Special Education and Regional Center Blog
Helping Parents Navigate the Special Education, the Regional Center, and IHSS program.
What is a CDE Compliance Complaint
If the district is not following the IEP or has violated special education law or procedure, you could consider filing a Compliance Complaint with the California State Department of Education (CDE). Some reasons to file a Compliance Complaint would be failure to provide a service in the IEP, failure of the district to follow timelines, or failure to implement a due process hearing decision or mediation agreement. Compliance Complaints can include violations that happened one year prior to filing the complaint.
Sometimes it makes sense to file a Compliance Complaint when it is clear that a district is not following the IEP or to compel the district to comply with a settlement agreement. Sometimes due process might be more apporiate such as when alleging lack of FAPE or for violations longer than a year ago. (Here is a blog post about due proces.)
After the Complaint is filed, the CDE will then investigate and determine whether the district was “out of compliance” with the law or with the student’s IEP. The CDE could order the district back into compliance and to submit a “corrective action plan.”
Form of Compliance Complaint
In the letter to the CDE you should include:
You also need to send a copy of the complaint to the district.
See Model Complaint Form here: https://www.cde.ca.gov/sp/se/qa/cmplntproc.asp
Where to File Complaint
Send complaints by mail, fax, or email to:
California Department of Education
Special Education Division
Procedural Safeguards Referral Service (PSRS)
1430 N Street, Suite 2401
Sacramento, CA 95814-5901
Fax: 916-327-3704 (Attention: Complaint Resolution Unit)
E-mail signed PDF or scanned request to: email@example.com
Investigation of the Complaint
After you file the complaint, the CDE has 60 days to carry out any necessary investigation and to resolve the complaint. In some situations, the 60 day timeline maybe extended. An investigator will contact you and the district to gather information. Other information can be gathered through reviews of service logs and schedules, assessments, IEPs and other on-site investigations.
Once the CDE makes its determination, they must immediately notify you of its decision. If the investigation determines a failure by the district to comply with the law, the CDE may require “corrective action.” The corrective actions could include: convene a new IEP meeting, conduct further assessments, submit plans outlining proposals to correct violations and prevent future ones, initiate personnel training in the areas of violations, provide compensatory education or reimbursement, review and revise procedures and practices, and/or participate in monitoring and reporting activities. The CDE investigation report must set forth the timelines the district must follow to correct its violations.
If you Disagree with the Report
You, or the district can request reconsideration of the Investigation Report if you do not agree with the Report. If you don’t agree with the report, within 35 days after receiving the report you should submit a written request identify the finding(s), conclusion(s), or corrective action(s) about which there is disagreement. You should also provide any documentation or other information not previously considered. The CDE has 35 days to review the reconsideration and issue a final investigation report.
What happens if corrective actions are not completed?
The CDE ensures compliance by applying a range of sanctions.
A special education Due Process case begins when I file a due process complaint with the Office of Administrative Hearings (OAH). There are a few different types of complaints, but I will Request for Mediation and Due Process Hearing. That means that there will be a mediation and a hearing, if necessary. Note, almost all (like 97%) cases settle at mediation or shortly thereafter.
Below is excerpts from the Special Education Handbook from OAH.
1. Resolution Session
A resolution session is generally a meeting between a student's parents and representatives of the district who include someone from the IEP team who has specific knowledge of the facts involved in the dispute and someone who has the authority to make a decision on behalf of the district. A resolution session is required if a student's parents file for a due process hearing. It is not required if the district files for due process. The district must arrange for a resolution session within 15 days after it receives a student’s complaint.
The idea of the resolution session gives parents time to try to come to an agreement with the district. There is no judge at the meeting and neither party is allowed to have an attorney present unless the parents choose to have an attorney at the meeting.
I generally like to attend the resolution sessions with or without parents because it is an opportunity to settle the case. However, it is very rare for the case to actual be settled at the resolution. Additionally, especially in LAUSD the district is not prepared to settle the case at the resolution session. Therefore, since it is not worth my or your time to attend the resolution sessions in person. I often attend the resolution sessions over the phone with or without parent also on the phone. For LAUSD cases, there is really no reason for parent to be on the line. The cases never settle at the resolution session.
Prior to the resolution session, I like to have a phone conversation with you to discuss exactly what we want to request from the district. I like to discuss two list. One, what we want to first ask for and second, what we will settle for. For example, our opening offer of compensation education (“comp. ed.”) might be 50 hours, but we know we will settle it for 15 hours.
Mediation is a private, informal meeting that takes place between a parent(s) and representatives from the district. The purpose of the meeting is to try to solve the issues in a due process complaint without a hearing. All mediations are voluntary. That means that the mediation will only take place if both sides want to attend. No one can force parents or the district to attend the mediation. However, it is very useful to go to the mediation. About 70 percent of all cases reach an agreement at the mediation. About another 25 percent of the cases come to an agreement after a mediation takes place but before the hearing starts.
The entire mediation process is confidential. No one is supposed to talk about what is said or agreed to during the mediation. Nothing anyone says or agrees to can be brought up at a hearing if the case does not settle. Because mediation is confidential, the mediator does not talk about what happened at the mediation after the mediation is over. If the parties do not settle the case at the mediation, a different judge will handle the hearing. The mediator does not talk about it with hearing judge. The judge at the hearing will know only that mediation took place and that the parties did not come to an agreement.
The parties meet at the mediation location, which is usually the school district office or at a school in the district. Sometimes, the mediator will talk separately to parents and separately to the district representatives before all parties meet together. Generally, everyone first will meet together in an office or conference room. The mediator will introduce him or herself and explain their role in mediation. The mediator explains what mediation is. The mediator will explain that the meeting is confidential. OAH has a sign-in sheet for all parties and their representatives to fill out. There is another form used to inform OAH whether the case settled during the mediation. All parties sign this form. Once the issues have been discussed, the mediator will often start meeting separately with each party. There will be separate offices or rooms for the parties to meet alone with the mediator. The mediator will often go between the two rooms to discuss issues with each party. During these meetings, the mediator will ask questions about the case. The mediator will sometimes make suggestions about ways to resolve the issues.
The mediation can take a long time to finish the settlement agreement. You should plan on attending for at least 3 to 4 hours, and longer if the case is more complicated.
I like to schedule a short call with you prior to the mediation. We will discuss how the settlement discussions are going and what we want to request at the district.
3. Settlement agreement
If the parties agree on some or all of the issues, they must put the agreement in writing. Often, the district’s attorney or the district representative will type a proposed agreement. The parties making the agreement must sign the agreement. If they have an attorney, the attorney often will sign showing that the attorney approves the form of the agreement. Each party will get a copy of the agreement.
Generally, a settlement agreement includes a provision for payment of attorney’s fees. The district will pay for the student’s attorney’s fees. This is generally how I get paid.
Once all the parties have signed the agreement, it is final. All the parties must do what they agreed to do in the agreement. OAH does not have the power to force the parties to follow the settlement agreement. If one of the parties fails to do something that they are supposed to do by the terms of the agreement, the other side can go to court. They can ask the court to order the party to follow the settlement agreement.
Sometimes, a settlement agreement is only final after approval by a school board. The mediator will find that out early in the process. If board approval is necessary, it may delay the final approval of the settlement by a few weeks as Board meetings are planned in advance. Settlement approvals are handled by school boards confidentially, meaning that the agreement and any facts pertaining to the student will not be public. If Board approval is needed, OAH will schedule a “Status Conference.” This is a telephone conference where OAH will contact the parties to ask if the Board has approved the settlement agreement. If the board approves the settlement agreement, the person who filed the complaint must file a dismissal of the case. If a dismissal is filed, the case is closed and the Status Conference will be cancelled. If a dismissal is not filed, the Division Presiding Judge of OAH will convene call the parties for the status conference to ask whether the settlement was approved.
4. Due process hearings
Most parties reach an agreement before the due process hearing. A majority of cases settle with the help of a mediator. Even if the parties have cancelled mediation or want a second mediation, they may agree to a date for it and send a written request to OAH. OAH will generally schedule the mediation on the date selected by the parties.
A due process hearing is the next step if the case is not settled. The hearing is a trial-like proceeding. All parties have the opportunity to present their evidence and arguments. All witnesses are placed under oath. Each party may testify, ask witnesses questions, and present their evidence. Usually, the party that filed the complaint goes first.
The hearing will focus on the issues in the due process request. The evidence offered by each party must be relevant to those issues. “Relevant evidence” means evidence that has a tendency to prove or disprove a fact that is in dispute in the case. The judge will allow only relevant evidence during the hearing.
The party that filed the request has the “burden of proof.” The “burden of proof” refers to which party must produce enough evidence to prove their case. For example, if parents have filed the due process request, then parents have the burden of proof. If the district filed the due process request, then the district has the burden of proof. The standard of proof is a “preponderance of the evidence.” A “preponderance of the evidence” is a measurement that compares the evidence from both sides to see which side is stronger. Some people describe a “preponderance of the evidence” as “the 51 percent Rule”, or, as if a scale tips slightly in one direction. If the party with the burden of proof does not meet their burden, they do not win the case. The judge decides if the burden has been met.
It should be discussed prior to filing the due process complaint if your case is one that should go to hearing. If so, careful preparations for time and money need to be taken at that time. As discussed above, most cases settle at mediation or shortly thereafter.
What is inclusion?
Inclusion is when a student that is eligible for special education is placed in a general education classroom. Sometimes this is called mainstreaming. Inclusion looks different for each student. Sometimes the students spends the entire day in the general education classroom and is only pulled out for services like speech or OT. Or the student could spend most of his or her time in the general education classroom, but is pulled out just for certain subjects such as math.
What is the law?
Every student who receives special education and related services must be educated with non-disabled peers to the “maximum extent appropriate,” and may be removed from the regular education environment only when the nature and severity of the student’s disabilities is such that education in the general education setting with the use of supplementary aids and services “cannot be achieved satisfactorily.” (See 34 C.F.R. §300.114).
Additionally, the district must place the student in the Least Restrictive Environment (LRE). LRE requires the district must place your child in a placement that is the least restrictive that the child can accomplish his or her goals. LRE allows that to the maximum extent appropriate, your child should be placed with non-disabled peers. See Blog Post here.
Four Factors to Consider.
There are four factors or test that the courts have developed to consider when determining whether mainstreaming is appropriate. (See Sacramento City Unified School District v. Rachel H., 14 F.3d 1398, 1404 (9th Cir. 1994) Factors to consider when determining whether mainstream is appropriate:
Note, no court has thoroughly analyzed the fourth factor.
Why is it Important.
I love this SWIFT document entitled Research Support for Inclusive Education and SWIFT from January 2017. The report highlights that thirty years of research shows that when students with varied learning and support needs learn together, they experience better academic and behavioral outcomes, social relationships, high school graduation rates, and post-school success. Who doesn’t want that for their child? Another important consideration with mainstreaming is that ALL students, not just the ones with a disability do better. Your child with a disability is not a charity case, but just the opposite, your child is helping all students in the classroom.
Here are some highlights of different research:
Is Inclusion for Everyone.
No, inclusion is not for every student. Sometimes a student needs a smaller group setting or more individualized attention. However, inclusion could work for lots of students that are not currently being included. Also, sometimes inclusion does not work because it is not being done correctly. Before deciding inclusion is not for your child, it should be implemented correctly. Please contact me with any questions about inclusion.
Guest Post: Shannon Liu Shair is a fellow heart mom and estate planning attorney. It is very important for families with special needs children to plan for their futher. Below is an explaination about what this planning entails. For more information visit www.liushairlaw.com.
As a mom of a child with medical complications, an Estate Planning attorney, and someone who has experience with the special needs community, I understand the importance of getting preparations done. When you have a child who is receiving supplemental services, has an Individualized Education Program (IEP), or otherwise needs access to different resources, there is a lot to think about. The last thing we want to think about is what would happen to our children should we not be around anymore.
When we work so hard to provide for our families, and particularly for those whose children receive government benefits (e.g. SSI, Medi-Cal), it’s crucial to consider Estate Planning and Special Needs planning.
Now, what is Estate Planning?
What is Special Needs Planning?
Why is this important?
What would this do?
When should you consider Estate Planning/Special Needs Planning?
I hope this was helpful! This process can seem overwhelming so it’s important to find the right attorney, make the connection, and start working together to develop a customized and comprehensive plan for your family.
If you live in California (we are located in the East Bay in Fremont) and would like to learn more about Estate Planning, please get in touch at firstname.lastname@example.org or visit the website at www.liushairlaw.com
I have read and re-read the Lanternman Act to put together this chart of Regional Center Timelines. I drafted it so I could have the timelines in one centeral place. I tried to make it as clear as possible, but it is still a bit confusing. For instance, the Lanternman Act references three types of days, "business days," "working days," and "days." Just days are calendar days and I am not exactly sure the difference between business days and working days. I hope you find it helpful.
Click here for the pdf.
About 20 days before the IEP meeting (or as soon as possible after you get notice of the meeting) you should send a letter/email to the entire IEP team with the following information:
1. Request Assessments.
In my opinion this is the most important thing parents should do before the IEP. Request that you receive drafts of all assessments 5 days before the IEP so that you can review them and discuss them at the IEP.
2. Outside Assessments.
If you child receives any services outside of school, you should provide the district with any assessments or reports to the IEP team. If there are any new medical diagnosis or reports also provide this to the IEP. In you letter/email to the IEP team include these outside assessments.
3. Your Team.
Notify the IEP Team in your letter/email who you plan to bring to the IEP. This could be an advocate, attorney, friend, or another service provider. If you child receives ABA therapy at home, you can request that the supervisor attend the IEP meeting. I often find they are very helpful members of the IEP team.
4. Interpreter or Other Accommodations.
If you need an interpreter or another accommodation because of your disability let the IEP Team know about your needs.
5. Recording the IEP.
Let the IEP team know that you will record this IEP meeting and any IEP team meetings in the future.
Whatever way you send the letter, make sure you have evidence that the letter was received. If you send it by mail, send it return receipt requested. If by fax, make sure you have a report of the fax being received. If by email, make sure that it is a valid email address and it is not bounced back. If you hand-deliver it to the school, bring two copies and request that the school stamps both with received and the date. Save one for yourself and the other one is for the school.
Please contact me to discuss this further or if you would like me to attend your IEP.
Dear IEP Team:
The purpose of this letter is to request that all assessments be provided to me five days prior to the IEP on ________IEP. The assessments can be provided via email at ___________.
Attached please find assessment/report/letter from ________ regarding speech/OT/PT for consideration by the IEP Team.
I plan on bringing _________, ___________, and ____________ to the IEP with me.
I need a [Spanish] interpreter at this meeting and all other meetings. I also need the room where the IEP meeting will be held (and all future IEP meetings) to be wheelchair assessable to accommodate my wheelchair.
I will be recording this IEP and all further IEP meetings.
Please contact me should you have any additional questions or concerns.
I think this issue can be viewed from two different angles: educational records and parent participation.
California law states that a district must priovide parents with a student's records within five business (not school days) days after parents' request. A draft IEP would be considered a student record, and the district must provide a draft IEP within five days from the request by a parent.
In addition to a draft IEP, I always advise my clients to request any assessments to be discussed at the IEP five days prior to the IEP.
Always make this request in writing. A simple request could be: "Please provide any assesments, draft goals, or a draft IEP five business days prior to the IEP to ensure adequate time for me to review the documents and parent participation."
An issue might come up if the draft IEP is not created enough time before the IEP to be able to be provided. For instantance, the draft IEP or goals might be created on on the morning of an IEP schecduled for the afternoon.
Another reason that the district would need to produce the draft IEP or draft goals prior to the IEP is so that the parent can fully participate in the IEP.
The IDEA and courts consistently emphasize how important parent participation is in the IEP process. The U.S. Supreme Court explained, the IDEA requires school districts to develop an IEP for each child with a disability, and in doing so they must ensure that parents play “a significant role in the IEP process.” Schaffer v. Weast, 546 U.S. 49, 53, 126 S. Ct. 528, 163 L. Ed. 2d 387 (2005); see also 20 U.S.C. §§ 1412(a)(4) and 1414(d). A parent is a required and vital member of the IEP team. 20 U.S.C. § 1414(d)(1)(B)(i); Cal. Ed. Code §§ 56341(b)(1), 56342.5.
What to Do If You Haven’t Received a Draft IEP or Draft Goals
If you haven’t received assessments, a draft IEP, or draft goals prior to the IEP you have a few options. One would be to just go forward with the IEP the best you can and read as you go along.
Another option would be to start the IEP, but say at the beginning of the IEP since you did not receive the [assessment, draft IEP, and/or draft goals], that you will need to continue the IEP. Then ask the team when they are available for a continued IEP. Sit there and figure out a date to continue the IEP.
The final option (and maybe my favorite) is to start the IEP and say that since you just received the [assessment, draft IEP, and/or draft goals] that you will need to read them over and then the IEP can continue. Tell the team that it will take about 30 minutes, they should go to the restroom or get a snack, and then you will be able to fully participate in the IEP. Don’t start the IEP until you have read the documents and are prepared to discuss them during the IEP.
Please contact me if you want to discuss this issue futher or have any questions.
In a “Dear Colleague Letter” dated January 9, 2017, the United States Department of Education clarified that preschool children should have access to “inclusive high-quality early childhood programs where they are provided with individual and appropriate supports to enable them to meet high expectorations.”
What does this mean?
It means two things. First, the requirement of Least Restrictive Environment (LRE) (see blog post), applies to preschool placements. Meaning, in general, that the district must place your child in a placement that is the least restrictive so that your child can accomplish his or her goals. LRE allows that to the maximum extent appropriate, your child should be placed with non-disabled peers.
Second, many district do not have general education or inclusive preschool options. The district is not required not obligated to create one solely to meet the law’s LRE requirement, However, the district must explore other general education or inclusion options, such as placing a child in another district’s program, HeadStart, community preschool program, or a private preschool.
What happens if the district says that they only have a special day class (SDC) for your child?
The district must explore other general education or inclusive programs. Your preschool aged child is entitled to be educated with general education peers, to the maximum extent possible. Often, preschool aged children have not been placed in school and are a clean slate to try a general education classroom. Meaning, the district can’t say that your child can’t be successful in a general education classroom, because the child has never been in a general education classroom. They are obligated to try the general education placement.
Helping families obtain general education preschool placements in private preschools has been one of the more rewarding outcomes for me personally. All studies show that children do better in general education classrooms, and preschool children have this right too. If you have any questions regarding preschool general education placements, please contact me.
Can a District have an IEP without Parents?
A client called me last week and said that the district set an IEP for a certain date, but the parent was unavailable on that date. The parent asked the district to reschedule and the district said that was the only date they had available. The parent asked me what to do.
First, what does the law saw about parent participation?
Full and effective parental participation is an integral part of the IEP process. Parents must be given opportunities to participate in any decision-making meeting regarding their child’s special education program. Parents have the right to participate in IEP team meetings about the identification (eligibility), assessment, or educational placement of your child and other matters relating their child’s FAPE. (20 USC 1414[d] B–[d][D]; 34 CFR300.321; EC 56341[b], 56343[c])
The U.S. Supreme Court explained, the IDEA requires school districts to develop an IEP for each child with a disability, and in doing so they must ensure that parents play “a significant role in the IEP process.” Schaffer v. Weast, 546 U.S. 49, 53, 126 S. Ct. 528, 163 L. Ed. 2d 387 (2005); see also 20 U.S.C. §§ 1412(a)(4) and 1414(d). IDEA’s procedural mandates also require that the parent be allowed to meaningfully participate in the development of the IEP. Bd. of Education v. Rowley, 458 U.S. 176, 207-208 (1982).
A parent is a required and vital member of the IEP team. 20 U.S.C. § 1414(d)(1)(B)(i); Cal. Ed. Code §§ 56341(b)(1), 56342.5.
What type of Notice Must the District Give Parents?
The district must take steps to ensure that one or both of the parents of a child with a disability are present at each IEP Team meeting or are afforded the opportunity to participate, including notifying parents of the meeting early enough to ensure that they will have an opportunity to attend; and scheduling the meeting at a mutually agreed on time and place. 34 C.F.R. § 300.322(a).
The notice required must indicate the purpose, time, and location of the meeting and who will be in attendance; and (ii) Inform the parents of the provisions in the law relating to the participation of other individuals on the IEP Team who have knowledge or special expertise about the child. 34 C.F.R. § 300.322(b).
Can the district hold a meeting without parents?
If neither parent can attend an IEP Team meeting, the district must use other methods to ensure parent participation, including individual or conference telephone calls or other alternative methods. 34 C.F.R. § 300.322(c).
However, a meeting may be conducted without a parent in attendance if the district is unable to convince the parents that they should attend. In this case, the district must keep a record of its attempts to arrange a mutually agreed on time and place, such as (1) Detailed records of telephone calls made or attempted and the results of those calls; (2) Copies of correspondence sent to the parents and any responses received; and (3) Detailed records of visits made to the parent's home or place of employment and the results of those visits. 34 C.F.R. § 300.322(d).
Yes the district could theoretically hold an IEP meeting without a parent if they gave ample notice, tried to find another date, allowed for other methods for parent participation, and kept very detailed records. I only see an IEP happening if a parent does not act in good faith in scheduling an IEP or if a parent flatly refuses to attend an IEP.
However, in the opening situation when the parent was not available on the date the district selected, and the district saying that is the only date available, is not acceptable or allowable.
Get more information like this:
My last Blog Post focused on Eligibility for Special Education. This post will outline the three different ways to find a child eligible for Special Education under Specific Learning Disability (SLD). Specific Learning Disability is the largest category for eligibility in California, with SLD accounting for about 50% of eligibility for Special Education. This information was taken from California Dyslexia Guidelines.
California law describes three ways for determining whether a student has a specific learning disability. Those three ways are:
1. Severe Discrepancy
The student has a severe discrepancy between intellectual ability and achievement in oral expression, listening comprehension, written expression, basic reading skill, reading comprehension, mathematical calculation, or mathematical reasoning. The decision as to whether or not a severe discrepancy exists shall take into account all relevant material which is available on the pupil (Title 5, California Code of Regulations [CCR] 3030[b][B]).
2. Response to Intervention (RTI)
The student does not achieve adequately for his age or to meet state-approved grade level standards in one or more specified areas when provided with learning experiences and instruction appropriate for the student’s age or state-approved grade-level standards, even when educators use processes based on the student’s response to scientific, research-based intervention (5 CCR 3030[b][C] and [i]).
3. Pattern of Strengths or Weakness
The student does not achieve adequately for his age or to meet state-approved grade-level standards in one or more specified areas when provided with learning experiences and instruction appropriate for the student’s age or state-approved grade-level standards, and the student exhibits a pattern of strengths or weaknesses in performance, achievement, or both, relative to age, state-approved grade-level standards, or intellectual development, that is determined by the group to be relevant to
the identification of a specific learning disability, using appropriate assessments (5 CCR 3030[b][C] and [ii]).
Please contact me should you want to discuss SLD further.