In this short reference guide, we’ll break down the appeal process for Regional Center consumers ages three years and older. This process is governed by the Lanterman Developmental Disabilities Services Act, known more informally as the Lanterman Act. The early intervention program (age 0–3) has a similar appeal process, but it is governed by a different set of laws and therefore operates on different time tables and slightly changed procedures. You can access a complete list of Regional Center timelines here for both ages 0–3 and 3 and over.


Types of disagreements with the Regional Center

There are several scenarios in which you might disagree with the Regional Center:

1) You disagree with the Regional Center as to whether or not your child is eligible to become or remain a client under the Lanterman Act;

2) You request a new service or a change to an existing service and are denied;

3) The Regional Center wants to terminate or reduce existing services.

Regardless of the type of disagreement, you should receive a written Notice of Action (NOA) from the Regional Center. The NOA must explain what the Regional Center plans to do, why they’re doing it, when it will take effect, and the specific law or policy that supports their proposed action.

  • When the Regional Center wants to terminate or reduce existing services, you should appeal in writing within 10 days of receiving the NOA and request “aid paid pending appeal,” which is the technical term for the continuation of existing services during the due process proceedings.1

Troubleshooting tip: When a service coordinator tells you that what you are requesting isn’t available, you can ask for a copy of the law or policy that supports their answer and/or ask for a written denial so that you may appeal. If the service coordinator refuses to provide you with a written denial upon request, you can still file for a hearing, and write on the form that the Regional Center refused to provide you with a written denial.2

 

Filing the Request for Fair Hearing

The Notice of Action from the Regional Center must include information about how to appeal their decision and where to send the Request for Fair Hearing form. Usually they will send a copy of the form, but if not, you can find it here.

At the top of the form, there will be a space to indicate that in addition to a fair hearing, you are also requesting opportunities to resolve the conflict prior to hearing. Typically it is a good idea to check both the “informal meeting” and “mediation” boxes, to avail yourself of all possible options for resolving the conflict in your child’s favor without having to appear before an administrative law judge.

When you fill out the hearing request form, you do not have to make arguments or a statement of position. In the section entitled “Reason(s) for requesting a fair hearing,” it is sufficient to write that you requested a service and the Regional Center denied it, or that the Regional Center informed you that a specific service was being cut or terminated. In the section entitled “Describe what is needed to resolve your complaint,” it is sufficient to write that the Regional Center should provide or not cut/reduce the service. You will have a chance to make arguments later on in the process. The appeal request can be simple and straightforward.

You should be able to send the appeal request form to your Regional Center service coordinator. You can also send it directly to the Office of Administrative Hearings at 2349 Gateway Oaks Drive, Suite 200, Sacramento, CA 95833, or fax it to (916) 376-6318, but if you do that, be sure to also send a copy to the Regional Center. During the pandemic, we recommend that all paperwork be sent electronically, since employees at Regional Centers and many state offices are working remotely. For more on changes to the appeal process during the pandemic, see below.

  • The informal meeting, mediation, and hearing must take place 10, 30, and 50 days, respectively, after your request is received. You should receive a written notice of confirmation that your hearing request was received. Soon after, you should also receive written notice of scheduled proceedings, although the informal meeting may be scheduled by phone call.

You should receive a written notice of confirmation that your hearing request was received. Soon after, you should also receive written notice of scheduled proceedings, although the informal meeting may be scheduled by phone call.


Notes on Requesting a Hearing During the Pandemic Shutdowns

OCRA director Katie Hornberger confirmed during our Regional Center and IHSS webinar that the Office of Administrative Hearings (OAH) has continued all scheduled hearings. A “continuance” is legal terminology meaning that the hearing has been postponed to a later date. However, if you feel that you have a critical need that cannot wait until hearings are put back on the calendar, you can request a telephonic hearing and/or mediation.

Katie suggested during the webinar that if you’re in the middle of an ongoing appeal and you already have aid paid pending appeal, you might want to just wait until OAH reschedules your hearing, since waiting will not create a disruption in your child’s services. However, if you’ve requested a service and the Regional Center denied it, you can ask that the due process proceedings carry on via telephonic meeting if you feel that the services are critical to meet your child’s needs during the pandemic. You can write a short letter to OAH explaining why you feel the hearing addresses a critical need. Be sure to send a copy of the letter to your service coordinator.

The Informal Meeting

The first step the Regional Center will take in trying to resolve your dispute is to offer an informal meeting where you have a chance to make your case with a Regional Center representative. You can ask someone to help you prepare, bring an advocate to support you, or prepare and attend by yourself if you feel comfortable doing so.

  • The informal meeting takes place within 10 days of OAH’s receipt of your hearing request form.

Under ordinary circumstances, the Regional Center may offer an in-person or telephone meeting; many folks prefer to do this meeting over the phone. During the COVID-19 shelter-in-place order, of course, it is now required that informal meetings take place telephonically and not in person.

During the informal meeting, you will have a chance to make your arguments as to why you feel a service is necessary, or otherwise dispute the Regional Center’s proposed action. If you have documentation to submit, you should be able to provide this to the Regional Center representative ahead of time.

  • After the informal meeting, the Regional Center representative has 5 working days to provide you with a written decision.

This notice should include a list of the issues discussed at the meeting; the Regional Center’s decision on each issue; the facts, laws, and regulations supporting  each decision; and instructions on how to appeal. If you agree with the decision, you can submit a “Notification of Resolution” form to the Regional Center to withdraw your request for a hearing. This form will likely be included with the written decision, but if not, you can find it here. If you disagree with the informal meeting decision, you can continue on to mediation and/or a hearing.

Troubleshooting Tip: The informal meeting can be a good opportunity to gain a deeper understanding of the Regional Center’s position, and figure out what you might be able to do on your end in order to resolve the dispute. For example, if you asked for a service and the Regional Center says a generic community resource is available, you might learn from the informal meeting that it would help to provide a letter from the community resource stating that they are not equipped to serve your child, or otherwise demonstrate that the purported generic resource will not help your child meet IPP goals. Such documentation might be sufficient to resolve the conflict.


Mediation

Depending on your Regional Center, you may also be offered the opportunity to attend a mediation, at which a representative from the Office of Administrative Hearings will be present, but in a mediator role instead of an adjudicative role. The mediator’s job will be to help you and the Regional Center reach a mutually agreeable resolution.

  • As before, if you do not agree with the proposed outcome at mediation, you can opt to go on to a fair hearing. The hearing must take place within 50 days after you filed your hearing request. Not every Regional Center participates in mediations. If the Regional Center opts out of mediation, then you go straight from the informal meeting to a fair hearing.


The Fair Hearing

Below, you will find a basic outline of what to expect before, during, and after the hearing, along with some important terminology you should know. For a thorough and detailed guide to preparing for a Regional Center fair hearing, you may want to review Disability Rights CA’s Regional Center Fair Hearing Packet.

Preparing for the Hearing

  • Scheduling: You should receive written notice of a hearing date and time soon after filing the request for a hearing. If you are unavailable during the scheduled mediation or hearing time, you should let OAH and the Regional Center know immediately, in writing, that you’d like to request a different date, and provide a window of availability if you are able. If you later realize you need to request a postponement (also called a continuance) of the hearing, you should also contact OAH and the Regional Center in writing, and OAH will determine whether you have good cause to reschedule. 
     
  • Accessibility and translation: If a person with disabilities needs reasonable accommodations in order to attend the hearing, OAH should be notified ASAP, always in writing, to give them time to make the accommodations. Additionally, informal meetings, mediations, and fair hearings are conducted in English, so you should notify OAH immediately if you anticipate that you will need a translator or an ASL interpreter.
     
  • Legal argument: As Disability Rights CA explains, “Your legal argument is the law you are relying on to show you qualify for the service you and the Regional Center disagree about, and the facts that support your claim.” To prepare your legal argument, you should review the law supporting your position, and search and read previous OAH hearing decisions. The link in the DRC publication is no longer functional, as DDS has redesigned its website. You can now find previous OAH decisions from DDS here.
     
  • Documentation: You should gather any written documentation that supports your claim, including but not limited to assessments and reports, progress reports, declarations (sworn statements of fact that are signed under oath), and school records. You also have the right to review your Regional Center file within three working days after requesting them. Disability Rights CA recommends that you submit anything from your Regional Center file that you believe is helpful to your case. Don’t assume the Regional Center will submit it to the judge just because it’s in your file.
     
  • Witnesses: You can have people submit letters or declarations in support of your position and/or testify at the hearing. Disability Rights CA suggests in their Regional Center hearing packet that a judge might give more weight to testimony that is given in person in the hearing.
     
  • Evidence exchange: At least 5 days prior to the hearing, you and the Regional Center must exchange a list of witnesses and the subject of their testimony, and copies of all documents you will submit as evidence. Anything not exchanged in advance may be barred from introduction at the hearing.

During the Hearing

  • What it looks like: The hearing will often take place at the Regional Center, except during the pandemic closures, during which time hearings may take place telephonically or by video conference. The hearing will be presided over by an administrative law judge, or ALJ. Although this is a formal hearing before a judge, and it will result in a legally binding written decision, the hearing may look more like a work meeting than the “court” setting you might imagine. You might find yourself just sitting around a conference room table with the ALJ and the Regional Center’s representative. The ALJ will audio-record the hearing for their reference, and may ask you questions throughout the hearing. ALJs know that parents are not lawyers, and hearings are generally not bound by the strict rules of evidence that apply in court. The process is intended to be accessible to families who are representing themselves. That being said, this is a real judge, so be sure to carry yourself accordingly.
     
  • Opening statement: You will be invited to give an opening statement after the Regional Center gives theirs. In your opening statement, you should tell the ALJ a little bit about your child, tell them the service you’re requesting and why your child needs it, and explain the law that supports your decision.3
     
  • Questioning witnesses: If your hearing has witnesses, the Regional Center’s witnesses will testify first. You will have the opportunity to ask questions of the Regional Center’s witnesses. Then your witnesses will testify. You should prepare questions ahead of time, both for your own witnesses and the Regional Center’s witnesses. Review DRC’s fair hearing packet for tips on direct- and cross-examination of witnesses.
     
  • Closing statement: You can offer a closing statement at the end of the hearing, or you and the Regional Center can agree to submit written closing statements. If you feel there is additional documentary evidence that needs to be submitted and considered, you can ask for the record to be kept open. The ALJ can agree or disagree to this request.


After the Hearing

  • Decision: After the hearing, the ALJ has 10 days to write a decision. The hearing decision must be issued no more than 80 days after you initially requested the appeal, although timelines may be extended if you requested a postponement for good cause.
  • Next steps: If you disagree with the ALJ’s decision, you have 90 days to file appeal documents in Superior Court. You will likely need an attorney for this process.4 If you agree with the ALJ’s decision but the Regional Center refuses to implement it, you can file a Section 4731 complaint.5
     

Helpful Links

1 Note that aid paid pending will not be available when the reason for the termination is that your child has just turned three years old.

2 Disability Rights CA, “Rights Under the Lanterman Act,” p. 12–10

3 See https://www.disabilityrightsca.org/system/files/file-attachments/548401.pdf

4 See https://www.disabilityrightsca.org/system/files?file=file-attachments/506301Ch12.pdf, Questions 36–39

5 See https://www.disabilityrightsca.org/system/files?file=file-attachments/506301Ch12.pdf, Question 41

 

Lisa Concoff Kronbeck
Public Benefits Specialist

Other news