The due process procedure consists of a series of steps ending with a hearing if needed.
➢ Step 1 - Resolution [34 C.F.R. 300.510] Mandatory
The LEA is required to convene a meeting with the parents and relevant members of the IEP team who have specific knowledge of the facts identified in the complaint. The resolution session:
a) must take place within 15 days of the LEA receiving notice of the parent’s complaint [34 C.F.R. 300.510(a)(1)]
b) must include a district representative who has decision-making authority [34 C.F.R. 300.510(a)(1)(i)]
c) may not include an attorney for the LEA unless the parent is accompanied by an attorney [34 C.F.R. 300.510(a)(1)(ii)]
d) must provide the parents with the opportunity to discuss the complaint and the facts that form the basis of the complaint, and the LEA must be allowed the opportunity to resolve it [34 C.F.R. 300.510(a)(2)]
If an agreement is reached during resolution, either party has three business days to void the agreement.
There is no requirement for a resolution session when the LEA files a due process complaint.
➢ Step 2 - Mediation: Voluntary and Confidential
If the complaint is not settled during the resolution session the next step is voluntary mediation. The mediator is an administrative law judge (ALJ) assigned by OAH who is a neutral participant, skilled in methods of facilitating effective communication between the parties. As a mediator, the ALJ’s role is to manage the communication between the parties in order to settle the issues in the complaint. If the parties reach an agreement during mediation it is binding and the due process complaint is withdrawn. Any agreement reached or discussions during mediation are confidential and protected by law from being revealed in any other place.
➢ Step 3 - Due Process Hearing
If resolution and/or mediation are not successful in settling the complaint, the case moves to a due process hearing before a different ALJ. A telephonic pre-hearing conference will be scheduled with both parties before the first date of hearing to discuss the issues, documents, witnesses and length of days for the hearing. The ALJ from OAH is in charge of the hearing just like a judge is in a trial. The ALJ rules on all procedural matters, rules the hearing, listens to the evidence and arguments of the parties, and writes a final decision which is binding.
Chapter 7 – Procedural Safeguards, Desert/Mountain SELPA
Page 9
As of 03/15/2013
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