Due Process and Mediation

• Important note: The term “parent” refers to a natural parent, adopted parent, or legal guardian (EDC §49061). Any rights afforded to the parent are transferred to the adult student when they reach the age of majority (age 18), except in cases when a student with a disability has been deemed unable to make their own educational decisions under California Law. Therefore, references to the parent may also include adult students. “Local Education Agency (LEA)” is defined by California state law as a school district, a county office of education, a nonprofit charter school participating as a member of a special education local plan area, or a special education local plan area (EDC §56026.3) 

What is Due Process? 

The Individuals with Disabilities Education Act (IDEA) requires Local Education Agencies (LEAs) to provide access to due process and the protections conferred by procedural safeguards. Due process hearings are a principal method for resolving disputes related to identification, evaluation, placement, or provision of Free and Appropriate Public Education under IDEA (34 CFR §300.511). 

What are Due Process Protections?

Due process protections include the option of a mediation conference, the right to examine pupil records, and the right to a fair and impartial administrative hearing at the state level before a person knowledgeable in the laws governing special education and administrative hearings. Specific procedures and timelines are provided below.

When May Due Process be Filed?

A parent or LEA may initiate due process hearing procedures under any of the following circumstances:

• There is a proposal to initiate or change the identification, assessment, or educational placement of the student or the provision of a free appropriate public education to the student; 
• There is a refusal to initiate or change the identification, assessment, or educational placement of the student or the provision of a free appropriate public education to the student; 
• The parent(s)/guardian(s) or adult student refuses to consent to an assessment of the student, with the exception of initial assessment; 
• There is a disagreement between parent(s), guardian(s), or adult student(s) and the LEA/district regarding the availability of a program appropriate for the student, including the question of financial responsibility.  

(34 CFR §300.148)  If programs and services are not provided according to the IEP, the parent may also file a complaint with the California Department of Education (CDE). Please refer to the procedural guide section titled “CDE Complaint and Investigation Procedures” for more information on filing a state complaint.

How is a Request for Due Process Hearing Filed and What Must it Contain? 

To request a due process hearing a parent or LEA should file a written request with the Office of Administrative Hearings (OAH). Under IDEA, there is no right to a due process hearing without a valid complaint. To be considered valid, a due process complaint must contain: 

• The student’s name, address, and school of attendance; 
• A description of the problem with specific related facts; and 
• A proposed resolution with specific related facts.

To file for mediation or a due process request, a parent or LEA/District may utilize the following methods: 

Upon receipt, OAH will send both parties a Scheduling Order with notification of the dates for the prehearing conference, the hearing, and the date by which the parties must submit a request for mediation. 

A complaint, as well as other documents sent to OAH, must be "filed" and "served." “Filing” a document refers to sending a document to OAH where it is intended to be part of a case and seen by a judge. All documents and attachments used to communicate with OAH about the case must also be “served”, or provided to the other party or parties in the case. For example, if a parent files a complaint with OAH against an LEA, the parent must send a copy to the LEA. If an LEA files a complaint with OAH, it must send a copy to the parent(s). Proof of serving a document on the other parties must then be sent to OAH to show that the other parties have a copy of the document. This is called either a Statement of Service (also called "Proof of Service"). OAH provides optional forms including Request for Due Process Hearing and Mediation and Proof of Service forms which can be accessed by visiting the Forms page of the OAH website. 

A due process request shall be deemed sufficient unless the party receiving it notifies OAH in writing that the complaint does not meet the requirements. LEAs may file a motion to dismiss those complaints that do not meet requirements per IDEA. Such motions must be filed within 15 days of receipt of the complaint. If the LEA chooses not to file a motion to dismiss based on the contents of the complaint, it is assumed that the LEA accepts the complaint as is, and the LEA may be required to defend an incomplete complaint at a due process hearing. Therefore, it is important that the LEA evaluate each new complaint as it is received. A party may amend a due process complaint only for two reasons: 

• The other party consents in writing to the amended complaint 
• OAH grants permission for the amended complaint. Due process timelines start over with an amended complaint

What Happens After a Due Process Request is Filed? 

Once a valid due process request is received from the parent(s), the LEA must, within 10 calendar days of receipt, provide a written response to the complaint. The response from the LEA to the parent(s) shall include all of the following:  

• An explanation of why the agency proposed or refused to take the action raised in the due process hearing request 
• A description of other options that the individualized education program team considered and the reasons why those options were rejected 
• A description of each assessment procedure, assessment, record, or report the agency used as the basis for the proposed or refused action 
• A description of other factors relevant to the proposed or refused action of the agency. [34 CFR §300.508(e)(1)]

It is recommended that an LEA notify the SELPA immediately upon receipt of a request for a due process hearing. 

Mediation and Due Process Timelines

The hearing must be completed and a decision reached within 45 days of receipt of the request unless a continuance has been granted. The timelines for due process begin when the party named in the complaint receives the complaint from the filer.  

• The LEA is required to convene a resolution session, referred to as an alternative dispute resolution (ADR) session, within 15 days of their receipt of a due process complaint.  
• If both parties agree to a mediation conference, it must be held and completed within 15 days of receipt of a hearing request.  
• If parties proceed to a due process hearing, it must be held and completed within 30 days of the mediation conference.

Resolution Session 

As stated above, an LEA is required to convene a resolution session, referred to as an alternative dispute resolution (ADR) session, within 15 days of their receipt of a due process complaint. 

The El Dorado SELPAs utilize a local ADR process as an alternative to formal mediation and due process hearing. It should be noted that this process does not preclude the option of formal mediation or due process hearing but is offered as a positive alternative. El Dorado SELPA's personnel may serve as neutral facilitator(s) for the resolution session. Therefore, as stated above, it is recommended that an LEA provide a copy of the due process complaint to the SELPAs immediately upon receipt to allow the SELPAs, LEA, and parent(s) to schedule and convene an APR session within the 15-day timeline. 

Attendees at a resolution session may include the parent, LEA representative(s) with decision-making authority, and the facilitator(s). The purpose of this session is to foster early resolution of the concerns prompting the request for a due process hearing. The meeting shall not include an attorney of the LEA unless the parent(s) is accompanied by an attorney. 

If a parent(s) brings an attorney, that attorney is not entitled to recover fees from the LEA for attending the resolution session. The resolution session is similar to mediation but without the assistance of a formally trained mediator. If an agreement is reached at the resolution session, OAH must be notified to remove the matter from the hearing. An IEP meeting may be scheduled as needed to document any changes to the IEP that are required as a result of an agreement reached within the resolution session. 

If concern(s) remain(s) unresolved after the resolution session is held, the LEA may inform the parent(s) student that either: 

• The LEA will participate in a mediation conference; or 
• The LEA waives the mediation conference and is proceeding directly to the due process hearing before a state hearing officer.

Please note that in the event that the LEA files for mediation-only or a due process hearing, a resolution session is not required but may still be offered and held. For more information, please refer to the procedural guide section titled Alternative Dispute Resolution (ADR) and Resolution Sessions. 

Mediation 

Mediation is a voluntary process through which parties seek mutually agreeable solutions to education disputes with the help of an OAH Administrative Law Judge serving as a neutral mediator. Parent(s) or LEAs may seek “mediation only” without request for a due process hearing or they may participate in mediation as an element of due process. Mediation cannot be used to delay a parent’s right to a due process hearing. 

Mediation Only 

A parent(s) or LEA may request a mediation-only conference if desired. Requests for mediation only are filed with the OAH. To request mediation only, a party should submit a request to OAH along with a Statement of Service showing that the request was sent to the other party or parties. Both the parent(s) and the LEA must voluntarily agree to participate. OAH provides an optional form called "Request to Set Mediation," which can be found on the OAH Forms page. 

Attendees at a mediation-only session should include the parent(s), LEA representative(s) who has the authority to make decisions, and the mediator (who is assigned by the OAH). An interpreter may be required if a parent(s) requests one. A parent(s) or the LEA may be accompanied and advised by non-attorney representatives. Attorneys or other independent contractors used to provide legal advocacy services may not participate in the mediation-only conference. 

A mediation-only conference is scheduled by an OAH Administrative Law Judge within 15 days of receipt of the request, and at a time and place reasonably convenient to both parties. If a resolution is reached, both parties execute a legally binding written agreement, which also states that conference discussions are confidential and may not be used in any subsequent request for a due process hearing. 

If the issues fail to be resolved to the satisfaction of all parties, the party who requested the mediation-only conference has the option of filing a request for a due process hearing. The mediator may assist the parties in specifying any unresolved issues to be included in the request for a due process hearing. 

Mediation and Due Process Hearing 

Special education mediations may also occur as part of a due process hearing case. Either an LEA or parent may file a Request for Due Process Hearing and Mediation, requesting OAH set a hearing date. Upon receipt, OAH will send to the other party and to the party requesting the hearing a Scheduling Order setting a hearing date and a date for a prehearing conference.  

OAH will not set a mediation date in a due process hearing case unless the parties submit a joint request for mediation with agreed-upon mediation dates. The scheduling order will identify the date by which the parties will need to submit this joint request for mediation. OAH provides an optional form called "Request to Set Mediation," which can be found on the OAH Forms page.

Attorneys and advocates are permitted to participate in mediation conferences scheduled upon the filing of a request for a due process hearing. A qualified, impartial mediator is appointed when mediation is agreed upon. This person must be trained in effective mediation techniques. During the mediation session, the neutral mediator facilitates communication between the parent(s) and the LEA. All parties are involved in the decision-making. 

If mediation yields an agreement by both parties, the mediation results are documented in a binding settlement agreement and signed by the involved parties. All discussions in mediation sessions are automatically confidential and cannot be used as evidence in any subsequent due process hearing or civil proceeding. The mediator will confirm that the agreement is consistent with all applicable laws and regulations. It is recommended that an IEP team meeting be scheduled as soon as possible to incorporate pertinent agreement elements into the IEP. 

A copy of the mediation agreement is sent to each party involved. The compliance status of the LEA will revert to non-compliance if they do not perform the provisions of the mediation agreement within the time specified. 

If mediation as part of a request for a due process hearing) does not yield an agreement by both parties, OAH lists unresolved issue(s) as the basis for a due process hearing and sets a hearing date and place convenient for both parties. For more information on mediation and due process hearing requests, please visit the OAH website.

Due Process Hearing 

A due process hearing must be completed within 30 days of the mediation conference or 45 days of receipt of the request for a due process hearing if the mediation conference is waived. OAH assigns a state hearing officer who is knowledgeable of administrative hearing procedures. 

All evidence (written documentation and list of witnesses) shall be exchanged by parent(s) and LEA five days before the due process hearing. The party requesting the due process hearing shall not be allowed to raise issues that were not raised in the request for a due process hearing unless the other party agrees otherwise. 

During the hearing proceedings, the student is to remain in his or her last agreed-upon educational placement, including agreed-upon services and setting, unless the LEA and the parent(s) agree otherwise. This is referred to as “stay put”. 

Hearing proceedings will be recorded verbatim and both parties will be given access to the recording. All testimony shall be given under oath or affirmation. A hearing is conducted in English with an interpreter provided when necessary. 

The decision of the OAH hearing officer shall be written in English and, as appropriate, the primary language of the parent(s) and mailed to both parties involved in the hearing. Both parties are given notice of rights and an explanation of the procedure for appealing the hearing decision to a court of competent jurisdiction. The LEA must continue to meet IEP timelines and FAPE obligations during the period of any due process proceedings and until a resolution is reached. This means that an LEA must continue to offer FAPE as identified in the last agreed-upon IEP and offer to convene IEP meetings to attempt to come to an agreement during due process proceedings, even though the parent(s) may not consent. 

If the LEA does not intend to appeal the decision made in the due process hearing, it should implement the decision as soon as possible, and in any event, within a reasonable amount of time. 

For an entire bank of resources, support regarding due process, mediation, and complaints, as well as special education decisions within OAH, please visit the Department of General Services for Special Education support page.