Section 28.08 - Continuum of Options for Dispute Resolution(1)Local School District Procedures. School districts are encouraged to develop local problem resolution procedures that allow parents to present a concern to a district representative and receive a response related to the concern. Local procedures shall not be used to delay or deny a parent's right to access other dispute resolution mechanisms.(2)Department Procedures. The Department maintains a Problem Resolution System that provides for the investigation of complaints and the enforcement of compliance with 603 CMR 28.00, as well as with other statutes and regulations relating to the provision of publicly funded education. The Department can make findings on procedural issues and issues related to implementation of requirements. Any party wishing to file a complaint may do so through the Department. Use of the Department Problem Resolution procedures shall not prevent a party from requesting alternative administrative remedies of mediation or hearing on any matter, at any time. Copies of the Problem Resolution System Guidelines and Procedures are available from the Department upon request. Findings and orders issued by the Department on complaints and the Department's processing of a complaint are not reviewable by the Bureau of Special Education Appeals. Additionally, the pendency of a complaint before the Department does not make the Department a necessary party to actions on related issues pending before the Bureau of Special Education Appeals.(3)Bureau of Special Education Appeals: Jurisdiction. In order to provide for the resolution of differences of opinion among school districts, private schools, parents, and state agencies, the Bureau of Special Education Appeals, pursuant to M.G.L. c. 71B, § 2A, shall conduct mediations and hearings to resolve such disputes. The jurisdiction of the Bureau of Special Education Appeals over state agencies, however, shall be exercised consistent with 34 CFR § 300.142(a). The hearing officer may determine, in accordance with the rules, regulations and policies of the respective agencies, that services shall be provided by the Department of Children and Families, the Department of Developmental Disabilities, The Department of Mental Health, the Department of Public Health, or any other state agency or program, in addition to the IEP services to be provided by the school district. Mediations and hearings shall be conducted by impartial mediators and hearing officers who do not have personal or professional interests that would conflict with their objectivity in the hearing or mediation and who are employed to conduct those proceedings. (a) A parent or a school district, except as provided in 603 CMR 28.08(3)(c) and (d), may request mediation and/or a hearing at any time on any matter concerning the eligibility, evaluation, placement, IEP, provision of special education in accordance with state and federal law, or procedural protections of state and federal law for students with disabilities. A parent of a student with a disability may also request a hearing on any issue involving the denial of the free appropriate public education guaranteed by Section 504 of the Rehabilitation Act of 1973, as set forth in 34 CFR §§ 104.31 through 104.39.(b) No later than five days after receipt of a request for hearing or notice that an IEP, or proposed placement, or finding of no eligibility for special education has been rejected by the parent, the school district shall send a copy of such request or notice to the Bureau of Special Education Appeals. The Bureau of Special Education Appeals shall then give notice in writing to the parties of the rights of the parents and school district to request mediation and a hearing.(c) A school district may not request a hearing on a parent's failure or refusal to consent to initial evaluation or initial placement of a student in a special education program, or on a parent's decision to revoke consent to the continued provision of all special education and related services to his or her child under 603 CMR 28.07(1)(a)4.(d) A school district may request a hearing to appeal the Department's assignment of school district responsibility under 603 CMR 28.10 according to the procedures in 603 CMR 28.10(9).(4)Mediation. A voluntary dispute resolution procedure, called mediation, shall be provided by mediators employed by the Bureau of Special Education Appeals and may be used by parents and school districts to seek resolution of their dispute. Mediations shall be provided at no cost to the parties. No parent shall be required to participate in mediation. (a) Within 30 days of receipt of a request for mediation, the mediator shall schedule a mediation session at a time and place convenient to the parties. The mediation shall include the parents, any representative of the parents' choosing, and a representative(s) of the school district, with one representative who is authorized to resolve the dispute on behalf of the school district. When the parties reach agreement, it shall be set forth in written form. Concurrent with a request for mediation or if no agreement is reached, the parents or school district may request a hearing.(b) All discussions that occur during mediation are confidential and may not be used as evidence in a hearing. Parents and school districts may request a hearing without participating in mediation.(5)Hearings. Five days after receipt of a written request for hearing, the Bureau of Special Education Appeals shall notify the parties in writing of the name of the assigned hearing officer and, as appropriate, shall provide either a date for the hearing or a statement of federally required procedures to be followed before a hearing date can be assigned. (a) The Bureau of Special Education Appeals shall issue Rules that state the parties' rights and obligations as to the hearing process, which shall be consistent with all state and federal laws. Such Rules shall be available to the public on request.(b) Except as provided otherwise under federal law or in the administrative rules adopted by the Bureau of Special Education Appeals, hearings shall be conducted consistent with the formal Rules of Administrative Procedures contained in 801 CMR 1.00.(c) The Special Education Appeals hearing officer shall have the power and the duty to conduct a fair hearing; to ensure that the rights of all parties are protected; to define issues; to receive and consider all relevant and reliable evidence; to ensure an orderly presentation of the evidence and issues; to order additional evaluations by the school district or independent education evaluations at public expense when necessary in order to determine the appropriate special education for the student; to reconvene the hearing at any time prior to the issuance of a decision; to take such other steps as are appropriate to assure the orderly presentation of evidence and protection of the parties' rights at the hearing; to ensure a record is made of the proceedings; and to reach a fair, independent, and impartial decision based on the issues and evidence presented at the hearing and in accordance with applicable law.(6)Hearing Decision. The decision of the hearing officer of the Bureau of Special Education Appeals shall be implemented immediately and shall not be subject to reconsideration by the Bureau of Special Education Appeals or the Department, but may be appealed to a court of competent jurisdiction. (a) The written findings of fact and decision of the hearing officer along with notification of the procedures to be followed with respect to appeal and enforcement of the decision shall be sent to the parties and their representatives.(b) A party contending that a Bureau of Special Education Appeals decision is not being implemented may file a motion with the Bureau of Special Education Appeals contending that the decision is not being implemented and setting out the areas of non-compliance. The hearing officer may convene a hearing at which the scope of the inquiry shall be limited to the facts on the issue of compliance, facts of such a nature as to excuse performance, and facts bearing on a remedy. Upon a finding of non-compliance, the hearing officer may fashion appropriate relief, including referral of the matter to the Legal Office of the Department or other office for appropriate enforcement action. The possibility of enforcement action does not make the Department a necessary party in matters pending before the Bureau of Special Education Appeals.(7)Student's Right to IEP Services and Placement. In accordance with state and federal law, during the pendency of any dispute regarding placement or services, the eligible student shall remain in his or her then current education program and placement unless the parents and the school district agree otherwise. (a) If the parents are seeking initial placement in the public school, and the child is at least five years old, however, the child shall be placed in the public school program.(b) For children three and four years of age, rights to services from the public school district are limited to children who have been found eligible for special education and have an IEP and placement proposed by the public school district and accepted by the parent.(c) A hearing officer may order a temporary change in placement of an eligible student for reasons consistent with federal law, including but not limited to when maintaining such student in the current placement is substantially likely to result in injury to the student or others.(d) Except as provided in 603 CMR 28.08(7)(a) through (c), any party seeking to change the eligible student's placement during the pendency of proceedings before the Bureau of Special Education Appeals or in subsequent judicial proceedings shall seek a preliminary injunction from a state or federal court of competent jurisdiction, ordering such a change in placement.