C.M.R. 05, 071, ch. 101, app 071-101-1
In the Individuals with Disabilities Improvement Act of 2004 (the reauthorization of the IDEA, 2004), the Congress required the U.S. Department of Education to publish and widely disseminate 'model forms', that are "consistent with the requirements of [Part B of the IDEA]" and "sufficient to meet the requirements." This notice of procedural safeguards has been provided to the states.
NOTE: Italicized text signifies State requirements. Non-italicized Time Roman text signifies federal statutory or regulatory requirements
Opportunity to examine records; parent participation in meetings.
34 CFR § 300.501
(a) Opportunity to examine records. The parents of a child with a disability must be afforded, in accordance with the procedures of §§ 300.613 through 300.621, an opportunity to inspect and review all education records with respect to-
(1) The identification, evaluation, and educational placement of the child; and
(2) The provision of FAPE to the child.
(b) Parent participation in meetings.
(1) The parents of a child with a disability must be afforded an opportunity to participate in meetings with respect to-
(i) The identification, evaluation, and educational placement of the child; and
(ii) The provision of FAPE to the child.
(2) Each public agency must provide notice consistent with §300.322(a)(1) and (b)(1) to ensure that parents of children with disabilities have the opportunity to participate in meetings described in paragraph (b)(1) of this section.
(3) A meeting does not include informal or unscheduled conversations involving public agency personnel and conversations on issues such as teaching methodology, lesson plans, or coordination of service provision. A meeting also does not include preparatory activities that public agency personnel engage in to develop a proposal or response to a parent proposal that will be discussed at a later meeting.
(c) Parent involvement in placement decisions.
(1) Each public agency must ensure that a parent of each child with a disability is a member of any group that makes decisions on the educational placement of the parent's child.
(2) In implementing the requirements of paragraph (c)(1) of this section, the public agency must use procedures consistent with the procedures described in §300.322(a) through (b)(1).
(3) If neither parent can participate in a meeting in which a decision is to be made relating to the educational placement of their child, the public agency must use other methods to ensure their participation, including individual or conference telephone calls, or video conferencing.
(4) A placement decision may be made by a group without the involvement of a parent, if the public agency is unable to obtain the parent's participation in the decision. In this case, the public agency must have a record of its attempt to ensure their involvement.
Communication of Procedural Safeguards
34 CFR § 300.504
(a) A copy of the procedural safeguards available to the parents of a child with a disability or an adult student with a disability must be given to the parents or the adult student only one time a school year, except that a copy also must be given to the parents -
(1) Upon initial referral or parent request for evaluation;
(2) Upon receipt of the first State complaint and upon receipt of the first due process hearing request;
(3) In accordance with discipline procedures (seeProcedures When Disciplining a Child with Disabilities,below); and
(4) Upon request by a parent or adult student.
(b) Internet Web site. The School Administrative Unit (SAU) may place a current copy of the procedural safeguards notice on its Internet Web site if a web site exists.
Sources the parent may contact for assistance in understanding the parent's rights include the Due Process Office of the Maine Department of Education (207-624-6650), Maine Parent Federation (1-800-870-7746), the Disability Rights Center (1-800-452-1948) and Southern Maine Parent Awareness (1-800-564-9696), and KIDS LEGAL (1-866-624-7787).
A parent may file a dispute resolution request with the Maine Department of Education if the parent believes the school administrative unit (SAU) has violated a requirement under the Maine Special Education Regulations. (See Dispute Resolution Section below.)
Parental Participation
As the parent of a child who has or may have a disability, you are entitled to participate in meetings regarding your child's eligibility determination, initial evaluation or reevaluation, educational placement or the provision of early intervention services for your child age birth through 22 years or the provision of a free appropriate public education for your child age 3 and under 22 years of age. If you are an adult student, you have the right to participate in meetings regarding your eligibility determination, initial evaluation or reevaluation, educational placement or the provision of a free appropriate public education.
WRITTEN NOTICE
34 CFR § 300.503
Notice
Your school administrative unit (SAU) must give you written notice (provide you certain information in writing), at least 7 days prior to the date the school administrative unit:
1. Proposes to initiate or to change the identification, evaluation, or educational placement of your child, or the provision of early intervention services for your child age birth to 2 years, or a free appropriate public education (FAPE) to your child age 3 and under 22 years of age;or
2. Refuses to initiate or to change the identification, evaluation, or educational placement of your child, or the provision of early intervention services for your child age birth through 2 years, or a FAPE to your child age 3 and under 22 years of age.
Content of notice
The written notice must:
1. Describe the action regarding the referral, evaluation, identification, programming or placement that your SAU proposes or refuses to take;
2. Explain why your SAU is proposing or refusing to take the action;
3. Describe each evaluation procedure, assessment, record, or report your SAU used in deciding to propose or refuse the action;
4. Include a statement that you have protections under the procedural safeguards provisions in Part B of the IDEA;
5. Tell you how you can obtain a description of the procedural safeguards if the action that your SAU is proposing or refusing is not an initial referral for evaluation;
6. Include resources for you to contact for help in understanding your rights under Part B of the IDEA, such as and the Due Process Office of the Maine Department of Education (207-624-6644), the Maine Parent Federation (1-800-870-7746), and Southern Maine Parent Awareness (1-800-564-9696)
7. Describe any other choices that your child's individualized education program (IEP) Team, which includes the parent, considered and the reasons why those choices were rejected;
8. Provide a description of other reasons why your SAU proposed or refused the action.
9. Include a summary of comments made by the parents, including the parents' description of their child's progress; and
10. Names and titles of each member.
Notice in understandable language
The notice must be:
1. Written in language understandable to the general public; and
2. Provided in your native language or other mode of communication you use, unless it is clearly not feasible to do so.
If your native language or other mode of communication is not a written language, your SAU must ensure that:
1. The notice is translated for you orally by other means in your native language or other mode of communication;
2. You understand the content of the notice; and
3. There is written evidence that 1 and 2 have been met.
Native Language
34 CFR § 300.29
Native language, when used with an individual who has limited English proficiency, means the following, including the translation of the procedural safeguards:
1. The language normally used by that person, or, in the case of a child, the language normally used by the child's parents;
2. In all direct contact with a child (including evaluation of the child), the language normally used by the child in the home or learning environment.
For a person with deafness or blindness, or for a person with no written language, the mode of communication is what the person normally uses (such as sign language, Braille, or oral communication).
Electronic Mail
34 CFR § 300.505
If your SAU offers parents the choice of receiving documents by e-mail and takes the necessary steps to ensure that there are appropriate safeguards to protect the integrity of the process, you may choose to receive the following by e-mail:
1. Written notice;
2. Procedural safeguards notice;
3. Advance written notice;
4. IEP;
5. Progress reports;and
6. Notices related to a due process hearing request.
Parental Consent - Definition
34 CFR § 300.9
Consent
Consent means:
1. You have been fully informed in your native language or other mode of communication (such as sign language, Braille, or oral communication) of all information about the action for which you are giving consent.
2. You understand and agree in writing to that action, and the consent describes that action and lists the records (if any) that will be released and to whom; and
3. You understand that the consent is voluntary on your part and you may withdraw your consent at any time.
Your withdrawal of consent does not negate (undo) an action that has occurred after you gave your consent and before you withdrew it.
If the parent revokes consent in writing for their child's receipt of special education services after the child is initially provided special education and related services, the public agency is not required to amend the child's education records to remove any references to the child's receipt of special education and related services because of the revocation of consent.
Parental Consent
34 CFR § 300.300
Consent for initial evaluation
Your SAU cannot conduct an initial evaluation of your child to determine whether your child is eligible under Part B of the IDEA to receive special education and related services without first providing you with prior written notice of the proposed action and without obtaining your written consent as described under the heading Parental Consent.
Your SAU must make reasonable efforts to obtain your informed consent for an initial evaluation to decide whether your child is a child with a disability.
Your consent for initial evaluation does not mean that you have also given your consent for the SAU to start providing special education and related services to your child. If your child is enrolled in public school or you are seeking to enroll your child in a public school and you have refused to provide consent or failed to respond to a request to provide consent for an initial evaluation, your SAU may, but is not required to, seek to conduct an initial evaluation of your child by utilizing the Act's mediation or due process hearing request, resolution meeting, and impartial due process hearing procedures (unless required to do so or prohibited from doing so under State law). Your SAU will not violate its obligations to locate, identify and evaluate your child if it does not pursue an evaluation of your child in these circumstances, unless State law requires it to pursue the evaluation.
Generally, either parent may grant consent. In the case of divorced parents with shared parental rights and responsibilities either parent may grant consent. However, in the event that one parent grants consent and the other parent refuses, the school administrative unit is obligated to initiate the action for which consent has been granted.
Special rules for initial evaluation of wards of the State
If a child is a ward of the State and is not living with his/her parent -
The SAU does not need consent from the parent for an initial evaluation to determine if the child is a child with a disability if:
1. Despite reasonable efforts to do so, the SAU cannot find the child's parent;
2. The rights of the parents have been terminated in accordance with State law; or
3. A judge has assigned the right to make educational decisions and to consent for an initial evaluation to an individual other than the parent.
Ward of the State, as used in the IDEA, means a child who, as determined by the State where the child lives, is:
1. A foster child;
2. Considered a ward of the State under State law; or
3. In the custody of a public child welfare agency.
Parental consent for services
Your SAU must obtain your informed written consent before providing special education and related services to your child for the first time.
The SAU must make reasonable efforts to obtain your informed consent before providing special education and related services to your child for the first time.
If you do not respond to a request to provide your consent for your child to receive special education and related services for the first time, or if you refuse to give such consent, your SAU may not use the procedural safeguards (i.e., mediation, State complaint, resolution meeting, or an impartial due process hearing) in order to obtain agreement or a ruling that the special education and related services (recommended by your child's IEP Team) may be provided to your child without your consent.
If you refuse to give your consent for your child to receive special education and related services for the first time, or if you do not respond to a request to provide such consent and the SAU does not provide your child with the special education and related services for which it sought your consent, your SAU:
1. Is not in violation of the requirement to provide appropriate services (for a child age birth through 2 years)or make a free appropriate public education (FAPE) available to your child (age 3 and under 22 years of age) for its failure to provide those services to your child; and
2. Is not required to have an individualized education program (IEP) meeting or develop an IEP for your child for the special education and related services for which your consent was requested.
Parental consent for reevaluations
Your SAU must obtain your informed consent before it reevaluates your child, unless your SAU can demonstrate that:
1. It took reasonable steps to obtain your consent for your child's reevaluation; and
2. You did not respond.
If you refuse to consent to your child's reevaluation, the SAU may, but is not required to, pursue your child's reevaluation by using the mediation, resolution meeting, and impartial due process hearing procedures to seek to override your refusal to consent to your child's reevaluation. As with initial evaluations, your SAU does not violate its obligations under Part B of the IDEA if it declines to pursue the reevaluation in this manner.
Documentation of reasonable efforts to obtain parental consent
Your school must maintain documentation of reasonable efforts to obtain parental consent for initial evaluations, to provide special education and related services for the first time, to reevaluation and to locate parents of wards of the State for initial evaluations. The documentation must include a record of the SAU's attempts in these areas, 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.
Other consent requirements
Your consent is not required before your SAU may:
1. Review existing data as part of your child's evaluation or a reevaluation; or
2. Give your child a test or other evaluation that is given to all children unless, before that test or evaluation, consent is required from all parents of all children.
Revisions to Parental Consent effective December 31, 2008:
§300.300 Parental consent.
1. If the parent of a child fails to respond to a request for, or refuses to consent to, the initial provision of special education and related services, the public agency-
a. May not use the procedures in subpart E of this part (including the mediation procedures under §300.506 or the due process procedures under §§300.507 through 300.516) in order to obtain agreement or a ruling that the services may be provided to the child;
b. Will not be considered to be in violation of the requirement to make FAPE available to the child because of the failure to provide the child with the special education and related services for which the parent refuses to or fails to provide consent; and
c. Is not required to convene an IEP Team meeting or develop an IEP under §§300.320 and 300.324 for the child.
2. If, at any time subsequent to the initial provision of special education and related services, the parent of a child revokes consent in writing for the continued provision of special education and related services, the public agency-
a. May not continue to provide special education and related services to the child, but must provide prior written notice in accordance with §300.503 before ceasing the provision of special education and related services;
b. May not use the procedures in subpart E of this part (including the mediation procedures under §300.506 or the due process procedures under §§300.507 through 300.516) in order to obtain agreement or a ruling that the services may be provided to the child;
c. Will not be considered to be in violation of the requirement to make FAPE available to the child because of the failure to provide the child with further special education and related services; and
d. Is not required to convene an IEP Team meeting or develop an IEP under §§300.320 and 300.324 for the child for further provision of special education and related services.
Independent Educational Evaluations
34 CFR § 300.502
General
As described below, you have the right to request an independent educational evaluation (IEE) of your child at no cost to you if you disagree with the evaluation of your child that was obtained by your SAU.
If you request an independent educational evaluation, the SAU must provide you with information about where you may obtain an independent educational evaluation and about the SAU's criteria that apply to independent educational evaluations.
Definitions
Independent educational evaluation means an evaluation conducted by a qualified examiner who is not employed by the SAU responsible for the education of your child.
Public expense means that the SAU either pays for the full cost of the evaluation or ensures that the evaluation is otherwise provided at no cost to you, consistent with the provisions of Part B of the IDEA, which allow each State to use whatever State, local, Federal and private sources of support are available in the State to meet the requirements of Part B of the Act.
Parent right to evaluation at public expense
You have the right to an independent educational evaluation of your child at public expense if you disagree with an evaluation of your child obtained by your SAU, subject to the following conditions:
1. If you request an independent educational evaluation of your child at public expense when you disagree with a school evaluation of your child, your SAU must, within 30 days, either: (a) File a due process hearing request to request a hearing to show that its evaluation of your child is appropriate; or (b) Ensure that an independent educational evaluation is provided at public expense, unless the SAU demonstrates in a hearing that the evaluation of your child that you obtained did not meet the SAU's criteria.
2. If your SAU requests a hearing and the final decision is that your SAU's evaluation of your child is appropriate, you still have the right to an independent educational evaluation, but not at public expense.
3. If you request an independent educational evaluation of your child, the SAU may ask why you object to the evaluation of your child obtained by your SAU. However, your SAU may not require an explanation and may not unreasonably delay either providing the independent educational evaluation of your child at public expense or filing a due process hearing request to request a due process hearing to defend the SAU's evaluation of your child.
You are entitled to only one independent educational evaluation of your child at public expense each time your SAU conducts an evaluation of your child with which you disagree.
Parent-initiated evaluations
If you obtain an independent educational evaluation of your child at public expense or you share with the SAU an evaluation of your child that you obtained at private expense:
1. Your SAU must consider the results of the evaluation of your child, if it meets the SAU's criteria for independent educational evaluations, in any decision made with respect to the provision of a free appropriate public education (FAPE) to your child; and
2. You or your SAU may present the evaluation as evidence at a due process hearing regarding your child.
Requests for evaluations by hearing officers
If a hearing officer requests an independent educational evaluation of your child as part of a due process hearing, the cost of the evaluation must be at public expense.
SAU criteria
If an independent educational evaluation is at public expense, the criteria under which the evaluation is obtained, including the location of the evaluation and the qualifications of the examiner, must be the same as the criteria that the SAU uses when it initiates an evaluation (to the extent those criteria are consistent with your right to an independent educational evaluation). Except for the criteria described above, a SAU may not impose conditions or timelines related to obtaining an independent educational evaluation at public expense.
Confidentiality of Information
Definitions
34 CFR § 300.611
As used under the heading Confidentiality of Information:
Destruction means physical destruction or removal of personal identifiers from information so that the information is no longer personally identifiable. Education records means the type of records covered under the definition of ''education records'' in 34 CFR Part 99 (the regulations implementing the Family Educational Rights and Privacy Act of 1974, 20 U.S.C. 1232g (FERPA)). Participating agency means any SAU, agency or institution that collects, maintains, or uses personally identifiable information, or from which information is obtained, under Part B of the IDEA.Personally Identifiable
34 CFR § 300.32
Personally identifiable means information that has:
(a) Your child's name, your name as the parent, or the name of another family member;
(b) Your child's address;
(c) A personal identifier, such as your child's social security number or student number; or
(d) A list of personal characteristics or other information that would make it possible to identify your child with reasonable certainty.
Notice to Parents
34 CFR § 300.612
The State Educational Agency must give notice that is adequate to fully inform parents about confidentiality of personally identifiable information, including:
1. A description of the extent to which the notice is given in the native languages of the various population groups in the State;
2. A description of the children on whom personally identifiable information is maintained, the types of information sought, the methods the State intends to use in gathering the information (including the sources from whom information is gathered), and the uses to be made of the information;
3. A summary of the policies and procedures that participating agencies must follow regarding storage, disclosure to third parties, retention, and destruction of personally identifiable information; and
4. A description of all of the rights of parents and children regarding this information, including the rights under the Family Educational Rights and Privacy Act (FERPA) and its implementing regulations in 34 CFR Part 99.
Before any major identification, location, or evaluation activity (also known as "child find"), the notice must be published or announced in newspapers or other media, or both, with circulation adequate to notify parents throughout the State of the activity to locate, identify, and evaluate children in need of special education and related services.
Access Rights
34 CFR § 300.613
The participating agency must permit you to inspect and review any education records relating to your child that are collected, maintained, or used by your SAU under Part B of the IDEA. The participating agency must comply with your request to inspect and review any education records on your child without unnecessary delay and before any meeting regarding an individualized education program (IEP), or any impartial due process hearing (including a resolution meeting or a hearing regarding discipline), and in no case more than 45 calendar days after you have made a request.
Your right to inspect and review education records includes:
1. Your right to a response from the participating agency to your reasonable requests for explanations and interpretations of the records;
2. Your right to request that the participating agency provide copies of the records if you cannot effectively inspect and review the records unless you receive those copies; and
3. Your right to have your representative inspect and review the records.
The participating agency may presume that you have authority to inspect and review records relating to your child unless advised that you do not have the authority under applicable State law governing such matters as guardianship, or separation and divorce.
Record of Access
34 CFR § 300.614
Each participating agency must keep a record of parties obtaining access to education records collected, maintained, or used under Part B of the IDEA (except access by parents and authorized employees of the participating agency), including the name of the party, the date access was given, and the purpose for which the party is authorized to use the records.
Records on More Than One Child
34 CFR § 300.615
If any education record includes information on more than one child, the parents of those children have the right to inspect and review only the information relating to their child or to be informed of that specific information.
List of Types and Locations of Information
34 CFR § 300.616
On request, each participating agency must provide you with a list of the types and locations of education records collected, maintained, or used by the agency.
Fees
34 CFR § 300.617
Each participating agency may charge a fee for copies of records that are made for you under Part B of the IDEA, if the fee does not effectively prevent you from exercising your right to inspect and review those records.
A participating agency may not charge a fee to search for or to retrieve information under Part B of the IDEA.
Amendment of Records at Parent's Request
34 CFR § 300.618
If you believe that information in the education records regarding your child collected, maintained, or used under Part B of the IDEA is inaccurate, misleading, or violates the privacy or other rights of your child, you may request the participating agency that maintains the information to change the information.
The participating agency must decide whether to change the information in accordance with your request within a reasonable period of time of receipt of your request.
If the participating agency refuses to change the information in accordance with your request, it must inform you of the refusal and advise you of the right to a hearing for this purpose as described under the heading below.
Opportunity for a Hearing
34 CFR § 300.619
The participating agency must, on request, provide you an opportunity for a hearing to challenge information in education records regarding your child to ensure that it is not inaccurate, misleading, or otherwise in violation of the privacy or other rights of your child.
Hearing Procedures
34 CFR § 300.621
A hearing to challenge information in education records must be conducted according to the procedures for such hearings under the Family Educational Rights and Privacy Act (FERPA).
Result of Hearing
34 CFR § 300.620
If, as a result of the hearing, the participating agency decides that the information is inaccurate, misleading or otherwise in violation of the privacy or other rights of the child, it must change the information accordingly and inform you in writing.
If, as a result of the hearing, the participating agency decides that the information is not inaccurate, misleading, or otherwise in violation of the privacy or other rights of your child, it must inform you of your right to place in the records that it maintains on your child a statement commenting on the information or providing any reasons you disagree with the decision of the participating agency.
Such an explanation placed in the records of your child must:
1. Be maintained by the participating agency as part of the records of your child as long as the record or contested portion is maintained by the participating agency; and
2. If the participating agency discloses the records of your child or the challenged portion to any party, the explanation must also be disclosed to that party.
Consent for Disclosure of Personally Identifiable Information
34 CFR § 300.622
Unless the information is contained in education records, and the disclosure is authorized without parental consent under the Family Educational Rights and Privacy Act (FERPA), your consent must be obtained before personally identifiable information is disclosed to parties other than officials of participating agencies. Except under the circumstances specified below, your consent is not required before personally identifiable information is released to officials of participating agencies for purposes of meeting a requirement of Part B of the IDEA.
Your consent, or consent of an eligible child who has reached 18 years of age (or is emancipated) under State law, must be obtained before personally identifiable information is released to officials of participating agencies providing or paying for transition services.
If your child is in, or is going to go to, a private school that is not located in the same SAU you reside in, your consent must be obtained before any personally identifiable information about your child is released between officials in the SAU where the private school is located and officials in the SAU where you reside.
Safeguards
34 CFR § 300.623
Each participating agency must protect the confidentiality of personally identifiable information at collection, storage, disclosure, and destruction stages.
One official at each participating agency must assume responsibility for ensuring the confidentiality of any personally identifiable information.
All persons collecting or using personally identifiable information must receive training or instruction regarding your State's policies and procedures regarding confidentiality under Part B of the IDEA and the Family Educational Rights and Privacy Act (FERPA).
Each participating agency must maintain, for public inspection, a current listing of the names and positions of those employees within the agency who may have access to personally identifiable information.
Destruction of Information
34 CFR § 300.624
Your SAU must inform you when personally identifiable information collected, maintained, or used is no longer needed to provide educational services to your child.
The information must be destroyed at your request. However, a permanent record of your child's name, address, and phone number, his or her grades, attendance record, classes attended, grade level completed, and year completed may be maintained without time limitation.
Dispute resolution
20-A M.R.S.A. §7202 et seq.
State Complaint Procedures
Difference between Due Process Hearing and State Complaint Procedures
The regulations for Part B of IDEA set forth separate procedures for State complaints and for due process hearings. Maine uses Part B dispute resolution processes for children served under Part C. As explained below, any individual or organization may file a State complaint alleging a violation of any Part B requirement by a SAU, the State Educational Agency, or any other public agency. Only you or a SAU may file a due process hearing request on any matter relating to a proposal or a refusal to initiate or change the identification, evaluation or educational placement of a child with a disability, or the provision of appropriate services (birth to 2 years) or a free appropriate public education (FAPE) to a child (3 and under 22 years of age.) While staff of the State Educational Agency generally must resolve a State complaint within a 60-calendar-day timeline, unless the timeline is properly extended, an impartial due process hearing officer must hear a due process hearing request (if not resolved through a resolution meeting or through mediation) and issue a written decision within 45-calendar-days after the end of the resolution period, as described in this document under the heading Resolution Process, unless the hearing officer grants a specific extension of the timeline at your request or the SAU's request. The State complaint, resolution and due process hearing procedures are described more fully below.
Adoption of State Complaint Procedures
34 CFR § 300.151
General
Each State Educational Agency must have written procedures for:
1. Resolving any complaint, including a complaint filed by an organization or individual from another State;
2. Widely disseminating the State complaint procedures to parents and other interested individuals, including parent training and information centers, protection and advocacy agencies, independent living centers, and other appropriate entities
Remedies for denial of appropriate services
In resolving a State complaint in which the State Educational Agency has found a failure to provide appropriate services, the State Educational Agency must address:
1. The failure to provide appropriate services, including corrective action appropriate to address the needs of the child; and
2. Appropriate future provision of services for all children with disabilities.
Minimum State Complaint Procedures
34 CFR § 300.152
Time limit; minimum procedures
Each State Educational Agency must include in its State complaint procedures a time limit of 60 calendar days after a complaint is filed to:
1. Carry out an independent on-site investigation, if the State Educational Agency determines that an investigation is necessary;
2. Give the complainant the opportunity to submit additional information, either orally or in writing, about the allegations in the complaint;
3. Provide the SAU or other public agency with the opportunity to respond to the complaint, including, at a minimum: (a) at the option of the agency, a proposal to resolve the complaint; and (b) an opportunity for a parent who has filed a complaint and the agency to agree voluntarily to engage in mediation;
4. Review all relevant information and make an independent determination as to whether the SAU or other public agency is violating a requirement of Part B of the IDEA; and
5. Issue a written decision to the complainant that addresses each allegation in the complaint and contains: (a) findings of fact and conclusions; and (b) the reasons for the State Educational Agency's final decision.
Time extension; final decision; implementation
The State Educational Agency's procedures described above also must:
1. Permit an extension of the 60 calendar-day time limit only if: (a) exceptional circumstances exist with respect to a particular State complaint; or (b) the parent and the SAU or other public agency involved voluntarily agree to extend the time to resolve the matter through mediation or alternative means of dispute resolution, if available in the State.
2. Include procedures for effective implementation of the State Educational Agency's final decision, if needed, including: (a) technical assistance activities; (b) negotiations; and (c) corrective actions to achieve compliance.
State complaints and due process hearings
If a written State complaint is received that is also the subject of a due process hearing as described below under the heading Filing a Due Process Hearing Request, or the State complaint contains multiple issues of which one or more are part of such a hearing, the State must set aside the State complaint, or any part of the State complaint that is being addressed in the due process hearing until the hearing is over. Any issue in the State complaint that is not a part of the due process hearing must be resolved using the time limit and procedures described above.
If an issue raised in a State complaint has previously been decided in a due process hearing involving the same parties (you and the SAU), then the due process hearing decision is binding on that issue and the State Educational Agency must inform the complainant that the decision is binding.
A complaint alleging a SAU's or other public agency's failure to implement a due process hearing decision must be resolved by the State Educational Agency.
Filing a Complaint
34 CFR § 300.153
An organization or individual may file a signed written State complaint under the procedures described above.
The State complaint must include:
1. A statement that a SAU or other public agency has violated a requirement of Part B of the IDEA or its regulations;
2. The facts on which the statement is based;
3. The signature and contact information for the complainant; and
4. If alleging violations regarding a specific child:
(a) The name of the child and address of the residence of the child;
(b) The name of the school the child is attending;
(c) In the case of a homeless child or youth, available contact information for the child, and the name of the school the child is attending;
(d) A description of the nature of the problem of the child, including facts relating to the problem; and
(e) A proposed resolution of the problem to the extent known and available to the party filing the complaint at the time the complaint is filed.
The complaint must allege a violation that occurred not more than one year prior to the date that the complaint is received as described under the heading Adoption of State Complaint Procedures,unless a longer period is reasonable because the complainant is requesting compensatory services for a violation that allegedly occurred not more than two years prior to the date that the written complaint is received by the Department of Education.
The party filing the State complaint must forward a copy of the complaint to the SAU or other public agency serving the child at the same time the party files the complaint with the State Educational Agency.
The SEA, under 34 CFR 300.537, may determine the State enforcement mechanisms for resolution session agreements and mediation agreements.
Due Process Hearing Procedures
Filing a Due Process Hearing Request
34 CFR § 300.507
General
You or the SAU may file a due process hearing request on any matter relating to a proposal or a refusal to initiate or change the identification, evaluation or educational placement of your child, or the provision of appropriate services for your child age birth through 2 years or a free appropriate public education (FAPE) to your child age 3 and under 22 years of age.
The due process hearing request must allege a violation that happened not more than two years before you or the SAU knew or should have known about the alleged action that forms the basis of the due process hearing request.
The above timeline does not apply to you if you could not file a due process hearing request within the timeline because:
1. The SAU specifically misrepresented that it had resolved the issues identified in the hearing request;or
2. The SAU withheld information from you that it was required to provide you under Part B of the IDEA.
Information for parents
The SAU must inform you of any free or low-cost legal and other relevant services available in the area if you request the information, or if you or the SAU file a due process hearing request.
Due Process Hearing Request
34 CFR § 300.508
General
In order to request a hearing, you or the SAU (or your attorney or the SAU's attorney) must submit a due process hearing request to the other party. That hearing request must contain all of the content listed below and must be kept confidential.
You or the SAU, whichever one filed the hearing request, must also provide the State Educational Agency with a copy of the hearing request. A hearing request will be considered received, and the regulatory timelines applicable to a hearing in effect, once the State Educational Agency has received its copy of a request containing the required information and has received written confirmation that the opposing party has also received the request.
Content of thehearing request
The due process hearing request must include:
1. The name of the child;
2. The address of the child's residence;
3. The name of the child's school;
4. If the child is a homeless child or youth, the child's contact information and the name of the child's school;
5. A description of the nature of the problem of the child relating to the proposed or refused action, including facts relating to the problem; and
6. A proposed resolution of the problem to the extent known and available to you or the SAU at the time.
Notice required before a hearing on a due process hearing request
You or the SAU may not have a due process hearing until you or the SAU (or your attorney or the SAU's attorney), files a due process hearing request that includes the information listed above.
Sufficiency of hearing request
In order for a due process hearing request to go forward, it must be considered sufficient. The due process hearing request will be considered sufficient (to have met the content requirements above) unless the party receiving the due process hearing request (you or the SAU) notifies the hearing officer and the other party in writing, within 15 calendar days of receiving the hearing request, that the receiving party believes that the due process hearing request does not meet the requirements listed above.
Within five calendar days of receiving the notification the receiving party (you or the SAU) considers a due process hearing request insufficient, the hearing officer must decide if the due process hearing request meets the requirements listed above, and notify you and the SAU in writing immediately.
Hearing request amendment
You or the SAU may make changes to the hearing request only if:
1. The other party approves of the changes in writing and is given the chance to resolve the due process hearing request through a resolution meeting, described below; or
2. By no later than five days before the due process hearing begins, the hearing officer grants permission for the changes.
If the complaining party (you or the SAU) makes changes to the due process hearing request, the timelines for the resolution meeting (within 15 calendar days of receiving the hearing request) and the time period for resolution (within 30 calendar days of receiving the request) start again on the date the amended hearing request is filed.
Local educational agency (LEA) or SAU response to a due process hearing request
If the SAU has not sent a prior written notice to you, as described under the heading Prior Written Notice, regarding the subject matter contained in your due process hearing request, the SAU must, within 10 calendar days of receiving the due process hearing request, send to you a response that includes:
1. An explanation of why the SAU proposed or refused to take the action raised in the due process hearing request;
2. A description of other options that your child's individualized education program (IEP) Team considered and the reasons why those options were rejected;
3. A description of each evaluation procedure, assessment, record, or report the SAU used as the basis for the proposed or refused action; and
4. A description of the other factors that are relevant to the SAU's proposed or refused action.
Providing the information in items 1-4 above does not prevent the SAU from asserting that your due process hearing request was insufficient.
Other party response to a due process hearing request
Except as stated under the sub-heading immediately above, Local educational agency (LEA) or SAU response to a due process hearing request, the party receiving a due process hearing request must, within 10 calendar days of receiving the request, send the other party a response that specifically addresses the issues in the due process hearing request.
Model Forms
34 CFR § 300.509
The State Educational Agency must develop model forms to help you file a due process hearing request and a State complaint. However, your State or the SAU may not require you to use these model forms. In fact, you can use this form or another appropriate model form, so long as it contains the required information for filing a due process hearing request or a State complaint.
Mediation
34 CFR § 300.506
General
The SAU must make mediation available to allow you and the SAU to resolve disagreements involving any matter under Part B of the IDEA, including matters arising prior to the filing of a due process hearing request. Thus, mediation is available to resolve disputes under Part B of the IDEA, whether or not you have filed a due process hearing request to request a due process hearing as described under the heading Filing a Due Process Hearing Request.
Requirements
The procedures must ensure that the mediation process:
1. Is voluntary on your part and the SAU's part;
2. Is not used to deny or delay your right to a due process hearing, or to deny any other rights you have under Part B of the IDEA; and
3. Is conducted by a qualified and impartial mediator who is trained in effective mediation techniques.
The SAU may develop procedures that offer parents and schools that choose not to use the mediation process, an opportunity to meet, at a time and location convenient to you, with a disinterested party:
1. Who is under contract with an appropriate alternative dispute resolution entity, or a parent training and information center or community parent resource center in the State; and
2. Who would explain the benefits and encourage the use of the mediation process to you.
The State must have a list of people who are qualified mediators and know the laws and regulations relating to the provision of special education and related services. The State Educational Agency must select mediators on a random, rotational, or other impartial basis. The State is responsible for the cost of the mediation process, including the costs of meetings. Each meeting in the mediation process must be scheduled in a timely manner and held at a place that is convenient for you and the SAU.
If you and the SAU resolve a dispute through the mediation process, both parties must enter into a legally binding agreement that sets forth the resolution and that:
1. States that all discussions that happened during the mediation process will remain confidential and may not be used as evidence in any subsequent due process hearing or civil proceeding; and
2. Is signed by both you and a representative of the SAU who has the authority to bind the SAU.
A written, signed mediation agreement is enforceable in any State court of competent jurisdiction (a court that has the authority under State law to hear this type of case) or in a district court of the United States. (See Section XV I(3)(B)(9)of this rule)
Discussions that happened during the mediation process must be confidential. They cannot be used as evidence in any future due process hearing or civil proceeding of any Federal court or State court of a State receiving assistance under Part B of IDEA.
Impartiality of mediator
The mediator:
1. May not be an employee of the State Educational Agency or the SAU that is involved in the education or care of your child; and
2. Must not have a personal or professional interest which conflicts with the mediator's objectivity.
A person who otherwise qualifies as a mediator is not an employee of a SAU or State agency solely because he or she is paid by the agency or SAU to serve as a mediator.
An attorney may represent a school administrative unit in a mediation only when an attorney represents the parents. An attorney representing a parent shall provide the superintendent of the school administrative unit and the Due Process Office of the Maine Department of Education with at least 7 days written notice prior to the mediation that they will be representing the parent at the mediation. Parties may consult with their attorneys prior to and after engaging in mediation.
If both parties agree, the parties may sign a waiver of the 7-day written notice of attendance of the parent's attorney in mediation. A copy of the signed waiver must be provided to the Department of Education Due Process Office.
If the parent does not choose to participate in mediation the parent may be contacted by a due process consultant form the Maine Department of Education who will discuss with the parent the benefits of mediation. If the parent would like to request a mediation or would like more information about mediation, the parent may contact the Due Process Office of the Maine Department of Education at 624-6644.
The Child's PlacementStatus During Pendency of Appeals ("Stay Put")
34 CFR § 300.518
Except as provided below under the heading PROCEDURES WHEN DISCIPLINING CHILDREN WITH DISABILITIES,during the pendency of a mediation or State complaint investigation request, or once a due process hearing request is sent to the other party,, and while waiting for the decision of any impartial due process hearing or court proceeding, your child must remain in his or her current educational placement unless you and the State or SAU agree otherwise,
If the due process hearing request involves an application for initial admission to public school, your child, with your consent, must be placed in the regular public school program until the completion of all such proceedings.
If the due process hearing request involves an application for initial services under Part B of the IDEA for a child who is transitioning from being served under Part C of the IDEA to Part B of the IDEA and who is no longer eligible for Part C services because the child has turned three, the SAU is not required to provide the Part C services that the child has been receiving. If the child is found eligible under Part B of the IDEA and you consent for the child to receive special education and related services for the first time, then, pending the outcome of the proceedings, the SAU must provide those special education and related services that are not in dispute (those which you and the SAU both agree upon).
Resolution Process
34 CFR § 300.510
Resolution meeting
Within 15 calendar days of receiving notice of your due process hearing request, and before the due process hearing begins, the SAU must convene a meeting with you and the relevant member or members of the individualized education program (IEP) Team who have specific knowledge of the facts identified in your due process hearing request. The meeting:
1. Must include a representative of the SAU who has decision-making authority on behalf of the SAU; and
2. May not include an attorney of the SAU unless you are accompanied by an attorney.
You and the SAU determine the relevant members of the IEP Team to attend the meeting.
The purpose of the meeting is for you to discuss your due process hearing request, and the facts that form the basis of the hearing request, so that the SAU has the opportunity to resolve the dispute.
The resolution meeting is not necessary if:
1. You and the SAU agree in writing to waive the meeting; or
2. You and the SAU agree to use the mediation process, as described under the heading Mediation.
Resolution period
If the SAU has not resolved the due process hearing request to your satisfaction within 30 calendar days of the receipt of the hearing request (during the time period for the resolution process), the due process hearing may occur.
The 45-calendar-day timeline for issuing a final decision begins at the expiration of the 30- calendar-day resolution period, with certain exceptions for adjustments made to the 30-calendar- day resolution period, as described below.
Except where you and the SAU have both agreed to waive the resolution process or to use mediation, your failure to participate in the resolution meeting will delay the timelines for the resolution process and due process hearing until you agree to participate in a meeting.
If after making reasonable efforts and documenting such efforts, the SAU is not able to obtain your participation in the resolution meeting, the SAU may, at the end of the 30-calendar-day resolution period, request that a hearing officer dismiss your due process hearing request. Documentation of such efforts must include a record of the SAU's attempts to arrange a mutually agreed upon 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 you and any responses received; and
3. Detailed records of visits made to your home or place of employment and the results of those visits.
If the SAU fails to hold the resolution meeting within 15 calendar days of receiving notice of your due process hearing requestor fails to participate in the resolution meeting, you may ask a hearing officer to order that the 45-calendar-day due process hearing timeline begin.
Adjustments to the 30-calendar-day resolution period
If you and the SAU agree in writing to waive the resolution meeting, then the 45-calendar-day timeline for the due process hearing starts the next day.
After the start of mediation or the resolution meeting and before the end of the 30-calendar-day resolution period, if you and the SAU agree in writing that no agreement is possible, then the 45- calendar-day timeline for the due process hearing starts the next day.
If you and the SAU agree to use the mediation process, at the end of the 30-calendar-day resolution period, both parties can agree in writing to continue the mediation until an agreement is reached. However, if either you or the SAU withdraws from the mediation process, then the 45-calendar-day timeline for the due process hearing starts the next day.
Written settlement agreement
If a resolution to the dispute is reached at the resolution meeting, you and the SAU must enter into a legally binding agreement that is:
1. Signed by you and a representative of the SAU who has the authority to bind the SAU; and
2. Enforceable in any State court of competent jurisdiction (a State court that has authority to hear this type of case) or in a district court of the United States. (See Section XV I(11) (F))
Agreement review period
If you and the SAU enter into an agreement as a result of a resolution meeting, either party (you or the SAU) may void the agreement within 3 business days of the time that both you and the SAU signed the agreement.
Hearings on Due Process Hearing Requests
Impartial Due Process Hearing
34 CFR § 300.511
General
Whenever a due process hearing request is filed, you or the SAU involved in the dispute must have an opportunity for an impartial due process hearing, as described in the Due Process
Hearing Request and Resolution Process sections.
Impartial hearing officer
At a minimum, a hearing officer:
1. Must not be an employee of the State Educational Agency or the SAU that is involved in the education or care of the child. However, a person is not an employee of the agency solely because he/she is paid by the agency to serve as a hearing officer;
2. Must not have a personal or professional interest that conflicts with the hearing officer's objectivity in the hearing;
3. Must be knowledgeable and understand the provisions of the IDEA, and Federal and State regulations pertaining to the IDEA, and legal interpretations of the IDEA by Federal and State courts; and
4. Must have the knowledge and ability to conduct hearings, and to make and write decisions, consistent with appropriate, standard legal practice.
Each SAU must keep a list of those persons who serve as hearing officers that includes a statement of the qualifications of each hearing officer.
Subject matter of due process hearing
The party (you or the SAU) that requests the due process hearing may not raise issues at the due process hearing that were not addressed in the due process hearing request, unless the other party agrees.
Timeline for requesting a hearing
You or the SAU must request an impartial hearing on a due process hearing request within two years of the date you or the SAU knew or should have known about the issue addressed in the hearing request.
Exceptions to the timeline
The above timeline does not apply to you if you could not file a due process hearing request because:
1. The SAU specifically misrepresented that it had resolved the problem or issue that you are raising in your hearing request; or
2. The SAU withheld information from you that it was required to provide to you under Part B of the IDEA.
Hearing Rights
34 CFR § 300.512
General
Any party to a due process hearing (including a hearing relating to disciplinary procedures) has the right to:
1. Be accompanied and advised by a lawyer and/or persons with special knowledge or training regarding the problems of children with disabilities;
2. Present evidence and confront, cross-examine, and require the attendance of witnesses;
3. Prohibit the introduction of any evidence at the hearing that has not been disclosed to that party at least five business days before the hearing;
4. Obtain a written, or, at your option, electronic, word-for-word record of the hearing; and
5. Obtain written, or, at your option, electronic findings of fact and decisions.
Additional disclosure of information
At least five business days prior to a due process hearing, you and the SAU must disclose to each other all evaluations completed by that date and recommendations based on those evaluations that you or the SAU intend to use at the hearing.
A hearing officer may prevent any party that fails to comply with this requirement from introducing the relevant evaluation or recommendation at the hearing without the consent of the other party.
Parental rights at hearings
You must be given the right to:
1. Have your child present;
2. Open the hearing to the public; and
3. Have the record of the hearing, the findings of fact and decisions provided to you at no cost.
Hearing Decisions
34 CFR § 300.513
Decision of hearing officer
A hearing officer's decision on whether your child (age birth through 2 years) received appropriate services or (age 3 and under 22 years of age) received a free appropriate public education (FAPE) must be based on substantive grounds.
In matters alleging a procedural violation, a hearing officer may find that your child did not receive appropriate services or FAPE only if the procedural inadequacies:
1. Interfered with your child's right to appropriate services or a free appropriate public education;
2. Significantly interfered with your opportunity to participate in the decision-making process regarding the provision of appropriate services or a free appropriate public education (FAPE) to your child; or
3. Caused a deprivation of an educational benefit.
Final Decision Notice
Every decision made at the conclusion of a proceeding subject to this rule shall be in writing and shall include findings of fact sufficient to apprise the parties and any interested member of the public of the basis for the decision.
Construction clause
None of the provisions described above can be interpreted to prevent a hearing officer from ordering a SAU to comply with the requirements in the procedural safeguards section of the Federal regulations under Part B of the IDEA (34 CFR §§ 300.500 through 300.536).
Separate request for a due process hearing
Nothing in the procedural safeguards section of the Federal regulations under Part B of the IDEA (34 CFR §§ 300.500 through 300.536) can be interpreted to prevent you from filing a separate due process hearing request on an issue separate from a due process hearing request already filed.
Findings and decision to advisory panel and general public
The State Educational Agency or the SAU, (whichever was responsible for your hearing) after deleting any personally identifiable information, must:
1. Provide the findings and decisions in the due process hearing or appeal to the State special education advisory panel; and
2. Make those findings and decisions available to the public.
Appeals
Finality of Decision; Appeal
34 CFR § 300.514
Finality of hearing decision
A decision made in a due process hearing (including a hearing relating to disciplinary procedures) must be in writing and is final, except that any party involved in the hearing (you or the SAU) may appeal the decision by bringing a civil action, as described below.
Timelines and Convenience of Hearings and Reviews
34 CFR § 300.515
The State Educational Agency must ensure that not later than 45 calendar days after the expiration of the 30-calendar-day period for resolution meetings or, as described under the sub-heading Adjustments to the 30-calendar-day resolution period, not later than 45 calendar days after the expiration of the adjusted time period:
1. A final decision is reached in the hearing; and
2. A copy of the decision is mailed to each of the parties.
A hearing officer may grant specific extensions of time beyond the 45-calendar-day time period described above at the request of either party.
Each hearing must be conducted at a time and place that is reasonably convenient to you and your child.
Civil Actions, Including the Time Period in Which to File Those Actions 34 CFR § 300.516
General
Any party (you or the SAU) who does not agree with the findings and decision in the due process hearing (including a hearing relating to disciplinary procedures) has the right to bring a civil action with respect to the matter that was the subject of the due process hearing. The action may be brought in a State court of competent jurisdiction (a State court that has authority to hear this type of case) or in a district court of the United States without regard to the amount in dispute.
If the parent has any questions regarding this requirement, they should be directed to the Due Process Office of the Maine Department of Education at 624-6650.
Time limitation
The party (you or the SAU) bringing the action shall have 90 day from the receipt of the decision of the hearing officer to file a civil action.
Additional procedures
In any civil action, the court:
A. Receives the records of the administrative proceedings;
B. Hears additional evidence at your request or at the SAU's request; and
C. Bases its decision on the preponderance of the evidence and grants the relief that the court determines to be appropriate.
Jurisdiction of district courts
The district courts of the United States have authority to rule on actions brought under Part B of the IDEA without regard to the amount in dispute.
Rule of construction
Nothing in Part B of the IDEA restricts or limits the rights, procedures, and remedies available under the U.S. Constitution, the Americans with Disabilities Act of 1990, Title V of the Rehabilitation Act of 1973 (Section 504), or other Federal laws protecting the rights of children with disabilities, except that before the filing of a civil action under these laws seeking relief that is also available under Part B of the IDEA, the due process procedures described above must be exhausted to the same extent as would be required if the party filed the action under Part B of the IDEA. This means that you may have remedies available under other laws that overlap with those available under the IDEA, but in general, to obtain relief under those other laws, you must first use the available administrative remedies under the IDEA (i.e., the due process hearing request, resolution meeting, and impartial due process hearing procedures) before going directly into court.
Attorneys' Fees
34 CFR § 300.517
General
In any action or proceeding brought under Part B of the IDEA, if you prevail, the court, in its discretion, may award reasonable attorneys' fees as part of the costs to you.
In any action or proceeding brought under Part B of the IDEA, the court, in its discretion, may award reasonable attorneys' fees as part of the costs to a prevailing State Educational Agency or SAU, to be paid by your attorney, if the attorney: (a) filed a due process hearing request or court case that the court finds is frivolous, unreasonable, or without foundation; or (b) continued to litigate after the litigation clearly became frivolous, unreasonable, or without foundation; or In any action or proceeding brought under Part B of the IDEA, the court, in its discretion, may award reasonable attorneys' fees as part of the costs to a prevailing State Educational Agency or SAU, to be paid by you or your attorney, if your request for a due process hearing or later court case was presented for any improper purpose, such as to harass, to cause unnecessary delay, or to unnecessarily increase the cost of the action or proceeding.
Award of fees
A court awards reasonable attorneys' fees as follows:
1. Fees must be based on rates prevailing in the community in which the action or hearing arose for the kind and quality of services furnished. No bonus or multiplier may be used in calculating the fees awarded.
2. Fees may not be awarded and related costs may not be reimbursed in any action or proceeding under Part B of the IDEA for services performed after a written offer of settlement to you if:
a. The offer is made within the time prescribed by Rule 68 of the Federal Rules of Civil Procedure or, in the case of a due process hearing or State-level review, at any time more than 10 calendar days before the proceeding begins;
b. The offer is not accepted within 10 calendar days; and
c. The court or administrative hearing officer finds that the relief finally obtained by you is not more favorable to you than the offer of settlement.
Despite these restrictions, an award of attorneys' fees and related costs may be made to you if you prevail and you were substantially justified in rejecting the settlement offer.
3. Fees may not be awarded relating to any meeting of the individualized education program (IEP) Team unless the meeting is held as a result of an administrative proceeding or court action.
A resolution meeting, as described under the heading Resolution meeting, is not considered a meeting convened as a result of an administrative hearing or court action, and also is not considered an administrative hearing or court action for purposes of these attorneys' fees provisions.
The court reduces, as appropriate, the amount of the attorneys' fees awarded under Part B of the IDEA, if the court finds that:
1. You, or your attorney, during the course of the action or proceeding, unreasonably delayed the final resolution of the dispute;
2. The amount of the attorneys' fees otherwise authorized to be awarded unreasonably exceeds the hourly rate prevailing in the community for similar services by attorneys of reasonably similar skill, reputation, and experience;
3. The time spent and legal services furnished were excessive considering the nature of the action or proceeding; or
4. The attorney representing you did not provide to the SAU the appropriate information in the due process request notice as described under the heading Due Process Hearing Request.
However, the court may not reduce fees if the court finds that the State or SAU unreasonably delayed the final resolution of the action or proceeding or there was a violation under the procedural safeguards provisions of Part B of the IDEA.
Procedures When Disciplining
Children with Disabilities
Authority of School Personnel
34 CFR § 300.530
Case-by-case determination
School personnel may consider any unique circumstances on a case-by-case basis, when determining whether a change of placement, made in accordance with the following requirements related to discipline, is appropriate for a child with a disability who violates a school code of student conduct.
General
To the extent that they also take such action for children without disabilities, school personnel may, for not more than 10 school days in a row, remove a child with a disability who violates a code of student conduct from his or her current placement to an appropriate interim alternative educational setting (which must be determined by the child's individualized education program (IEP) Team), another setting, or suspension. School personnel may also impose additional removals of the child of not more than 10 school days in a row in that same school year for separate incidents of misconduct, as long as those removals do not constitute a change of placement (see Change of Placement Because of Disciplinary Removals for the definition, below).
Once a child with a disability has been removed from his or her current placement for a total of 10 school days in the same school year, the SAU must, during any subsequent days of removal in that school year, provide services to the extent required below under the sub-heading Services.
Additional authority
If the behavior that violated the student code of conduct was not a manifestation of the child's disability (see Manifestation determination, below) and the disciplinary change of placement would exceed 10 school days in a row, school personnel may apply the disciplinary procedures to that child with a disability in the same manner and for the same duration as it would to children without disabilities, except that the school must provide services to that child as described below under Services. The child's IEP Team determines the interim alternative educational setting for such services.
Services
The services that must be provided to a child with a disability who has been removed from the child's current placement may be provided in an interim alternative educational setting.
A SAU is only required to provide services to a child with a disability who has been removed from his or her current placement for 10 school days or less in that school year, if it provides services to a child without disabilities who has been similarly removed.
A child with a disability who is removed from the child's current placement for more than 10 school days must:
1. Continue to receive educational services, so as to enable the child to continue to participate in the general education curriculum, although in another setting, and to progress toward meeting the goals set out in the child's IEP; and
2. Receive, as appropriate, a functional behavioral assessment, and behavioral intervention services and modifications, that are designed to address the behavior violation so that it does not happen again.
After a child with a disability has been removed from his or her current placement for 10 school days in that same school year, and if the current removal is for 10 school days in a row or less and if the removal is not a change of placement (see definition below), then school personnel, in consultation with at least one of the child's teachers, determine the extent to which services are needed to enable the child to continue to participate in the general education curriculum, although in another setting, and to progress toward meeting the goals set out in the child's IEP. If the removal is a change of placement (see definition below), the child's IEP Team determines the appropriate services to enable the child to continue to participate in the general education curriculum, although in another setting, and to progress toward meeting the goals set out in the child's IEP.
Manifestation determination
Within 10 school days of any decision to change the placement of a child with a disability because of a violation of a code of student conduct (except for a removal that is for 10 school days in a row or less and not a change of placement), the SAU, the parent, and relevant members of the IEP Team (as determined by the parent and the SAU) must review all relevant information in the student's file, including the child's IEP, any teacher observations, and any relevant information provided by the parents to determine:
1. If the conduct in question was caused by, or had a direct and substantial relationship to, the child's disability; or
2. If the conduct in question was the direct result of the SAU's failure to implement the child's IEP.
If the SAU, the parent, and relevant members of the child's IEP Team determine that either of those conditions was met, the conduct must be determined to be a manifestation of the child's disability.
If the SAU, the parent, and relevant members of the child's IEP Team determine that the conduct in question was the direct result of the SAU's failure to implement the IEP, the SAU must take immediate action to remedy those deficiencies.
Determination that behavior was a manifestation of the child's disability
If the SAU, the parent, and relevant members of the IEP Team determine that the conduct was a manifestation of the child's disability, the IEP Team must either:
1. Conduct a functional behavioral assessment, unless the SAU had conducted a functional behavioral assessment before the behavior that resulted in the change of placement occurred, and implement a behavioral intervention plan for the child; or
2. If a behavioral intervention plan already has been developed, review the behavioral intervention plan, and modify it, as necessary, to address the behavior.
Except as described below under the sub-heading Special circumstances, the SAU must return the child to the placement from which the child was removed, unless the parent and the district agree to a change of placement as part of the modification of the behavioral intervention plan.
Special circumstances
Whether or not the behavior was a manifestation of the child's disability, school personnel may remove a student to an interim alternative educational setting (determined by the child's IEP Team) for up to 45 school days, if the child:
1. Carries a weapon (see the definition below) to school or has a weapon at school, on school premises, or at a school function under the jurisdiction of the State Educational Agency or a SAU;
2. Knowingly has or uses illegal drugs (see the definition below), or sells or solicits the sale of a controlled substance, (see the definition below), while at school, on school premises, or at a school function under the jurisdiction of the State Educational Agency or a SAU; or
3. Has inflicted serious bodily injury (see the definition below) upon another person while at school, on school premises, or at a school function under the jurisdiction of the State Educational Agency or a SAU.
Definitions
Controlled substance means a drug or other substance identified under schedules I, II, III, IV, or V in section 202(c) of the Controlled Substances Act (21 U.S.C. 812(c)).
Illegal drug means a controlled substance; but does not include a controlled substance that is legally possessed or used under the supervision of a licensed health-care professional or that is legally possessed or used under any other authority under that Act or under any other provision of Federal law.
Serious bodily injury has the meaning given the term ''serious bodily injury'' under paragraph (3) of subsection (h) of section 1365 of title 18, United States Code: Bodily injury that involves a substantial risk of death; extreme physical pain; protracted and obvious disfigurement; or protracted loss or impairment of the function of a bodily member, organ or mental faculty.
Weapon has the meaning given the term ''dangerous weapon'' under paragraph (2) of the first subsection (g) of section 930 of title 18, United States Code: A weapon, device, instrument, material, or substance, animate or inanimate, that is used for, or is readily capable of, causing death or serious bodily injury, except that such term does not include a pocket knife with a blade of less than 2 1/2 inches in length.
Notification
On the date it makes the decision to make a removal that is a change of placement of the child because of a violation of a code of student conduct, the SAU must notify the parents of that decision, and provide the parents with a procedural safeguards notice.
Change of Placement Because of Disciplinary Removals
34 CFR § 300.536
A removal of a child with a disability from the child's current educational placement is a change of placement if:
1. The removal is for more than 10 school days in a row; or
2. The child has been subjected to a series of removals that constitute a pattern because:
a. The series of removals total more than 10 school days in a school year;
b. The child's behavior is substantially similar to the child's behavior in previous incidents that resulted in the series of removals;
c. Of such additional factors as the length of each removal, the total amount of time the child has been removed, and the proximity of the removals to one another; and
Whether a pattern of removals constitutes a change of placement is determined on a case-by-case basis by the SAU and, if challenged, is subject to review through due process and judicial proceedings.
Determination of Setting
34 CFR § 300.531
The individualized education program (IEP) Team must determine the interim alternative educational setting for removals that are changes of placement, and removals under the headings Additional authority and Special circumstances, above.
Appeal
34 CFR § 300.532
General
The parent of a child with a disability may file a due process hearing request (see above) to request a due process hearing if he or she disagrees with:
1. Any decision regarding placement made under these discipline provisions; or
2. The manifestation determination described above.
The SAU may file a due process hearing request (see above) to request a due process hearing if it believes that maintaining the current placement of the child is substantially likely to result in injury to the child or to others.
Authority of hearing officer
A hearing officer that meets the requirements described under the sub-heading Impartial Hearing Officer must conduct the due process hearing and make a decision. The hearing officer may:
1. Return the child with a disability to the placement from which the child was removed if the hearing officer determines that the removal was a violation of the requirements described under the heading Authority of School Personnel, or that the child's behavior was a manifestation of the child's disability; or
2. Order a change of placement of the child with a disability to an appropriate interim alternative educational setting for not more than 45 school days if the hearing officer determines that maintaining the current placement of the child is substantially likely to result in injury to the child or to others.
These hearing procedures may be repeated, if the SAU believes that returning the child to the original placement is substantially likely to result in injury to the child or to others.
Whenever a parent or a SAU files a due process hearing request to request such a hearing, a hearing must be held that meets the requirements described under the heading Due Process Hearing Requests except as follows:
1. The State Educational Agency must arrange for an expedited due process hearing, which must occur within 20 school days of the date the hearing is requested and must result in a determination within 10 school days after the hearing.
2. Unless the parents and the SAU agree in writing to waive the meeting, or agree to use mediation, a resolution meeting must occur within seven calendar days of receiving notice of the due process hearing request. The hearing may proceed unless the matter has been resolved to the satisfaction of both parties within 15 calendar days of receipt of the due process hearing request.
3. A State may establish different procedural rules for expedited due process hearings than it has established for other due process hearings, but except for the timelines, those rules must be consistent with the rules in this document regarding due process hearings.
A party may appeal the decision in an expedited due process hearing in the same way as they may for decisions in other due process hearings (see Appeals, above).
Placement during Appeals
34 CFR § 300.533
When, as described above, the parent or SAU has filed a due process hearing request related to disciplinary matters, the child must (unless the parent and the State Educational Agency or SAU agree otherwise) remain in the interim alternative educational setting pending the decision of the hearing officer, or until the expiration of the time period of removal as provided for and described under the heading Authority of School Personnel, whichever occurs first.
Protections for Children Not Yet Eligible for Special Education and Related Services
34 CFR § 300.534
General
If a child has not been determined eligible for special education and related services and violates a code of student conduct, but the SAU had knowledge (as determined below) before the behavior that brought about the disciplinary action occurred, that the child was a child with a disability, then the child may assert any of the protections described in this notice.
Basis of knowledge for disciplinary matters
A SAU must be deemed to have knowledge that a child is a child with a disability if, before the behavior that brought about the disciplinary action occurred:
1. The parent of the child expressed concern in writing that the child is in need of special education and related services to supervisory or administrative personnel of the appropriate educational agency, or a teacher of the child;
2. The parent requested an evaluation related to eligibility for special education and related services under Part B of the IDEA; or
3. The child's teacher, or other SAU personnel expressed specific concerns about a pattern of behavior demonstrated by the child directly to the SAU's director of special education or to other supervisory personnel of the SAU.
Exception
A SAU would not be deemed to have such knowledge if:
1. The child's parent has not allowed an evaluation of the child or refused special education services; or
2. The child has been evaluated and determined to not be a child with a disability under Part B of the IDEA.
Conditions that apply if there is no basis of knowledge
If prior to taking disciplinary measures against the child, a SAU does not have knowledge that a child is a child with a disability, as described above under the sub-headings Basis of knowledge for disciplinary matters and Exception, the child may be subjected to the disciplinary measures that are applied to children without disabilities who engaged in comparable behaviors.
However, if a request is made for an evaluation of a child during the time period in which the child is subjected to disciplinary measures, the evaluation must be conducted in an expedited manner.
Until the evaluation is completed, the child remains in the educational placement determined by school authorities, which can include suspension or expulsion without educational services.
If the child is determined to be a child with a disability, taking into consideration information from the evaluation conducted by the SAU, and information provided by the parents, the SAU must provide special education and related services in accordance with Part B of the IDEA, including the disciplinary requirements described above.
Referral to and Action by Law Enforcement and Judicial Authorities
34 CFR § 300.535
Part B of the IDEA does not:
1. Prohibit an agency from reporting a crime committed by a child with a disability to appropriate authorities; or
2. Prevent State law enforcement and judicial authorities from exercising their responsibilities with regard to the application of Federal and State law to crimes committed by a child with a disability.
Transmittal of records
If a SAU reports a crime committed by a child with a disability, the SAU:
1. Must ensure that copies of the child's special education and disciplinary records are transmitted for consideration by the authorities to whom the agency reports the crime; and
2. May transmit copies of the child's special education and disciplinary records only to the extent permitted by the Family Educational Rights and Privacy Act (FERPA).
Requirements for Unilateral Placement by Parents of Children in Private Schools at Public Expense
General
34 CFR § 300.148
Part B of the IDEA does not require a SAU to pay for the cost of education, including special education and related services, of your child with a disability at a private school or facility if the SAU made a free appropriate public education (FAPE) available to your child and you choose to place the child in a private school or facility. However, the SAU where the private school is located must include your child in the population whose needs are addressed under the Part B provisions regarding children who have been placed by their parents in a private school under 34 CFR §§ 300.131 through 300.144.
Reimbursement for private school placement
If your child previously received special education and related services under the authority of a SAU, and you choose to enroll your child in a private preschool, elementary school, or secondary school without the consent of or referral by the SAU, a court or a hearing officer may require the agency to reimburse you for the cost of that enrollment if the court or hearing officer finds that the agency had not made a free appropriate public education (FAPE) available to your child in a timely manner prior to that enrollment and that the private placement is appropriate. A hearing officer or court may find your placement to be appropriate, even if the placement does not meet the State standards that apply to education provided by the State Educational Agency and SAUs.
Limitation on reimbursement
The cost of reimbursement described in the paragraph above may be reduced or denied:
1. If: (a) At the most recent individualized education program (IEP) meeting that you attended prior to your removal of your child from the public school, you did not inform the IEP Team that you were rejecting the placement proposed by the SAU to provide FAPE to your child, including stating your concerns and your intent to enroll your child in a private school at public expense; or (b) At least 10 business days (including any holidays that occur on a business day) prior to your removal of your child from the public school, you did not give written notice to the SAU of that information;
2. If, prior to your removal of your child from the public school, the SAU provided prior written notice to you, of its intent to evaluate your child (including a statement of the purpose of the evaluation that was appropriate and reasonable), but you did not make the child available for the evaluation; or
3. Upon a court's finding that your actions were unreasonable.
However, the cost of reimbursement:
1. Must not be reduced or denied for failure to provide the notice if: (a) The school prevented you from providing the notice; (b) You had not received notice of your responsibility to provide the notice described above; or (c) Compliance with the requirements above would likely result in physical harm to your child; and
2. May, in the discretion of the court or a hearing officer, not be reduced or denied for the parents' failure to provide the required notice if: (a) The parent is not literate or cannot write in English; or (b) Compliance with the above requirement would likely result in serious emotional harm to the child.
Surrogate parents
34 CFR § 300.519
General. (a)
Each public agency must ensure that the rights of a child are protected when-
(1) No parent (as defined in §300.30) can be identified;
(2) The public agency, after reasonable efforts, cannot locate a parent;
(3) The child is a ward of the State under the laws of that State; or
(4) The child is an unaccompanied homeless youth as defined in section 725(6) of the McKinney-Vento Homeless Assistance Act (42 U.S.C. 11434a(6)).
Duties of public agency (b)
The duties of a public agency under paragraph (a) of this section include the assignment of an individual to act as a surrogate for the parents. This must include a method-
(1) For determining whether a child needs a surrogate parent; and
(2) For assigning a surrogate parent to the child.
Wards of the State. (c)
In the case of a child who is a ward of the State, the surrogate parent alternatively may be appointed by the judge overseeing the child's case, provided that the surrogate meets the requirements in paragraphs (d)(2)(i) and (e) of this section.
Criteria for selection of surrogate parents (d)
(1) The public agency may select a surrogate parent in any way permitted under State law.
(2) Public agencies must ensure that a person selected as a surrogate parent-
(i) Is not an employee of the SEA, the LEA, EIS provider or any other agency that provides early intervention services, education, care, or other services to the child or any family member of the child;
(ii) Has no personal or professional interest that conflicts with the interest of the child the surrogate parent represents; and
(iii) Has knowledge and skills that ensure adequate representation of the child.
Non-employee requirement; compensation (e)
A person otherwise qualified to be a surrogate parent under paragraph (d) of this section is not an employee of the agency solely because he or she is paid by the agency to serve as a surrogate parent.
Unaccompanied homeless youth (f)
In the case of a child who is an unaccompanied homeless youth, appropriate staff of emergency shelters, transitional shelters, independent living programs, and street outreach programs may be appointed as temporary surrogate parents without regard to paragraph (d)(2)(i) of this section, until a surrogate parent can be appointed that meets all of the requirements of paragraph (d) of this section.
Surrogate parent responsibilities (g)
The surrogate parent may represent the child in all matters relating to-
(1) The identification, evaluation, and educational placement of the child; and
(2) The provision of FAPE to the child.
SEA responsibility (h)
The SEA must make reasonable efforts to ensure the assignment of a surrogate parent not more than 30 days after a public agency determines that the child needs a surrogate parent.
Transfer of parental rights at age of majority.
34 CFR § 300.520
General (a)
A State may provide that, when a child with a disability reaches the age of majority under State law (age 18 in Maine) that applies to all children (except for a child with a disability who has been determined to be incompetent under State law)-
(1)(i) The public agency must provide any notice required by this part to both the child and the parents; and
(ii) All rights accorded to parents under Part B of the Act transfer to the child;
(2) All rights accorded to parents under Part B of the Act transfer to children who are incarcerated in an adult or juvenile, State or local correctional institution; and
(3) Whenever a State provides for the transfer of rights under this part pursuant to paragraph (a)(1) or (a)(2) of this section, the agency must notify the child and the parents of the transfer of rights.
Special rule (b)
A State must establish procedures for appointing the parent of a child with a disability, or, if the parent is not available, another appropriate individual, to represent the educational interests of the child throughout the period of the child's eligibility under Part B of the Act if, under State law, a child who has reached the age of majority, but has not been determined to be incompetent, can be determined not to have the ability to provide informed consent with respect to the child's educational program.
C.M.R. 05, 071, ch. 101, app 071-101-1