and profiles, searchable decisions and orders, the advisory board, and a list of attorneys and advocates that self-certify that they offer special education services at a low cost or for free.  There are links to OAH forms that can be filled out on-line and printed.

The Special Education Division has an online document filing system called the Secure e-File Transfer (SFT) system.  Private information contained in documents sent to and from OAH using SFT is more secure than other methods used to send documents such as email or facsimile.  Instructions for using SFT can be found at e-File Information.

Brief Summary of Educational Rights

  1. Children with disabilities have a right to a free appropriate public education, no matter what type of disability they have.  In California, disabled students between the ages of 3 and 22 may be eligible for special education and related services.

    FAPE means special education and related services designed for a student's unique needs.  The student's education must be designed to help the student make progress in school.  Special education must also be designed to help the student learn skills for independent living.

    Special Education means teaching that is designed to meet a student's particular needs. This education is free, may be taught in a general classroom or can be provided in a separate classroom for all or part of the school day.  Often, the student is taught by a teacher who has been trained in special education.  Sometimes the student can be taught at home, in a hospital, or in temporary residential placement like Juvenile Hall.

    Related Services are things such as transportation to and from school, speech therapy, and occupational therapy.  Other related services may also be necessary to help a student with disabilities access their education.

    An Appropriate Education means that the student's education must be reasonably calculated to provide some educational benefit to the student.  The United States Supreme Court stated this definition in a case called Board of Education of the Hendrick Hudson Central District v. Rowley.  The actual decision can be found by typing the case citation 458 U.S. 176 (1982) into your website browser.  The case was decided in 1982 and it is still the law today.

    In 2017, the United States Supreme Court wrote another decision about special education.  This recent case is called Endrew F. v. Douglas County School District.  The Supreme Court said that school districts need to offer a special education student a program that is reasonably calculated to enable the student to make progress according to the student’s circumstances.  The actual decision can be found by copying and pasting the following citation into your internet browser:  Endrew F. v. Douglas County School District Re-1, 137 S. Ct. 988.

    All special education students must have an individualized education program, often referred to as an IEP.  An IEP is a document that contains many different kinds of information about a student’s education.  Included in an IEP are: a list of how well the student is doing in school at the time the IEP is written; what the student’s strengths and weaknesses are; what areas the student will work on (called “goals”); what type of special education the student needs; what sort of classroom the student will be in; what type of related services the student will get; and what accommodations and modifications the student may need to be able to be successful at school.  IEPs are discussed in more detail below.

  2. School districts determine if a student is eligible for special education using a process called “assessment” or “evaluation.”  These terms mean the same thing.

    Many different people can ask a district to assess a student for special education.  These people include the student’s parents, student's teachers or other school personnel, and doctors and other service providers.

    A district must get written consent from a parent before the district can assess a student.  The district must send parents an assessment plan written in the parent’s native language, which must explain what areas are being assessed and how the assessment will be done.

    An assessment includes many different parts: written tests given to the student; reviews of the student’s records, including past assessments that may have been done; and interviews with the student’s teachers and parents.  The assessment is usually done by district staff members who are trained in how to give the tests and interpret the results, and who must be knowledgeable about the assessment and the tests used. 

    The assessment methods must be fair, accurate, appropriate for the student, and free of racial, ethnic, cultural, or gender bias.  If a student’s native language is not English, the student does not communicate in English, or the student has communication disabilities, the portion of the assessment directly involving the student must be in his or her primary language or mode of communication.

    The district must assess the student in all areas of suspected disability that might affect the student’s ability to benefit from his or her education and must use a variety of evaluations.  No single testing or assessment procedure can be the only means of making a decision about whether a student is eligible for special education.

    The people who do the assessment must make a written report of all parts of their assessment.  The district must then schedule a meeting with the student’s parents to discuss the assessments.  The district must make sure that the student’s parents have a copy of all the assessment reports no later than the time of this meeting.  Either the people who did the assessments or other district staff who are knowledgeable about the particular assessments must also come to the meeting to discuss the assessments and the assessment reports.  The purpose of this meeting is to determine, based on the assessment results, if the student is eligible for special education. School districts must provide an interpreter to attend the meeting if parents need that service.

    If a student is found eligible for special education, the student must generally be given a new assessment at least every three years.  The same rules that apply to the student's first assessment apply to reassessments.

    If parents disagree with the district's assessments, parents may ask the district to pay for an independent educational evaluation (IEE).  If the district does not want to pay for an IEE, the district must explain its reasons for refusing to provide the IEE to the parents in writing, and file a request for a Due Process Hearing with OAH to prove this.  The district will need to prove that the assessment was done in such a way that it was “legally compliant.”  The judge will decide if the district’s assessment was legally compliant or whether the district must pay for the parents’ IEE.  If the district does not file a complaint (due process request) the parents may file a complaint with OAH to ask OAH to order the district to pay for the IEE.
  3. If a student is eligible for special education the district must offer an individualized education program (IEP) for the student.  Each student’s IEP must be reviewed at least once a year by the student’s IEP team, and must be changed as the student’s needs change.

    The IEP Team

    The IEP must be developed by a team which must include: the student’s parents or guardians; a special education teacher; a general education teacher (if the student is or may be placed at least part of the time in a general education classroom); and a school administrator who has authority to make decisions about a student’s IEP, such as the Special Education Director or the Principal.  The student may be part of the IEP team if that is appropriate.  Sometimes, specialists such as a school psychologist may be part of the IEP team.  Someone knowledgeable about the student's assessments must participate when assessments are discussed at the IEP team meeting.  People who are required to be part of the IEP team must attend unless parents excuse them in writing.  Parents may bring other people to the IEP team meeting to provide information to the team or to advise parents during the meeting.  An example of such a person is someone with special knowledge or training about the problems of children with disabilities, a relative, a private service provider for the student, or some other professional who may have assessed the student.

    The IEP Team Meeting

    The IEP team should review the student’s assessments, observations of the student, the progress the student has made, and whether the student is eligible, or continues to be eligible, for special education.  Parents are full members of the student’s IEP team.

    Parent attendance at IEP meetings is important.  The district must try to get the parents to attend and participate in the IEP team meetings.  The district must send a written notice to the student’s parents in advance telling them the date, time, and place the district is planning to have the IEP team meeting.  If the date and time are not convenient for the parents, the parents may request a different date and time.  The district must provide an interpreter if parents need that assistance.

    Team members will discuss a number of things at the IEP team meeting.  For example:

    • Formal and informal assessments;
    • The impact of the student’s disability on academics and social skills;
    • The student's goals and current level of performance;
    • Related services needed to assist the student to benefit from the student’s education;
    • Accommodations for the student in and out of the classroom;
    • Modifications to the curriculum or specialized instruction to assist the student to benefit from the student’s education; and
    • The types of placement that might be appropriate to meet the student’s needs.

    District personnel must allow parents to fully participate in the IEP team meetings.  Parents may ask questions, provide information and offer opinions about student's needs and programming.  Parents may offer suggestions for placement, programming, services, and supports.  School districts must consider everything a parent says or asks for.  However, the district is not required to adopt proposals made by a student’s parents.

    The district may not place a student in a special education program or provide related services without their parent’s written consent to all or part of the IEP.  School districts may only implement a student's IEP without their parent's consent if the district has filed a request for due process and a judge from OAH has conducted a hearing and given the district permission.  The district must prove that the proposed special education and related services would provide the student a free appropriate public education (FAPE).

    What the IEP Document Must Include

    An IEP must be in writing and must include the student's:

    Present levels of performance:  The IEP must have a statement of the student’s present level of educational performance and special needs.  The teachers and service providers working with the student will share information about the student and how far the student has progressed during the past year based on assessment results and/or progress on goals and class work.

    Goals:  Goals are statements of what the student receiving special education and services can reasonably be expected to accomplish in areas of need during the following year. Annual education goals address the student’s needs.  The goals are developed by the student’s IEP team each year, and can be modified as needed.

    Related services:  A description of the related services that are necessary for the student to benefit from his or her education will be listed in the student’s IEP.

    Time with non-disabled peers:  The amount of time the student will participate in general education classes or activities and the amount of time the student will spend in specialized instruction settings and/or receiving related services.

    Implementation, frequency and duration of placement and services:  This section of the IEP states when a program or service will start, for how long it will continue, and for how long it will takeplace.

    Developing skills for independent living:  Independent living skills include career, vocational education, and alternatives for meeting requirements for graduation if required.  Additionally, during the year the student turns 16, the IEP will contain an individual transition plan that addresses how the student will prepare for life after high school.

    Placement:  This section discusses the location where the student will receive instruction.

    Parents are entitled to a free copy of the student's IEP at no cost to them.  The IEP must be translated into the parents' native language if they do not read English.

    The IEP must be “reasonably calculated to allow a child to make progress appropriate in light of the child’s circumstances.”  The student’s IEP must be reviewed by student's IEP team at least once a year.

  4. Sometimes, parents and their district do not agree on whether the student is eligible for special education, how the assessments were done or the results of the assessments, or what the student's educational program should be.  If that happens, the law gives parents certain rights to resolve their disagreements with the district.  Those rights include a system called “due process.”

    “Due process” is the name given to the rules that must be followed by governmental agencies when people’s rights are in dispute. It means that the government has to follow established laws, rules and legal principles.  Under due process, every person has the right to his or her day in court.

    “Due process” in special education means the rights and procedures that apply to deciding disagreements between parents and districts.  Special education due process procedures occur over a period of time.  Each step builds upon the previous steps.  It is important for parents to understand how these procedures work so they can participate.

    A “due process hearing” is the formal procedure used to decide disagreements between parents and a district.  A hearing can take place if parents and a district cannot fix the problem without a hearing.  Both parents and districts have the right to file a request for due process.

    The kinds of disagreements that may be decided by a due process hearing are:

    • Whether a student needs special education and related services;
    • Whether the assessments of a student were complete and proper;
    • Whether a district has to pay for an IEE;
    • Whether a student's IEP provides a free appropriate public education (FAPE);
    • Whether the related services in the student's IEP meet the student’s needs; and
    • Whether the placement offered in the student's IEP meets the student’s needs in the least restrictive environment.

    There are four basic principles of due process procedures.  They are:

    • Notice of what is happening;
    • A way for the parties to try to solve the problem themselves;
    • An equal opportunity to be heard at a due process hearing if needed; and
    • A fair decision from an impartial person after a hearing.

    In California, OAH provides due process services.  Judges who work for OAH are the impartial people who make the decisions at due process hearings.  These judges are trained in special education law and in administrative hearing procedure in order to conduct the hearings.

    Some of these things which judges must decide are:

    • What each side is supposed to do to solve the problems;
    • Who is responsible for doing the things in the agreement;
    • When everything needs to be done; and
    • When parents will Notify OAH that their case should be closed.