Procedural Safeguards

Notice of Procedural Safeguards

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) 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 participate 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.

(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 (see Procedures 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 2 years or the provision of a free appropriate public education for your child age 3 through 20 years. 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:

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 through 20 years; or
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 through 20 years.

Content of notice

The written notice must:

Describe the action regarding the referral, evaluation, identification, programming or placement that your SAU proposes or refuses to take;
Explain why your SAU is proposing or refusing to take the action;
Describe each evaluation procedure, assessment, record, or report your SAU used in deciding to propose or refuse the action;
Include a statement that you have protections under the procedural safeguards provisions in Part B of the IDEA;
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;
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)
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;
Provide a description of other reasons why your SAU proposed or refused the action.
Include a summary of comments made by the parents, including the parents' description of their child's progress; and
Names and titles of each member.

Notice in understandable language

The notice must be:

Written in language understandable to the general public; and
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:

The notice is translated for you orally by other means in your native language or other mode of communication;
You understand the content of the notice; and
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:

The language normally used by that person, or, in the case of a child, the language normally used by the child's parents;

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, you may choose to receive the following by e-mail:

Prior written notice;
Procedural safeguards notice; and
Notices related to a due process hearing request.

Parental Consent - Definition

34 CFR §300.9

Consent

Consent means:

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.
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
You understand that the consent is voluntary on your part and you may withdraw your consent at anytime.

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:

Despite reasonable efforts to do so, the SAU cannot find the child's parent;
The rights of the parents have been terminated in accordance with State law; or
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:

A foster child;
Considered a ward of the State under State law; or
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:

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 through 20 years) for its failure to provide those services to your child; and
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:

It took reasonable steps to obtain your consent for your child's reevaluation; and

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:

Detailed records of telephone calls made or attempted and the results of those calls;
Copies of correspondence sent to the parents and any responses received; and
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:

Review existing data as part of your child's evaluation or a reevaluation; or
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-

300. 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.

301. 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-

302. 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:

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.
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.
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 requestto 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:

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
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;

(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:

A description of the extent to which the notice is given in the native languages of the various population groups in the State;
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;
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
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:

Your right to a response from the participating agency to your reasonable requests for explanations and interpretations of the records;
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
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 Opportunity For a Hearing, 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:

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
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 PartC. 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 through 20 years.) 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:

Resolving any complaint, including a complaint filed by an organization or individual from another State;
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:

The failure to provide appropriate services, including corrective action appropriate to address the needs of the child; and
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:

Carry out an independent on-site investigation, if the State Educational Agency determines that an investigation is necessary;
Give the complainant the opportunity to submit additional information, either orally or in writing, about the allegations in the complaint;
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;
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
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:

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.
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:

A statement that a SAU or other public agency has violated a requirement of Part B of the IDEA or its regulations;
The facts on which the statement is based;
The signature and contact information for the complainant; and
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;

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;
A description of the nature of the problem of the child, including facts relating to the problem;and
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 through 20 years.

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:

The SAU specifically misrepresented that it had resolved the issues identified in the hearing request; or
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.

Content of the hearing request

The due process hearing request must include:

The name of the child;
The address of the child's residence;
The name of the child's school;
If the child is a homeless child or youth, the child's contact information and the name of the child's school;
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
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:

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
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:

An explanation of why the SAU proposed or refused to take the action raised in the due process hearing request;
A description of other options that your child's individualized education program (IEP) Team considered and the reasons why those options were rejected;
A description of each evaluation procedure, assessment, record, or report the SAU used as the basis for the proposed or refused action; and
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:

Is voluntary on your part and the SAU's part;
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
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 y