Dear County and District Superintendents, Special Education Local Plan Area Directors, Special Education Administrators at County Offices, Special Education Program Directors, Charter School Administrators, Principals, and Nonpublic School Directors:

COVID–19 and Special Education Dispute Resolution

The purpose of this letter is to support parents, families, parent training and information centers, school personnel, special education local plan areas (SELPAs), local educational agencies (LEAs), advocacy organizations, and other interested parties with information on alternative dispute resolution (ADR), state mediation and complaints, and due process mediation and hearings. These dispute resolution options are being provided to reiterate the importance of individualized education program (IEP) teams working together during this unprecedented time in education to address the needs of students and ensure the provision of a free appropriate public education (FAPE). Although disputes may occur, the California Department of Education (CDE) expects that LEAs will make every effort to resolve disagreements with families collaboratively and informally whenever possible.

On June 22, 2020, the United States Department of Education’s Office of Special Education Programs (OSEP) issued a Question and Answer document about Individuals with Disabilities Education Act (IDEA) Part B dispute resolution procedures in the current COVID-19 environment1. In that document, OSEP also encourages parents and LEAs to work collaboratively, in the best interest of students with disabilities, to resolve disagreements that may occur when working to provide a positive educational experience for all children. The OSEP also noted that communication between parents and public agency staff can often help resolve disagreements that may arise regarding the educational services provided to a student with a disability during the pandemic.

When there is a dispute regarding a student's special education program, disputes may be resolved through a local ADR program/process, through a complaint filed with the CDE for investigation, or through a request for a due process hearing with the Office of Administrative Hearings (OAH) for a decision by an Administrative Law Judge. With state complaints and due process hearings, parties have the opportunity to participate in mediation in an attempt to resolve the matter without the need for having a third party issue a decision.

Alternative Dispute Resolution

The ADR process is less formal than a due process hearing and intends to maintain positive relationships between families and LEA staff by working collaboratively toward solutions. ADR is a voluntary method of resolving disputes and may not be used to delay the right to a due process hearing.

Reflecting the state’s commitment to encouraging LEAs to resolve disagreements with families collaboratively and informally whenever possible, and in anticipation of an increased number of local disputes related to the COVID–19 pandemic and special education distance learning, the state legislature appropriated $8,600,000 in the 2020 Budget Act to be allocated to SELPAs to assist LEAs with establishing and improving local ADR.

These funds are in addition to the approximately $1,945,000 in ADR grant funds provided in past years to SELPAs and LEAs to develop and test procedures, materials, and training for ADR in special education. The CDE awards these grants to regional consortia that include LEAs and county offices. Selected LEAs train and implement an ADR process to respond to and resolve local complaints and concerns regarding the implementation of the IDEA, Part B and relevant state laws.

For more detailed information on your local ADR process, please contact your LEA or SELPA. For LEA contact information, you may search the CDE School Directory at https://www.cde.ca.gov/schooldirectory. For more information on SELPAs, please visit the CDE California Special Education Local Plan Areas web page at https://www.cde.ca.gov/sp/se/as/caselpas.asp.

State Mediation and Complaints

State Complaint Mediation

A request for mediation may be made for a special education complaint filed with the CDE. Code of Federal Regulations, Title 34 (34 CFR), Section 300.152(a)(3)(ii) requires the CDE provide the opportunity for a parent who has filed a complaint and the LEA to voluntarily engage in mediation. The CDE makes that opportunity available through a contract with the OAH.

Mediation is an impartial and voluntary process that brings together parties that have a dispute concerning any matter related to alleged violations of federal and state special education laws to have confidential discussions with a qualified and impartial individual. The goal of mediation is for the parties to resolve the dispute and execute a legally binding written agreement reflecting that resolution (34 CFR 300.506[b][6] and [7]). Mediation may not be used to deny any other rights afforded under 34 CFR 300.506(b)(1)(ii).

The recognized benefits of mediation include:

• The parties have more control over the process and decision-making.
• The parties have the flexibility to design their own remedies.
• The parties may have an increased commitment to, and ownership of, the agreement.
• The non-adversarial approach helps preserve the relationship between parties who may need to continue to work together, for the benefit of the child, for years to come.

It is important to note that both parties (parent and LEA) must agree to mediation. If one of the parties does not want to participate in the mediation, then the mediation will not happen and the investigation will move forward. In addition, the parent and LEA may agree in writing to extend the complaint timeline so they can participate in mediation. If parties do not resolve their dispute at mediation, the CDE will move forward with the investigation.

A request for mediation of a special education complaint may be sent to the CDE by fax to 916-327-8878, by email at speceducation@cde.ca.gov or by mail at the following address:

California Department of Education
Special Education Division
Complaint Resolution Unit
1430 N Street, Suite 2401
Sacramento, CA 95814
Fax: 916-327-8878

State Complaints

A compliance complaint may be filed with the CDE, formally requesting an investigation of an alleged violation of federal or state special education laws or regulations by an LEA. The violation must have occurred not more than one year prior to the date the complaint is received by the CDE. The written decision report will be mailed within 60 calendar days of the complaint resolution unit’s receipt of the complete complaint request., If the CDE finds the LEA out of compliance, the CDE’s report must include “corrective actions” that are required to address the needs of the student or group of students involved in the complaint and appropriate future provision of services for all children with disabilities. Complaints may concern one student or a group of students.

When filing a complaint with the CDE, a copy of the complaint must be provided to the LEA at the same time. (34 CFR 300.151–153; California Education Code [EC] 56043[p] and 56500.2).

Complaints alleging violations of federal and state special education laws or regulations may be sent to the CDE by fax to 916-327-3704, or by mail at the following address:

California Department of Education
Special Education Division
Complaint Resolution Unit
1430 N Street, Suite 2401
Sacramento, CA 95814
Fax: 916-327-3704

For more detailed information on the CDE special education complaint process please visit the CDE Complaint Process web page at https://www.cde.ca.gov/sp/se/qa/cmplntproc.asp.

Due Process Hearings and Mediation

Special education due process hearings and mediations in California are conducted by the OAH. A request for mediation with the OAH may be made without scheduling a due process hearing. This is known as the “mediation only” option (EC 56500.3). Participation in mediation is voluntary. If one of the parties does not want to participate in the mediation, then the mediation will not happen and the “mediation only” matter will be closed. A mediation conference is an informal proceeding conducted by the OAH in a non-adversarial manner to resolve issues relating to the identification, assessment, or educational placement of a child or to a FAPE. (20 United States Code [USC] 1415[b][6] and [e]). The same recognized benefits of mediation outlined for state complaints apply in the context of requesting mediation with the OAH directly.

A request for mediation with the OAH may also be made when requesting a due process hearing. Parents, legal guardians, and surrogate parents of children with disabilities have the right to request an impartial due process hearing regarding the identification, assessment, and educational placement of a child or the provision of a FAPE. A request for a due process hearing must be filed with the OAH within two years from the date of the alleged action that forms the basis of the due process complaint (20 USC 1415[b][6]; 34 CFR 300.507; EC 56501 and 56505[l]). An OAH hearing decision is final and binding on both parties (EC 56505[h]). Either party may appeal the hearing decision by filing a civil action in state or federal court within 90 days of the final decision. (20 USC 1415[i][2] and [3][A], 34 CFR 300.516; EC 56043[w]; EC 56505[k])

Federal and state laws require that either party filing for a due process hearing must provide a copy of the written request to the other party. (20 USC 1415[b][7], 1415[c][2]; 34 CFR 300.508; EC 56502[c][1])

Prior to a due process hearing taking place, the LEA shall be provided the opportunity to resolve the matter by convening a resolution meeting between the parents and the relevant members of the IEP team who have specific knowledge of the facts identified in the due process hearing request. (20 USC 1415[f][1][B]; 34 CFR 300.510)

For additional information on due process hearings and/or mediation with the OAH please visit the OAH Self-Help Information for Special Education Cases web page at https://www.dgs.ca.gov/OAH/Case-Types/Special-Education/Self-Help . Additionally, you may also contact the OAH by phone at 916-263-0880, by fax at 916-376-4207, or by mail at the following address:

Office of Administrative Hearings
Attention: Special Education Division
2349 Gateway Oaks Drive, Suite 200
Sacramento, CA 95833-4231
Phone: 916-263-0880
Fax: 916-376-4207

Procedural Safeguards

For detailed information on the special education rights of parents and children under the IDEA, Part B, and the California EC, please visit the CDE Quality Assurance Process web page at https://www.cde.ca.gov/sp/se/qa/.

Should there be any questions related to the above information, please contact the Special Education Division via email at SEDInfo@cde.ca.gov or through the contact information provided in this letter as appropriate.

Sincerely,

Heather Calomese, Director
Special Education Division
Opportunities for All Branch

HC:ja

Footnote

1 https://www2.ed.gov/policy/speced/guid/idea/memosdcltrs/qa-dispute-resolution-procedures-part-b.pdf