05-071-101 Me. Code R. § XVI

Current through 2024-44, October 30, 2024

Section 071-101-XVI - DISPUTE RESOLUTION PROCEDURES: (MEDIATIONS, COMPLAINTS AND HEARINGS)

1.Right to Dispute Resolution, Generally

A.For children B-2

(1)Any parent or interested party, including early intervention providers, and including an organization or individual from another state, may submit a written request for a state complaint to the Department alleging that a regional site has failed to comply with State or federal special education law or regulation, or when there is a dispute regarding the identification, evaluation, placement or provision of appropriate services to a child.

(2)A parent or SAU may submit a request for mediation to the Department to resolve a dispute regarding a regional site's compliance with this rule or provision of services in the natural environment to a child with a disability.

(3)A parent or SAU may submit a written request for a due process hearing to the Department when there is a dispute regarding the identification, evaluation, placement or the provision of appropriate services to the child.

B.For Children 3-22

(1)Any parent, adult student or interested party may submit a written complaint to the Department alleging that a public agency has failed to comply with this rule, or when there is a dispute regarding the identification, evaluation, placement or the provision of appropriate services to a child.

(2)A parent, adult student, or SAU may submit a written request to the Department for mediation to resolve a dispute regarding a unit's compliance with this rule or the provision of a free appropriate public education in the least restrictive educational alternative to a child with a disability.

(3)A parent, adult student or SAU may submit a written request for a due process hearing to the Department, after having submitted the written request first to the responding party, when there is a disagreement regarding the identification, evaluation, placement or the provision of a free appropriate public education to a child.

2.Stand-alone Mediation

A.Request

(1)Request by Parent or Adult Student - A parent, an adult student, the designated representative of the parent, surrogate parent or adult student, who requests a stand-alone mediation shall notify, in writing, the School Administrative Unit (SAU) and the Due Process Coordinator in the Department of Education of the request for a stand-alone mediation. A stand-alone mediation is a mediation that is not associated with a state complaint, a hearing, or an expedited hearing.

(a)The request shall:

(i)Include the name of the child involved, the parent's name, address and telephone number, the school administrative unit which the child attends, a brief summary of the disagreement and any facts relating to the disagreement;

(ii)Include a summary of how the SAU was informed of the disagreement, any actions taken by the SAU to resolve the problem and how the problem could be resolved; and

(iii)Be in writing. An oral request shall be reduced to writing by the superintendent or a designee of the SAU and signed by the parent or adult students.

(2)Request by SAU - If the SAU seeks a stand-alone mediation, the superintendent shall send the notice to the parent or adult student prior to forwarding the request to the Due Process Coordinator.

(a)The notice to the parent and the request to the Due Process Coordinator shall:

(i)Include the name of the child involved, the parent's name, address and telephone number, the school administrative unit which the child attends, a brief summary of the disagreement and any facts relating to the disagreement;

(ii)Include a summary of how the parent was informed of the disagreement, any actions taken by the SAU to resolve the problem and how the problem could be resolved; and

(iii)Be in writing.

(3)Duties of the Department- Upon receipt of the request for a stand- alone mediation, the Due Process Coordinator shall provide the parents with information pertaining to the availability of free or low-cost legal aid and other related services.

(4)Requirements - See Section XV I(3) (B)and (C) of this rule.

B.State Enforcement Mechanisms. For enforcement of a mediation agreement, the Department shall provide to parents and adult students the State complaint investigation procedure. The State complaint investigation procedure is not mandatory and will not delay or deny a party the right to seek enforcement of the written mediation agreement in a State court of competent jurisdiction or in a district court of the United States. [34 CFR 300.537 provides the State the option of enforcement.]

3.Mediation Associated with a Request for a Due Process Hearing

A. General

If either a parent, adult student or an SAU seeks a due process hearing, the superintendent shall encourage the parents to resolve the disagreement through a resolution session or mediation or other third- party assistance. Such attempts shall not interfere with the parent's or adult student's right to a due process hearing or with the hearing timeline.

B. Requirements. [34 CFR 300.506, 303.431]

(1)Mediation under this section shall:

(a)Be voluntary on the part of the parties;

(b) Not be used to deny or delay a parent's right to a hearing on the parent's due process hearing request, or to deny any other rights afforded under Part B of the Act; and

(c)Be conducted by a qualified and impartial mediator who is trained in effective mediation techniques.

(2)

(a) The Department shall maintain a list of individuals who are qualified mediators and knowledgeable in laws and regulations relating to the provision of special education and related services.

(b) The Department shall select mediators on a random, rotational, or other impartial basis.

(3) The Department shall bear the cost of the mediation process.

(4) Each session in the mediation process shall be scheduled in a timely manner and shall be held in a location that is convenient to the parties to the dispute.

(5) If the parties resolve a dispute through the mediation process, the parties shall execute a legally binding agreement that sets forth that resolution and that-

(a) States that all discussions that occurred during the mediation process will remain confidential and may not be used as evidence in any subsequent due process hearing or civil proceeding; and

(b) Is signed by both the parent and a representative of the SAU who has the authority to bind such agency.

(6) A written, signed mediation agreement under this paragraph shall be enforceable in any State court of competent jurisdiction or in a district court of the United States. Discussions that occur during the mediation process shall be confidential and may not be used as evidence in any subsequent due process hearing or civil proceeding of any Federal court or State court of a State receiving assistance under this part.

(7)Parents may be accompanied to the mediation by an advocate or other person knowledgeable in providing special education services. School personnel with authorization to commit resources and personnel involved with the dispute shall attend any mediation. School administrative units may be represented by counsel in a mediation only when the parents are represented by counsel. The SAU may be accompanied at mediation by a non-attorney advocate or consultant only when the parent is similarly accompanied by an individual who has been engaged to perform special education advocacy or consultancy, or else is represented at the mediation by an attorney. 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. Both parties may agree in writing to waive the 7-day written notice of the parent's attorney's planned attendance at the mediation.

(8)State enforcement mechanisms. For enforcement of a mediation agreement, the Department shall provide to parents and adult students the State complaint investigation procedure. The State complaint investigation procedure is not mandatory and will not delay or deny a party the right to seek enforcement of the written mediation agreement in a State court of competent jurisdiction or in a district court of the United States. [34 CFR 300.537 provides the State the option of enforcement.]

C. Impartiality of Mediator.

(1) An individual who serves as a mediator under this part:

(a) May not be an employee of the Department or the SEA or an early intervention services provider (34 CFR 303.431(c)) that is involved in the education or care of the child; and

(b) Must not have a personal or professional interest that conflicts with the person's objectivity.

(2) A person who otherwise qualifies as a mediator is not an employee of the Department solely because he or she is paid by the Department to serve as a mediator. [34 CFR 300.506(c)]

4.Complaints

A. Minimum State Complaint Procedures. [34 CFR 300.153]

(1)Within 60 days after a complaint is filed under this section the Department shall:

(a) Carry out an independent on-site investigation, if it determines that an investigation is necessary;

(b) Give the complainant the opportunity to submit additional information, either orally or in writing, about the allegations in the complaint;

(c) Provide the SAU with the opportunity to respond to the complaint, including, at the discretion of the SAU, a proposal to resolve the complaint;

(d) Provide an opportunity for a parent who has filed a complaint (or individual or organization who has filed a complaint, with the authorization of the parent) and the SAU to voluntarily engage in mediation consistent with Section XV I.2 of this Chapter and 34 CFR §300.506;

(e) Review all relevant information and make an independent determination as to whether the SAU is violating a requirement of Part B or Part C of the Act or of this chapter; and

(f) Issue a written decision to the complainant that addresses each allegation in the complaint and contains--

(i) Findings of fact and conclusions; and

(ii) The reasons for the Department 's final decision.

(2)The time limit described in paragraph (1) of this section may be extended only if:

(a) Exceptional circumstances exist with respect to a particular complaint; or

(b) The parent (or individual or organization, with authorization of the parent) and the SAU agree to extend the time to engage in mediation pursuant to paragraph (1) (d) of this section: and

(3)Provide procedures for effective implementation of the Department's final decision: shall include:

(a) Technical assistance activities;

(b) Negotiations; and

(c) Corrective actions to achieve compliance.

(4)

(a) If a written complaint is received that is also the subject of a due process hearing under Section XIV.5 of this chapter [§300.507 or §§ 300.530 through 300.532], or contains multiple issues of which one or more are part of that hearing, the Department shall set aside any part of the complaint that is being addressed in the due process hearing until the conclusion of the hearing. However, any issue in the complaint that is not a part of the due process action shall be resolved using the time limit and procedures described in paragraphs (a) and (b) of this section.

(b) If an issue raised in a complaint filed under this section has previously been decided in a due process hearing involving the same parties--

(i) The due process hearing decision is binding on that issue; and

(ii) The Department shall inform the complainant to that effect.

(c) A complaint alleging a SAU's failure to implement a due process hearing decision shall be resolved by the Department [20 U.S.C. 1221e-3 and 34 CFR 300.152]

B. Filing a Complaint

(1) An organization or individual may file a signed written complaint under the procedures described in paragraph (A) of this section.

(2) The complaint must include:

(a) A statement that a public agency, SAU has violated a requirement of Part B or Part C of the Act or of this chapter;

(b) The facts on which the statement is based;

(c) The signature and contact information for the complainant; and

(d) If alleging violations with respect to a specific child --

(i) The name and address of the residence of the child;

(ii) The name of the school or the early intervention services provider the child is attending;

(iii) In the case of a homeless child or youth (within the meaning of section 725(2) of the McKinney-Vento Homeless Assistance Act (42 U.S.C. 11434a(2)), available contact information for the child, and the name of the school the child is attending;

(iv) A description of the nature of the problem of the child, including facts relating to the problem; and

(v) A proposed resolution of the problem to the extent known and available to the party at the time the complaint is filed.

(3) The complaint must allege a violation that occurred not more than one year prior to the date that the complaint is received in accordance with paragraph (1) of this section [§300.151] 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.

(4) The party filing the complaint must forward a copy of the complaint to the SAU serving the child at the same time the party files the complaint with the Department. [20 USC 1221e-3 and 34 CFR 300.153]

5.Filing a Due Process Hearing Request

A. General

(1) A parent, adult student, or a SAU may file a due process Hearing request on any matters (relating to a proposal to initiate or change the identification, evaluation, placement or the provision of appropriate services to a child B-2 or the educational placement of, or the provision of FAPE to the child three to twenty-two). [includes 34 CFR 303.440(a)(1)]

(2) The due process hearing request must allege a violation that occurred not more than two years before the date the parent or SAU knew or should have known about the alleged action that forms the basis of the due process hearing request.

B. Information for Parents

The Department shall inform the parent of any free or low-cost legal and other relevant services available in the area if:

(1) The parent requests the information; or

(2) The parent or SAU files a due process hearing request under this section. [Authority: 20 U.S.C. 1415(b)(6) and 34 CFR 300.507]

6.Due Process Hearing Request. [34 CFR 300.508, 303.431]

A. General.

(1) The party filing a due process hearing request, or the attorney representing a party, must provide to the other party the due process hearing request (which shall remain confidential).

(2) The party filing a due process hearing request must forward a copy of the due process hearing request to the Department.

B. Content of Hearing Request.

The due process hearing request must include:

(1) The name of the child;

(2) The address of the residence of the child;

(3) The name of the school the child is attending;

(4) In the case of a homeless child or youth (within the meaning of section 725(2) of the McKinney-Vento Homeless Assistance Act (42 U.S.C. 11434a(2)), available contact information for the child, and the name of the school the child is attending;

(5) A description of the nature of the problem concerning the child relating to the proposed or refused initiation or change, including facts relating to the problem; and

(6) A proposed resolution of the problem to the extent known and available to the party at the time.

C. Notice Required Before a Hearing on a Due Process Hearing Request

A party may not have a hearing on a due process hearing request until the party, or the attorney representing the party, files a due process hearing request that meets the requirements of paragraph (B) of this section.

D. Sufficiency of Hearing Request

(1) The due process hearing request required by this section must be deemed sufficient unless the party receiving the due process hearing request notifies the hearing officer and the other party in writing, within 15 days of receipt of the due process hearing request, that the receiving party believes the due process hearing request does not meet the requirements in paragraph (B) of this section.

(2) Within five days of receipt of notification under paragraph (D)(1) of this section, the hearing officer must make a determination on the face of the due process hearing request of whether the due process hearing request meets the requirements of paragraph (B) of this section, and must immediately notify the parties in writing of that determination.

(3) A party may amend its due process hearing request only if:

(a) The other party consents in writing to the amendment and is given the opportunity to resolve the due process hearing request through a resolution meeting held pursuant to Section XV I.11 of this chapter; or

(b) The hearing officer grants permission, except that the hearing officer may only grant permission to amend at any time not later than five days before the due process hearing begins.

(4) If a party files an amended due process hearing request, the timelines for the resolution meeting in Section XV I.11.A of this chapter and the time period to resolve in Section XV I.11.B of this chapter begin again with the filing of the amended due process hearing request.

E. SAU Response to a Due Process Hearing Request.

(1) If the SAU has not sent a prior written notice under 34 CFR§ 300.503 to the parent regarding the subject matter contained in the parent's due process hearing request, the SEA must, within 10 days of receiving the due process hearing request, send to the parent a response that includes:

(a) An explanation of why the SAU proposed or refused to take the action raised in the due process hearing request;

(b) A description of other options that the IEP Team considered and the reasons why those options were rejected;

(c) A description of each evaluation procedure, assessment, record, or report the SAU used as the basis for the proposed or refused action; and

(d) A description of the other factors that are relevant to the SAU's proposed or refused action.

(2) A response by an SAU under paragraph (E)(1) of this section shall not be construed to preclude the SAU from asserting that the parent's due process hearing request was insufficient, where appropriate.

F. Other Party Response to a Due Process Hearing Request.

Except as provided in paragraph (E) of this section, the party receiving a due process hearing request must, within 10 days of receiving the due process hearing request, send to the other party a response that specifically addresses the issues raised in the due process hearing request. [34 CFR 300.508]

G.Pre-hearing Conference

The hearing officer shall convene a pre-hearing conference to consider the simplification or clarification of issues, the limitation of the number of witnesses, the possibility of agreement disposing of all or any of the issues in dispute, and such other matters as may aid in the disposition of the adjudicatory proceeding.

7.Subpoenas

A.Issuance of subpoena

The Commissioner may issue subpoenas in the name of the Department to require the attendance and testimony of any witness and the production of any evidence relating to any issue or fact in the due process hearing upon the request of either party to the hearing.

B.Fees, Expenses

Any fees for attendance and travel required by the witnesses shall be the responsibility of the party seeking the subpoena.

Issuance of subpoenas shall conform in all other respects to the requirements of the Maine Administrative Procedure Act, 5 MRSA §9060.

C.Petition for Modification of Subpoena

Any witness subpoenaed may petition the hearing officer to vacate or modify the subpoena issued. The hearing officer shall give prompt notice to the party who requested issuance of the subpoena. After such investigation as the hearing officer deems appropriate, the petition may be granted in whole or in part upon a finding that the testimony or the evidence requested does not relate with reasonable directness to any matter in question, or that the subpoena for attendance of a witness or the production of evidence is unreasonable or oppressive or has not been issued a reasonable period in advance of the time when evidence is requested.

8.Pre-Hearing Motions

If a party in a hearing requires a response from the hearing officer about an issue in the hearing prior to the hearing or wishes for the hearing officer to dismiss the request for hearing, the party may submit a written motion to the hearing officer, the other party, and their representatives, if applicable. Upon receiving a motion the hearing officer shall set a deadline for the opposing party to respond to the motion.

9.Hearing Procedures

The due process hearing shall be conducted according to the procedures established in this section.

A.Opening Statement

The hearing officer shall open the hearing by describing the procedures to be followed during the hearing, the facts and issues to be determined in the hearing, any stipulations or agreements between the parties, and a statement of the right to appeal the decision.

B.Testimony

Witnesses called by either party shall testify one at a time. They shall be permitted to listen to one another's testimony only with the consent of both parties and at the discretion of the hearing officer. Testimony shall be permitted by alternative means, such as video conferences and individual or conference calls.

C.Recording

A written or electronic verbatim recording of all testimony and other evidence presented at the hearing shall be made and shall become part of the record of the hearing.

D.Evidence Admitted

The hearing officer shall not be bound by the rules of evidence applicable to the courts, but shall be bound by the rules of privilege recognized by law. Evidence shall be admitted if it is the kind of evidence upon which reasonable persons are accustomed to rely in the conduct of serious affairs. The hearing officer may exclude irrelevant or unduly repetitious evidence and shall exclude evidence not disclosed to the other party at least five business days prior to the due process hearing.

E.Persons Presenting Testimony or Exhibits Shall be Sworn or Affirmed.

F.Official Notice

The hearing officer may take official notice of any facts on which judicial notice could be taken and in addition may take official notice of statutes, regulations and similar non-confidential Department or school documents. Parties shall be notified of the material so noticed and they shall be afforded an opportunity to contest the substance or materiality of the facts noticed.

G.Facts Officially Noticed Shall be Included and Indicated as such in the record.

H.Cross-Examination

Both parties and the hearing officer have the right to examine and cross- examine witnesses.

I.Order of Presentation

The order of presentation of testimony and exhibits shall be as follows unless otherwise agreed by the parties or determined appropriate by the hearing officer.

(1)Opening remarks by the hearing officer;

(2)Opening statement by the party requesting the hearing;

(3)Opening statement by the other party;

(4)Presentation of evidence by the party (superintendent/superintendent designees or parents) requesting the hearing and any witnesses for that party;

(5) Presentation of evidence by the other party and any witnesses for that party;

(6)Rebuttal witnesses for the party requesting the hearing;

(7)Rebuttal witnesses for the other party;

(8)Summation by the party requesting the hearing; and

(9)Summation by the other party.

I.Concluding Remarks by the Hearing Officer.

Prior to adjournment, the hearing officer shall advise all parties that the findings of fact and the hearing officer's written decision shall be made within 15 days of the conclusion of the hearing.

J.Conclusion of Hearing; Reopening of Record.

Upon conclusion of the hearing, no other evidence or testimony shall be permitted unless the record is held open by the hearing officer for the receipt of additional material specifically designated. The hearing officer may reopen the record for further proceedings at any time prior to the issuance of the final decision upon provision of appropriate notice to the parties.

10.Model Forms

A.The Department shall develop model forms to assist parents and SAUs in filing a due process hearing request in accordance with Sections XV I.5.A and XV I.6.A through C of this rule and to assist parents and other parties in filing a complaint under Section XV I.4. However, the Department shall not require the use of the model forms. These model forms apply to both Part C (B-2) and Part B (3-22).

B. Parents, public agencies, and other parties may use the appropriate model form described in paragraph (A) of this section, or another form or other document, so long as the form or document that is used meets, as appropriate, the content requirements in Section XV I.6.B for filing a due process hearing request, or the requirements in XV I.4.B(2) for filing a complaint. [34 CFR 300.509]

11.Resolution Process

A. Resolution Meeting

(1) Within 15 days of receiving notice of the parent's due process hearing request, and prior to the initiation of a due process hearing under Section XV I.13, the SAU must convene a meeting with the parent and the relevant member or members of the IEP Team who have specific knowledge of the facts identified in the due process hearing request that--

(a) Includes a representative of the SAU who has decision-making authority on behalf of that agency; and

(b) May not include an attorney of the SAU unless the parent is accompanied by an attorney.

(2) The purpose of the meeting is for the parent of the child to discuss the due process hearing request, and the facts that form the basis of the due process hearing request, so that the SAU has the opportunity to resolve the dispute that is the basis for the due process hearing request.

(3) The meeting described in paragraph (A)(1) and (2) of this section need not be held if--

(a) The parent and the SAU agree in writing to waive the meeting; or

(b) The parent and the SAU agree to use the mediation process described in Section XVI. 3.

(4) The parent and the SAU determine the relevant members of the IEP Team to attend the meeting.

These apply to Part C 34 CFR 303.442.

B. Resolution Period

(1) If the SAU has not resolved the due process hearing request to the satisfaction of the parent within 30 days of the receipt of the due process hearing request, the due process hearing may occur.

(2) Except as provided in paragraph (C) of this section, the timeline for issuing a final decision under Section XV I.17 begins at the expiration of this 30-day period.

(3) Except where the parties have jointly agreed to waive the resolution process or to use mediation, notwithstanding paragraphs (B)(1) and (2) of this section, the failure of the parent filing a due process hearing request to participate in the resolution meeting will delay the timelines for the resolution process and due process hearing until the meeting is held.

(4) If the SAU is unable to obtain the participation of the parent in the resolution meeting after reasonable efforts have been made (and documented using the procedures in Section VI.H(4)), the SAU may, at the conclusion of the 30-day period, request that a hearing officer dismiss the parent's due process hearing request.

(5) If the SAU fails to hold the resolution meeting specified in paragraph (A) of this section within 15 days of receiving notice of a parent's due process hearing request or fails to participate in the resolution meeting, the parent may seek the intervention of a hearing officer to begin the due process hearing timeline.

C. Adjustments to 30-day Resolution Period

The 45-day timeline for the due process hearing in Section XV I.17.A starts the day after one of the following events:

(1) Both parties agree in writing to waive the resolution meeting;

(2) After either the mediation or resolution meeting starts but before the end of the 30-day period, the parties agree in writing that no agreement is possible;

(3) If both parties agree in writing to continue the mediation at the end of the 30-day resolution period, but later, the parent or public agency withdraws from the mediation process.

D. Written Settlement Agreement

If a resolution to the dispute is reached at the meeting described in paragraphs (A)(1) and (2) of this section, the parties must execute a legally binding agreement that is--

(1) Signed by both the parent and a representative of the SAU who has the authority to bind the agency; and

(2) Enforceable in any State court of competent jurisdiction or in a district court of the United States, or by the Department. [Section XV I.11.F below]

E. Agreement Review Period

If the parties execute an agreement pursuant to paragraph (D) of this section, a party may void the agreement within 3 business days of the agreement's execution. [34 CFR 300.510]

F.State Enforcement Mechanisms

For enforcement of a resolution session agreement, the SEA provides to parent and adult students the State complaint investigation procedure. (Section XV I.4) The State complaint investigation procedure is not mandatory and will not delay or deny a party the right to seek enforcement of the written resolution session agreement in a State court of competent jurisdiction or in a district court of the United States. [34 CFR § 300.537 provides the State the option for enforcement]

12.Settlement Offer

A.The SAU may provide the parents with a written settlement offer prior to the date of the hearing. If the parents accept the settlement offer, they shall notify the SAU, the hearing officer, and the Department no later than the date of the prehearing conference. Under no circumstances shall either party inform the hearing officer, or introduce as evidence, a settlement offer that has not been accepted, in whole or in part, by the parents.

B.The parties may at any time prior to, during, or after the due process hearing engage in private settlement discussions.

13.Impartial Due Process Hearing (Applicable to Part C 34 CFR 303.443, as well as Part B)

A. General

Whenever a due process hearing request is received under Sections XV I.5 or XV II.3, the parents or the LEA involved in the dispute must have an opportunity for an impartial due process hearing, consistent with the procedures in Sections XV I.5, XV I.6 through 9, and XV I.11.

B. Agency Responsible for Conducting the Due Process Hearing

The hearing described in paragraph (A) of this section must be conducted by the Department.

C. Impartial Hearing Officer

(1) At a minimum, a hearing officer--

(a)Shall not be--

(i) An employee of the Department or the SAU that is involved in the education or care of the child; or

(ii) A person having a personal or professional interest that conflicts with the person's objectivity in the hearing;

(b)Shall possess knowledge of, and the ability to understand, the provisions of the IDEA, Federal and State regulations pertaining to the IDEA, and legal interpretations of the IDEA by Federal and State courts;

(c)Shall possess the knowledge and ability to conduct hearings in accordance with appropriate, standard legal practice; and

(d)Shall possess the knowledge and ability to render and write decisions in accordance with appropriate, standard legal practice.

(2) A person who otherwise qualifies to conduct a hearing under paragraph (C)(1) of this section is not an employee of the Department solely because he or she is paid by the Department to serve as a hearing officer.

(3)The Department shall keep a list of the persons who serve as hearing officers. The list shall include a statement of the qualifications of each of those persons.

D. Subject Matter of Due Process Hearings

The party requesting the due process hearing may not raise issues at the due process hearing that were not raised in the due process hearing request filed under Section XV I.6.B, unless the other party agrees otherwise.

E. Timeline for Requesting a Hearing

A parent or SAU must request an impartial hearing on their due process hearing request within two years of the date the parent or agency knew or should have known about the alleged action that forms the basis of the due process hearing request.

F. Exceptions to the Timeline

The timeline described in paragraph (E) of this section does not apply to a parent if the parent was prevented from filing a due process hearing request due to--

(1) Specific misrepresentations by the SAU that it had resolved the problem forming the basis of the due process hearing request; or

(2) The SAUs withholding of information from the parent that was required under this part to be provided to the parent. [20 USC 1415(f)(1)(A), 1415(f)(3)(A)-(D) and 34 CFR 300.511]

14.Hearing Rights

A. General. (Applicable to Part C 34CFR 303.444, as well as Part B)

Any party to a hearing conducted pursuant to Sections XV I.5 through XV I.15 or Sections XV II.1 through XV II.5, or an appeal conducted pursuant to Section XV I.16, has the right to--

(1) Be accompanied and advised by counsel and by individuals with special knowledge or training with respect to the problems of children with disabilities;

(2) Present evidence and confront, cross-examine, and compel 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 the option of the parents, electronic, verbatim record of the hearing; and

(5) Obtain written, or, at the option of the parents, electronic findings of fact and decisions.

B. Additional Disclosure of Information

(1) At least five business days prior to a hearing conducted pursuant to Section XV I.13.A, each party must disclose to all other parties all evaluations completed by that date and recommendations based on the offering party's evaluations that the party intends to use at the hearing.

(2) A hearing officer may bar any party that fails to comply with paragraph (B)(1) of this section from introducing the relevant evaluation or recommendation at the hearing without the consent of the other party.

C. Parental Rights at Hearings. Parents involved in hearings must be given the right to--

(1) Have the child who is the subject of the hearing present;

(2) Open the hearing to the public; and

(3) Have the record of the hearing and the findings of fact and decisions described in paragraphs A(4) and A(5) of this section provided at no cost to parents. [20 USC 1415(f)(2), 1415(h) and 34 CFR 300.512]

15.Hearing Decisions

A. Decision of Hearing Officer on the Provision of FAPE or EIS. (Applicable to Part C 34 CFR 303.445, as well as Part B)

(1) Subject to paragraph A(2) of this section, a hearing officer's determination of whether a child received FAPE must be based on substantive grounds.

(2) In matters alleging a procedural violation, a hearing officer may find that a child did not receive a FAPE only if the procedural inadequacies--

(a) Impeded the child's right to a FAPE;

(b) Significantly impeded the parent's opportunity to participate in the decision-making process regarding the provision of a FAPE to the parent's child; or

(c) Caused a deprivation of educational benefit.

(3) Nothing in paragraph (A) of this section shall be construed to preclude a hearing officer from ordering an SAU to comply with procedural requirements under 34 CFR §§ 300.500 through 300.536 or of this rule.

B. Separate Request for a Due Process Hearing

A parent is permitted to file a separate due process hearing request on an issue separate from a due process hearing request already filed.

C. Findings and Decision to Advisory Panel and General Public. The Department, after deleting any personally identifiable information, shall--

(1) Transmit the findings and decisions referred to in Section XV I.A. (5) to the State advisory panel established under 34 CFR § 300.167; and

(2) Make those findings and decisions available to the public. [20 USC 1415(f)(3)(E) and (F), 1415(h)(4), 1415(o) and 34 CFR 300.513]

16.Finality of Decision; Appeal; Impartial Review

A. Finality of Hearing Decision

A decision made in a hearing conducted pursuant to §§ 300.507 through 300.513 or §§ 300.530 through 300.534 Sections XV I.5 through XV I.15 or Sections XVII.1 through XVII.5 is final, except that any party involved in the hearing may appeal the decision under [Section XV.19] (Applicable to Part C 34 CFR 303.446, as well as Part B)

17.Timelines and Convenience of Hearings

A. Not later than 45 days after the expiration of the 30 day period under Section XVI.11.B, or the adjusted time periods described in Section XVI.11.C--

(1) A final decision shall be reached in the hearing; and

(2) A copy of the decision shall be mailed to each of the parties.

B. A hearing officer may grant specific extensions of time beyond the periods set out in paragraphs (A) of this section at the request of either party.

C. Each hearing involving oral arguments must be conducted at a time and place that is reasonably convenient to the parents and child involved. [20 USC 1415(f)(1)(B)(ii), 1415(g), 1415(i)(1) and 34 CFR .300.515] (Applicable to Part C 34 CFR 3003.447, as well as Part B)

18.Attorneys' Fees

A. In general. (Only applies to Part B)

(1) In any action or proceeding brought under Section XVI.5 or XVI.19, the court, in its discretion, may award reasonable attorneys' fees as part of the costs to--

(a) The prevailing party who is the parent of a child with a disability;

(b) To a prevailing party who is the Department or an SAU against the attorney of a parent who files a hearing request or subsequent cause of action that is frivolous, unreasonable, or without foundation, or against the attorney of a parent who continued to litigate after the litigation clearly became frivolous, unreasonable, or without foundation; or

(c) To a prevailing Department or SAU against the attorney of a parent, or against the parent, if the parent's request for a due process hearing or subsequent cause of action was presented for any improper purpose, such as to harass, to cause unnecessary delay, or to needlessly increase the cost of litigation.

B. Prohibition on Use of Funds

(1) Funds under Part B or Part C of the IDEA shall not be used to pay attorneys' fees or costs of a party related to any action or proceeding under section XVI.5 or XVI.19.

(2) Paragraph (B)(1) of this section does not preclude the Department or SAU from using funds under Part B or Part C of the IDEA for conducting an action or proceeding under section XVI.5 or XVI.19.

C. Award of Fees. A court that awards reasonable attorneys' fees under this section shall do so consistent with the following:

(1) Fees awarded under this section must be based on rates prevailing in the community in which the action or proceeding arose for the kind and quality of services furnished. No bonus or multiplier may be used in calculating the fees awarded under this paragraph.

(2)

(a) Attorneys' fees may not be awarded and related costs may not be reimbursed in any action or proceeding under this section for services performed subsequent to the time of a written offer of settlement to a parent if--

(i) The offer is made within the time prescribed by Rule 68 of the Federal Rules of Civil Procedure or, in the case of an administrative proceeding, at any time more than 10 days before the proceeding begins;

(ii) The offer is not accepted within 10 days; and

(iii) The court or administrative hearing officer finds that the relief finally obtained by the parents is not more favorable to the parents than the offer of settlement.

(b) Attorneys' fees may not be awarded relating to any meeting of the IEP Team unless the meeting is convened as a result of an administrative proceeding or judicial action, or for a mediation described in Section XVI.2 or XVI.3.

(c) A meeting conducted pursuant to Section XVI.11 shall not be considered--

(i) A meeting convened as a result of an administrative hearing or judicial action; or

(ii) An administrative hearing or judicial action for purposes of this section.

(3) Notwithstanding paragraph (C)(2) of this section, an award of attorneys' fees and related costs may be made to a parent who is the prevailing party and who was substantially justified in rejecting the settlement offer.

(4) Except as provided in paragraph (C)(5) of this section, the court shall reduce, accordingly, the amount of the attorneys' fees awarded under this section, if the court finds that--

(a) The parent, or the parent's attorney, during the course of the action or proceeding, unreasonably protracted the final resolution of the controversy;

(b) 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 comparable skill, reputation, and experience;

(c) The time spent and legal services furnished were excessive considering the nature of the action or proceeding; or

(d) The attorney representing the parent did not provide to the SAU the appropriate information in the due process request notice in accordance with Section XVI.6.

(5) The provisions of paragraph (C)(4) of this section do not apply in any action or proceeding if the court finds that the Department or SAU unreasonably protracted the final resolution of the action or proceeding or there was a violation of section of the IDEA. [20 USC 1415(i)(3)(B)-(G) and 34 CFR 300.517]

D.Responsibility for Attorneys' Fees

(1)SAU expenses- Personnel expenses incurred by an SAU in the conduct of a hearing shall be considered allowable special education costs. All expenditures (such as fees, honoraria, and per diem expenses) by an SAU to personnel involved in a hearing shall be supported by contractual agreements between these personnel and the SAU. Attorneys' fees and expenses for qualified special education or related services providers may be claimed as special education costs using only local or State funds. Funds under Part B and Part C of the Individuals with Disabilities Education Act may not be used to pay attorneys' fees or costs of a party related to an action or proceeding under the procedural safeguards section of IDEA or Section XVI of this rule.

(2)Private expenses of hearing- Reasonable attorneys' fees incurred by a parent related to a special education hearing shall be the responsibility of the SAU when the parent prevails in the special education hearing and when ordered by a court of appropriate jurisdiction. Attorneys' fees shall be considered an allowable special education expenses using only local or State funds. Funds under Part B and Part C of the Individuals with Disabilities Education Act may not be used to pay attorneys' fees or costs of a party related to an action or proceeding under the procedural safeguards section of IDEA or Section XVI of this rule.

(3)Public expenses of hearing - Impartial hearing officer expenses for due process hearings will be paid directly by the Department.

19.Civil Action

A. General. (Applies to Part C 34 CFR 303.448, as well as Part B)

Any party aggrieved by the findings and decision made under Sections XV I.5 through XV I.15 or Sections XV II.1 through XV II.15 has the right to bring a civil action with respect to the due process hearing request notice requesting a due process hearing under Section XV I.5 or Section XV II.1 through XV II.3. The action may be brought in any State court of competent jurisdiction or in a district court of the United States without regard to the amount in controversy.

B. Time Limitation

The party bringing the action shall have 90 days from the date of the decision of the hearing officer to file a civil action.

C. Additional Requirements

In any action brought under paragraph (A) of this section, the court--

(1) Receives the records of the administrative proceedings;

(2) Hears additional evidence at the request of a party; and

(3) Basing its decision on the preponderance of the evidence, grants the relief that the court determines to be appropriate.

D. Jurisdiction of District Courts

The district courts of the United States have jurisdiction of actions brought under section 615 of the IDEA without regard to the amount in controversy.

E. Rule of Construction

Nothing in this part restricts or limits the rights, procedures, and remedies available under the Constitution, the Americans with Disabilities Act of 1990, title V of the Rehabilitation Act of 1973, 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 the procedural safeguards section of the Act, the procedures under Section XV I.5 and Section XV I.16 must be exhausted to the same extent as would be required had the action been brought under the procedural safeguards section of the IDEA. [20 U.S.C. 1415(i)(2) and (3)(A), 1415(l) and 34 CFR 300.516]

F.If a party appeals a hearing decision, that party must send a copy of that appeal to the Department of Education Due Process Office at the same time as the appeal is filed with the court.

20.Child's Status during Proceedings

A. Except as provided in Section XV II.4, during the pendency of any mediation or state complaint investigation request or administrative or judicial proceeding regarding a due process hearing request notice requesting a due process hearing under Section XV I.5, unless the Department or SAU and the parents of the child agree otherwise, the child involved in the hearing request must remain in his or her current educational placement.

B. If the hearing request involves an application for initial admission to public school, the child, with the consent of the parents, must be placed in the public school until the completion of all the proceedings.

C. If the hearing request involves an application for initial services under this part from a child who is transitioning from Part C of the Act to Part B and 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 had been receiving. If the child is found eligible for special education and related services under Part B and the parent consents to the initial provision of special education and related services under Section V.1.A(4)(a)(ii), then the SAU must provide those special education and related services that are not in dispute between the parent and the public agency.

D. If the hearing officer in a due process hearing agrees with the child's parents that a change of placement is appropriate, that placement must be treated as an agreement between the Department and the parents for purposes of paragraph A of this section. [20 USC 1415(j) and 34 CFR 300.518]

21.Appeal (Only applies to Part B)

A. General. The parent of a child with a disability who disagrees with any decision regarding placement under Sections XV II.1 and XV II.2 or the manifestation determination under Section XV II.E, or an SAU that believes that maintaining the current placement of the child is substantially likely to result in injury to the child or others, may appeal the decision by requesting a hearing. The hearing is requested by filing a complaint pursuant to Sections XV I.5 and XV I.6.A and B. [34 CFR 300.532(a)]

B. Authority of Hearing Officer

(1) A hearing officer under Section XV I.13 shall hear, and make a determination regarding an appeal under paragraph (A) of this section.

(2) In making the determination under paragraph (B)(1) of this section, the hearing officer may

(a) Return the child with a disability to the placement from which the child was removed if the hearing officer determines the removal was a violation of Section XV II.1 or that the child's behavior was a manifestation of the child's disability, or

(b) 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 others.

(3) The procedures under paragraphs (A) and (B)(1) and (2) of this section 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 and to others. [34 CFR 300.532(b)]

C. Expedited Due Process Hearing Procedure

(1) Whenever a hearing is requested under Section XV II.3.A, the parents or the SAU involved in the dispute must have an opportunity for an impartial due process hearing consistent with the requirements of Sections XV I.5 and XVI.6.A through C and Sections XVI.11 through XVI.16, except as provided in paragraph (C)(2) through (4) of this section.

(2) The Department shall arrange for an expedited due process hearing, which shall occur within 20 school days of the date the complaint requesting the hearing is filed. The hearing officer shall make a determination within 10 school days after the hearing.

(3) Unless the parents and SAU agree in writing to waive the resolution meeting described in paragraph (C)(3)(a) of this section, or agree to use the mediation process described in Section XVI.3-

(a) A resolution meeting must occur within seven days of receiving the parent's request for a due process hearing; and

(b) The due process hearing may proceed unless the matter has been resolved to the satisfaction of both parties within 15 days of the receipt of the due process complaint.

(4) Expedited Due Process Hearings shall only be available for persons who have been removed from school for disciplinary purposes and shall:

(a)Meet the hearing procedure described in this section except that the hearing officer may elect to limit the hearing to a single day for presentation of evidence, direct and cross- examination of witnesses, and rebuttal.

(b)The appointment of the hearing officer shall meet the requirements of Section XVI.13.C of this rule, (Impartial Hearing Officer), except that the time periods identified in Section XVI.14 of this rule, (Hearing Rights)for disclosure of evidence shall, for purposes of expedited due process hearings, be not less than five business days.

(5) The decisions on expedited due process hearings are appealable consistent with Section XVI.16. [20 USC 1415(k)(3) and (4)(B), 1415(f)(1)(A) and 34 CFR 300.532(c)]

22.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.

A.Findings of Fact; Final Decision

The hearing officer shall issue the findings of fact and the final decision to all parties within 15 days after the conclusion of the hearing.

B.Transmittal of Record of Hearing

The hearing officer shall forward the complete record of the hearing, the findings of fact, and the final decision to the Due Process Coordinator within 15 days after the conclusion of the hearing. The Department will transmit the findings of fact and decision, after deleting personally identifiable information, to the Maine Advisory Panel on the Education of Children with Disabilities.

C.Appeal

Any party to the hearing may appeal the decision of the hearing officer to the Maine Superior Court or the Federal District Court. Federal law requires that such appeals be brought in Maine Superior Court or Federal District Court within 90 days of the receipt of the decision of the hearing officer. An appeal may be filed in Maine Superior Court for the county in which the student resides or the county in which the administrative unit is located. If a party serves an appeal to court of a hearing decision, that party must send a copy of that appeal to the Department of Education Due Process Office at the same time as the appeal is served to the court.

D.Compliance

The SAU shall submit to the Commissioner, within 45 days of the date the unit receives the final decision, documentation that the unit has complied with the decision or that an appeal is pending.

E.Enforcement

If the SAU refuses to comply with a hearing decision and neither party appeals the decision, the Commissioner shall initiate enforcement action. (20-A MRSA §§6801-A and 7206)

23.Hearing Record

In proceedings subject to this rule, the hearing officer shall make a record consisting of:

A.All papers filed and evidence received or considered;

B.A statement of facts officially noticed;

C.Offers of proof, objections and rulings thereon;

D.Findings of fact; and

E.The final decision.

The Commissioner shall retain the entire record of the hearing.

05-071 C.M.R. ch. 101, § XVI