Special Education - Due Process

For Severely Autistic Children Only

Our special education law practice is limited only to autistic children with Regional Center eligibility. This limitation is based upon the experience that our office specifically has with autistic individuals. Therefore, in regards to a due process complaint, we do not represent families where the child exclusively has ADHD, Intellectual Disability, Epilepsy, Cerebral Palsy, etc.

Do you think you should bring a special education administrative claim against your school district? If yes, our office is prepared to file an appeal (lawsuit) on your child’s behalf with the California Office of Administrative Hearings (“OAH”) – Special Education Division.

Typically, our office charges a flat fee for due process attorney representation; but sometimes due to the complexity of the case we charge based on an hourly fee (call for a free quote). We do not accept contingency cases. Most often, our cases result in all or part of the attorney fees reimbursement by the school district, but that cannot be guaranteed.

Generally, we do not attend IEP meetings; as we most often take over when all efforts have been exhausted. However, we will attend an IEP meeting to make certain that the school district has had an opportunity to respond favorably without the need for costly litigation (e.g., present expert opinion to the IEP team).

A due process complaint is a filing by a parent for his/or child on matters related to the:

  • identification;
  • evaluation; or
  • educational placement of a child; or
  • provision of FAPE services to the child

The federal law known as the Individuals with Disabilities Education Act (“IDEA") requires school systems (called public agencies) to have procedures in place that make due process available to parents and public agencies to resolve a dispute involving any matter arising under the IDEA. These procedures include both the due process complaint and the due process hearing.

Due Process Complaints – Summarized

A special education due process complaint against a school district must meet the content requirements as specified in the IDEA section 300.508(b). Whenever a due process complaint is received, the parents and local educational agency (LEA) involved in the dispute must have an opportunity for an impartial due process hearing [section 300.511(a)]. That’s why filing a due process complaint is the first step in the process that may lead to a hearing or a formal proceeding to resolve conflicts between parents and schools.

Complaints must be written, signed, and include a statement that a public agency has violated a requirement of the IDEA, as well as the facts upon which the statement is based. Complaints must include specific information. A party may not have a hearing until the party (or the attorney representing the party) files a due process complaint that includes this information [300.508(c)]. The party filing a due process complaint must provide a copy to the other party and forward a copy to the public educational agency/school district [IDEA section 300.508(a)(2)].

Jeffrey Gottlieb, Attorney
Jeffrey Gottlieb, Attorney

Information the Complaint Must Include:

As spelled out by the IDEA at section 300.508(b), the due process complaint must contain specific information in order to be considered “sufficient.” This information is:

  • the child’s name;
  • the address of the child’s residence;
  • the name of the child's school/district
  • a description of the nature of the child’s special education requirements relating to the school's proposed action or refusal that’s causing the conflict, and facts upon which the complaint is based, and
  • a proposed resolution of the problem to the extent known and available to the person filing the complaint.

Who determines that the complaint contains all the required information?

A due process complaint is deemed “sufficient” unless the party receiving the due process complaint notifies the hearing officer and the other party in writing, within 15 days of receiving the due process complaint, that the notice does not meet the sufficiency requirements [IDEA section 300.508(d)(1)].

Within five days, the hearing officer must then make a decision based on the fact of the due process complaint whether it is legally sufficient and immediately notify the parties in writing of the determination. If the hearing officer rules that the due process complaint is not sufficient, the decision will identify how the notice is insufficient so that the filing party can amend the notice.

If the due process complaint is determined to be insufficient and is not amended, the due process complaint could be dismissed (71 Fed. Reg. 46698).

Jeffrey Gottlieb, Attorney

Time Limits on Filing a Complaint

Generally, due process complaints must allege a violation that occurred not more than two years before the date the parent or public agency knew or should have known about the alleged action that forms the basis of the due process complaint.

Call us if you are ready to proceed ahead with a special education due process administrative filing against your child's school district. Your special needs child has a right to a free and appropriate public education.

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