Early Start Mediation and Due Process

This is the process for resolving disagreements involving consumers or applicants who are under 3 years of age.

The purpose of this due process is to resolve disagreements between families and a regional center and/or local education agency (LEA) related to a proposal or refusal for identification, evaluation, assessment, placement, or services. Early Start is for infants and toddlers under the age of three who are at risk of having a developmental disability or are developmentally disabled or delayed, and their families. Early Start is governed by Part C of the federal Individuals with Disabilities Education Act:

§ Title 34 of the Code of Federal Regulations (CFR), Part 303 § California Early Intervention Services Act, Government Code, Section 95000 et seq. ; and § Title 17, California Code of Regulations, Sections 52000 – 52175

Any party seeking state level action on a disagreement falling into the category noted above may file a request for a voluntary impartial mediation and/or due process hearing by filing a Due Process Mediation and Hearing Request (DS 1802) form.

This form may also be obtained from the regional center, LEA or DDS. In addition, a letter of request is accepted by the Office of Administrative Hearings (OAH) in lieu of the request form if all the pertinent information is submitted and the letter is signed by the requester.

The Due Process Mediation and Hearing Request may be filed with San Andreas Regional Center:

Attention: Javier Zaldivar, Executive Director

San Andreas Regional Center

P.O. Box 50002

San Jose, CA 95150-0002

Fax: (408) 376-0586

 

Alternatively, you may contact the Office of Administrative Hearings directly:

Office of Administrative Hearings

Oakland General Jurisdiction Office

Attention: DDS Calendar Clerk

1515 Clay St, Suite 206

Oakland, CA 94612

Phone: (510) 622-2722

Fax: (510) 622-2743

Email: OakFilings@dgs.ca.gov

The impartial mediation conference and/or due process hearing will be completed within 30 days from the receipt of the request by OAH. The timely issuance of the written decision may not be delayed by any voluntary local efforts happening at the same time to resolve the matter. The decision will be final unless appealed to the superior court of appropriate jurisdiction.

While all parties are encouraged to resolve differences at the lowest administrative level possible, such voluntary resolution may occur at the same time that a request for Mediation Conference/Due Process Hearing and/or a Compliance Complaint is filed.

Lanterman Act Fair Hearings
This is the process for resolving disagreements between the regional center or state developmental center and consumers or applicants who are age 3 or older.

Governing Laws and Regulations
Fair hearings are held under the Lanterman Developmental Disabilities Services Act (Welfare and Institutions Code, Division 4.5, Chapter 7, sections 4700-4731 and Title 17 of the California Code of Regulations, Public Health Division 2, Chapter 1, Subchapter 9). These laws and regulations can be found at a law library or on the internet (http://www.leginfo.ca.gov/ and http://ccr.oal.ca.gov/, respectively).

Informal Meeting / Mediation
Cases often settle without going to hearing, even after the date for a State-level fair hearing has been set. You may settle at an Informal Meeting with the Regional Center. You may also request mediation. Both of these are voluntary on your part. If you are not able to resolve the case at an Informal Meeting or Mediation, you still have the right to go to a Fair Hearing. Preparing For Hearing

The hearing is conducted by an Administrative Law Judge (ALJ). The ALJ is an impartial person who is not an employee of the Regional Center or the Department of Developmental Services.

Although most families represent themselves in the hearing process, you may choose to be represented by an advocate from Protection and Advocacy, Inc., by someone from the Area Board, by a lay advocate or by an attorney at your own expense. The Regional Center (or your Service Agency) can give you information about advocacy assistance. You and your representative have the right to look at the service agency’s file relating to your case prior to the hearing.

Hearing Dates/Locations
The fair hearing will be held within 45 days of the date your hearing request form was postmarked or received by the Regional Center, whichever is earlier. At least one full day will be scheduled for the hearing at a time and place reasonably convenient to you and your authorized representative. Hearings are usually held at the Regional Center. If that location is not convenient for you, you and the Regional Center may agree on a different location.

Accessibility of the Hearing Location
Hearing locations must be accessible to persons with disabilities. You should check with OAH in advance to assure accessibility. If persons you expect to attend the hearing have special needs that require reasonable accommodation, please contact OAH as soon as possible so arrangements can be made.

Continuances
Either you or the Regional Center may ask for the hearing date to be changed. This is called a continuance of the hearing. If you need to continue the hearing date, you must contact OAH as soon as you know of the problem. The sooner you make your request, the more likely it will be granted.

Continuance requests should be in writing and a copy should be sent to the other party. You must show good cause to continue the hearing date. You may fax or mail the continuance request to OAH. If there is not enough time to send a written request, you may telephone OAH. In asking for a continuance of the hearing you may have to agree to waive the statutory timelines contained in Welfare and Institutions Code sections 4712 and 4712.5. These timelines include, but are not limited to, the time for scheduling the hearing in the case and the time for rendering a final or proposed decision by the ALJ. OAH will decide whether or not to grant a continuance.

Witnesses
You may call witnesses to testify. You may ask the witness to come to the hearing voluntarily or you may subpoena records or people to require them to come to the hearing. Contact OAH well before the hearing date to get the subpoena forms. Certain witnesses, such as expert witnesses like doctors, may demand a fee for their time at the hearing. These fees are paid by the party calling the witness. Each witness should have special or direct knowledge about the matters they will discuss at the hearing. Prepare a list of questions to ask each witness to help you present the background information on the issue and to help focus on the witness’ knowledge and opinions. Although letters or written statements may be presented to the ALJ, it is generally better to bring witnesses who can help present your information and answer any questions. The ALJ will not speak to witnesses except at the hearing. If you present written reports or evaluations without the author present to testify, be prepared to explain to the ALJ why the documents are relevant and support your position.

Interpreters
If you or a witness needs a sign or language interpreter, immediately contact the Regional Center advocate or OAH so that a certified interpreter can be provided at no cost to you.

Prehearing Conference
You and the Regional Center may participate in a telephone prehearing conference with an ALJ if either you or the Regional Center feel it is necessary to define or clarify the issues for hearing, to change hearing dates or to discuss any matter that affects the efficient and convenient conduct of the hearing. A request for a prehearing conference can be made in writing or by telephone call to the appropriate regional OAH office.

Exchanging Documents
At least 5 days before the hearing, you and the Regional Center must exchange copies of any documents and reports that you each intend to use at the hearing. You must also exchange a list of witnesses you intend to call and what you expect them to talk about. At the hearing, the ALJ can decide whether to allow a witness who was not on the list or a document that was not given to the other party before the hearing.

Before the hearing, make copies of the documents you want to present to the ALJ. You should bring to the hearing the original document, if it is available, and two copies.

The Hearing
At the beginning of the hearing the ALJ will explain how the hearing will proceed. Feel free to ask any questions about what you are expected to do. The entire hearing will be recorded by audio tape recorder.

Each party may give a short opening statement to tell the ALJ what the claimant wants and what the issues are in the case. After opening statements, both you and the regional center will present your evidence. For example, if you are requesting a service, you must show the ALJ, by testimony or other evidence, why you are eligible for that service.

After the testimony and other evidence have been submitted to the ALJ, each party may make a closing argument but it is not required. If you make a closing argument, you should summarize the case and discuss what the evidence has shown.

Evidence
Evidence is information that a party presents to the ALJ to explain and prove his or her case. Evidence can be in the form of documents, reports, or witness testimony under oath. The evidence must be relevant to the matters in dispute. This means it must tend to prove or disprove an important fact. You should be prepared to explain to the ALJ why the evidence is important to your case. Although the formal rules of evidence used in court will not be applied in these hearings, the ALJ may need to decide or make rulings on the reliability or believability of the evidence. If the evidence is not relevant to an issue in the case or is not trustworthy, the ALJ may decide that the evidence cannot be used.

The Decision
A written decision will be mailed to you, usually within 10 days of the date the hearing is concluded. Any decision that is not in your favor will be effective 10 days after you and your authorized representative receive the decision by certified mail. If you or your authorized representative cannot understand English, the written decision will be provided in English and in the language you or your authorized representative understands.

The impartial mediation conference and/or due process hearing will be completed within 30 days from the receipt of the request by OAH. The timely issuance of the written decision may not be delayed by any voluntary local efforts happening at the same time to resolve the matter. The decision will be final unless appealed to the superior court of appropriate jurisdiction.

While all parties are encouraged to resolve differences at the lowest administrative level possible, such voluntary resolution may occur at the same time that a request for Mediation Conference/Due Process Hearing and/or a Compliance Complaint is filed.

 

Helpful Links

Parents’ Rights: An Early Start Guide for Families

http://www.dds.ca.gov/EarlyStart/ResourceMaterials.cfm#parents

Fair Hearing Process Brochure

http://www.dds.ca.gov/complaints/docs/English_FairHearingBrochure.pdf