Changes to special education processes announced by the Office of Administrative Hearings

Announced on April 15, 2020, and effective on the same date, the Office of Administrative Hearings will be conducting all mediations, prehearing conferences and due process hearings remotely, either through video conference or by telephone. All special education hearing rooms at OAH locations are closed to the public, and no hearings or mediations at off-site locations will take place. The link to the OAH order can be found at https://bit.ly/3bwIxc1.

OAH is a neutral state agency that helps solve disagreements between individuals and government agencies. The Special Education Division of OAH handles mediations, prehearing conferences and due process hearings that involve issues related to special education under the Individuals with Disabilities Education Act.

Special education mediations

In the special education due process context, mediation is a chance for the parties to resolve their dispute with the help of a neutral, trained mediator. All discussions that occur during mediation, including any statements each party makes about their case, are confidential and may not be used in any subsequent hearing. The purpose of the confidentiality rule is to allow free and open dialogue to encourage the parties to reach settlement. However, due process mediation will only occur on a voluntary basis — both parties must request and consent to participate in mediation.

For parties that request or have already requested mediation, the mediation will now be conducted either through video conference or by telephone. In addition, OAH has imposed a new requirement on the party who has filed the due process complaint to provide to the mediator a detailed, opening settlement proposal. OAH has specified that the settlement proposal should contain each element of the filing party’s proposed settlement, including the cost of compensatory education requested, proposed service vendors or placement locations, and any other details necessary to start a meaningful settlement discussion. The filing party may include questions, if the answers are needed before a proposal can be formulated. The assigned mediator will not share the settlement proposal with the party defending the due process hearing before discussing it with the filing party first. The settlement proposal, including any questions posed, will be provided to the mediator orally and is not filed with OAH.

Special education prehearing conferences and due process hearings

OAH previously had the authority to conduct due process hearings by videoconference or telephone pursuant to Title 5 of the California Code of Regulations, § 3082, subdivision (g). However, in light of the statewide stay-at-home orders due to COVID-19, OAH issued an order dictating that all special education prehearing conferences and due process hearings scheduled with OAH will now occur by videoconference using the Microsoft Teams application, effective on April 15, 2020, until otherwise ordered. Two days before the prehearing conference, parties are required to file with OAH a Participant Information for Prehearing Conference and Video Due Process Hearing Form, which can be found on the OAH website and in the Resources section of www.csba.org/coronavirus. The form will provide OAH with the contact and technology information for the attorneys, parties and anticipated due process hearing witnesses. The form also requires the parties and counsel to confirm that they meet the “minimum videoconferencing requirements.” The term “minimum videoconferencing requirements” is not defined by OAH but this may be a reference to the requirement in Title 5 CCR § 3082, subd. (g), that “each participant in the hearing has an opportunity to participate in and to hear the entire proceeding while it is taking place and to observe exhibits.”

OAH will send an email invitation to the parties or their attorneys to join the prehearing conference. Parties are expected to join the prehearing conference by computer and appear by videoconference using a webcam unless they do not have the required computer equipment. In that situation, at the discretion of the assigned Administrative Law Judge, parties may be permitted to appear by using Teams for audio only or by telephone.

All motions and filings related to prehearing conferences and due process hearings must be submitted through OAH’s online Secure e-file system or sent by U.S. mail or overnight carrier. Special arrangements may be made for in-person drop off at OAH offices by calling 916-263-0880. For more information, visit OAH’s website, Special Education Division.