34 C.F.R. §§ 300.504–300.519

§300.504. Procedural safeguards notice.

34 C.F.R. § 300.504

(a)

General. A copy of the procedural safeguards available to the parents of a child with a disability must be given to the parents 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 under §§ 300.151 through 300.153 and upon receipt of the first due process complaint under § 300.507 in a school year;

(3)

In accordance with the discipline procedures in § 300.530(h); and

(4)

Upon request by a parent.

(b)

Internet Web site. A public agency may place a current copy of the procedural safeguards notice on its Internet Web site if a Web site exists.

(c)

Contents. The procedural safeguards notice must include a full explanation of all of the procedural safeguards available under § 300.148, §§ 300.151 through 300.153, § 300.300, §§ 300.502 through 300.503, §§ 300.505 through 300.518, §§ 300.530 through 300.536 and §§ 300.610 through 300.625 relating to—

(1)

Independent educational evaluations;

(2)

Prior written notice;

(3)

Parental consent;

(4)

Access to education records;

(5)

Opportunity to present and resolve complaints through the due process complaint and State complaint procedures, including—

(i)

The time period in which to file a complaint;

(ii)

The opportunity for the agency to resolve the complaint; and

(iii)

The difference between the due process complaint and the State complaint procedures, including the jurisdiction of each procedure, what issues may be raised, filing and decisional timelines, and relevant procedures;

(6)

The availability of mediation;

(7)

The child's placement during the pendency of any due process complaint;

(8)

Procedures for students who are subject to placement in an interim alternative educational setting;

(9)

Requirements for unilateral placement by parents of children in private schools at public expense;

(10)

Hearings on due process complaints, including requirements for disclosure of evaluation results and recommendations;

(11)

State-level appeals (if applicable in the State);

(12)

Civil actions, including the time period in which to file those actions; and

(13)

Attorneys' fees.

(d)

Notice in understandable language. The notice required under paragraph (a) of this section must meet the requirements of § 300.503(c).

Notes, amendments, and revision history

Amendments

[71 FR 46753, Aug. 14, 2006, as amended at 72 FR 61307, Oct. 30, 2007]

Authority

Authority: 20 U.S.C. 1221e-3, 1406, 1411-1419, and 3474; Pub. L. 111-256, 124 Stat. 2643; unless otherwise noted.

Source

Source: 71 FR 46753, Aug. 14, 2006, unless otherwise noted.

Amendments

[71 FR 46753, Aug. 14, 2006, as amended at 72 FR 61307, Oct. 30, 2007]

§300.505. Electronic mail.

34 C.F.R. § 300.505

A parent of a child with a disability may elect to receive notices required by §§ 300.503, 300.504, and 300.508 by an electronic mail communication, if the public agency makes that option available.

Notes, amendments, and revision history

Authority

Authority: 20 U.S.C. 1221e-3, 1406, 1411-1419, and 3474; Pub. L. 111-256, 124 Stat. 2643; unless otherwise noted.

Source

Source: 71 FR 46753, Aug. 14, 2006, unless otherwise noted.

§300.506. Mediation.

34 C.F.R. § 300.506

(a)

General. Each public agency must ensure that procedures are established and implemented to allow parties to disputes involving any matter under this part, including matters arising prior to the filing of a due process complaint, to resolve disputes through a mediation process.

(b)

Requirements. The procedures must meet the following requirements:

(1)

The procedures must ensure that the mediation process—

(i)

Is voluntary on the part of the parties;

(ii)

Is not used to deny or delay a parent's right to a hearing on the parent's due process complaint, or to deny any other rights afforded under Part B of the Act; and

(iii)

Is conducted by a qualified and impartial mediator who is trained in effective mediation techniques.

(2)

A public agency may establish procedures to offer to parents and schools that choose not to use the mediation process, an opportunity to meet, at a time and location convenient to the parents, with a disinterested party—

(i)

Who is under contract with an appropriate alternative dispute resolution entity, or a parent training and information center or community parent resource center in the State established under section 671 or 672 of the Act; and

(ii)

Who would explain the benefits of, and encourage the use of, the mediation process to the parents.

(3)

(i)

The State must 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.

(ii)

The SEA must select mediators on a random, rotational, or other impartial basis.

(4)

The State must bear the cost of the mediation process, including the costs of meetings described in paragraph (b)(2) of this section.

(5)

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

(6)

If the parties resolve a dispute through the mediation process, the parties must execute a legally binding agreement that sets forth that resolution and that—

(i)

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

(ii)

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

(7)

A written, signed mediation agreement under this paragraph is enforceable in any State court of competent jurisdiction or in a district court of the United States.

(8)

Discussions that occur during the mediation process must 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.

(c)

Impartiality of mediator.

(1)

An individual who serves as a mediator under this part—

(i)

May not be an employee of the SEA or the LEA that is involved in the education or care of the child; and

(ii)

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 an LEA or State agency described under § 300.228 solely because he or she is paid by the agency to serve as a mediator.

Notes, amendments, and revision history

Amendments

[71 FR 46753, Aug. 14, 2006, as amended at 72 FR 61307, Oct. 30, 2007]

Authority

Authority: 20 U.S.C. 1221e-3, 1406, 1411-1419, and 3474; Pub. L. 111-256, 124 Stat. 2643; unless otherwise noted.

Source

Source: 71 FR 46753, Aug. 14, 2006, unless otherwise noted.

Amendments

[71 FR 46753, Aug. 14, 2006, as amended at 72 FR 61307, Oct. 30, 2007]

§300.507. Filing a due process complaint.

34 C.F.R. § 300.507

(a)

General.

(1)

A parent or a public agency may file a due process complaint on any of the matters described in § 300.503(a)(1) and (2) (relating to the identification, evaluation or educational placement of a child with a disability, or the provision of FAPE to the child).

(2)

The due process complaint must allege a violation that occurred not more than two years before the date the parent or public agency knew or should have known about the alleged action that forms the basis of the due process complaint, or, if the State has an explicit time limitation for filing a due process complaint under this part, in the time allowed by that State law, except that the exceptions to the timeline described in § 300.511(f) apply to the timeline in this section.

(b)

Information for parents. The public agency must 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 the agency files a due process complaint under this section.

Notes, amendments, and revision history

Authority

Authority: 20 U.S.C. 1221e-3, 1406, 1411-1419, and 3474; Pub. L. 111-256, 124 Stat. 2643; unless otherwise noted.

Source

Source: 71 FR 46753, Aug. 14, 2006, unless otherwise noted.

§300.508. Due process complaint.

34 C.F.R. § 300.508

(a)

General.

(1)

The public agency must have procedures that require either party, or the attorney representing a party, to provide to the other party a due process complaint (which must remain confidential).

(2)

The party filing a due process complaint must forward a copy of the due process complaint to the SEA.

(b)

Content of complaint. The due process complaint required in paragraph (a)(1) of this section 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 of 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 complaint. A party may not have a hearing on a due process complaint until the party, or the attorney representing the party, files a due process complaint that meets the requirements of paragraph (b) of this section.

(d)

Sufficiency of complaint.

(1)

The due process complaint required by this section must be deemed sufficient unless the party receiving the due process complaint notifies the hearing officer and the other party in writing, within 15 days of receipt of the due process complaint, that the receiving party believes the due process complaint 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 complaint of whether the due process complaint 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 complaint only if—

(i)

The other party consents in writing to the amendment and is given the opportunity to resolve the due process complaint through a meeting held pursuant to § 300.510; or

(ii)

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 complaint, the timelines for the resolution meeting in § 300.510(a) and the time period to resolve in § 300.510(b) begin again with the filing of the amended due process complaint.

(e)

LEA response to a due process complaint.

(1)

If the LEA has not sent a prior written notice under § 300.503 to the parent regarding the subject matter contained in the parent's due process complaint, the LEA must, within 10 days of receiving the due process complaint, send to the parent a response that includes—

(i)

An explanation of why the agency proposed or refused to take the action raised in the due process complaint;

(ii)

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

(iii)

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

(iv)

A description of the other factors that are relevant to the agency's proposed or refused action.

(2)

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

(f)

Other party response to a due process complaint. Except as provided in paragraph (e) of this section, the party receiving a due process complaint must, within 10 days of receiving the due process complaint, send to the other party a response that specifically addresses the issues raised in the due process complaint.

Notes, amendments, and revision history

Authority

Authority: 20 U.S.C. 1221e-3, 1406, 1411-1419, and 3474; Pub. L. 111-256, 124 Stat. 2643; unless otherwise noted.

Source

Source: 71 FR 46753, Aug. 14, 2006, unless otherwise noted.

§300.509. Model forms.

34 C.F.R. § 300.509

(a)

Each SEA must develop model forms to assist parents and public agencies in filing a due process complaint in accordance with §§ 300.507(a) and 300.508(a) through (c) and to assist parents and other parties in filing a State complaint under §§ 300.151 through 300.153. However, the SEA or LEA may not require the use of the model forms.

(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 § 300.508(b) for filing a due process complaint, or the requirements in § 300.153(b) for filing a State complaint.

Notes, amendments, and revision history

Authority

Authority: 20 U.S.C. 1221e-3, 1406, 1411-1419, and 3474; Pub. L. 111-256, 124 Stat. 2643; unless otherwise noted.

Source

Source: 71 FR 46753, Aug. 14, 2006, unless otherwise noted.

§300.510. Resolution process.

34 C.F.R. § 300.510

(a)

Resolution meeting.

(1)

Within 15 days of receiving notice of the parent's due process complaint, and prior to the initiation of a due process hearing under § 300.511, the LEA 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 complaint that—

(i)

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

(ii)

May not include an attorney of the LEA 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 complaint, and the facts that form the basis of the due process complaint, so that the LEA has the opportunity to resolve the dispute that is the basis for the due process complaint.

(3)

The meeting described in paragraph (a)(1) and (2) of this section need not be held if—

(i)

The parent and the LEA agree in writing to waive the meeting; or

(ii)

The parent and the LEA agree to use the mediation process described in § 300.506.

(4)

The parent and the LEA determine the relevant members of the IEP Team to attend the meeting.

(b)

Resolution period.

(1)

If the LEA has not resolved the due process complaint to the satisfaction of the parent within 30 days of the receipt of the due process complaint, the due process hearing may occur.

(2)

Except as provided in paragraph (c) of this section, the timeline for issuing a final decision under § 300.515 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 complaint 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 LEA 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 § 300.322(d)), the LEA may, at the conclusion of the 30-day period, request that a hearing officer dismiss the parent's due process complaint.

(5)

If the LEA 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 complaint 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 § 300.515(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 agency 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 SEA, if the State has other mechanisms or procedures that permit parties to seek enforcement of resolution agreements, pursuant to § 300.537.

(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.

Notes, amendments, and revision history

Amendments

[71 FR 46753, Aug. 14, 2006, as amended at 72 FR 61307, Oct. 30, 2007]

Authority

Authority: 20 U.S.C. 1221e-3, 1406, 1411-1419, and 3474; Pub. L. 111-256, 124 Stat. 2643; unless otherwise noted.

Source

Source: 71 FR 46753, Aug. 14, 2006, unless otherwise noted.

Amendments

[71 FR 46753, Aug. 14, 2006, as amended at 72 FR 61307, Oct. 30, 2007]

§300.511. Impartial due process hearing.

34 C.F.R. § 300.511

(a)

General. Whenever a due process complaint is received under § 300.507 or § 300.532, the parents or the LEA involved in the dispute must have an opportunity for an impartial due process hearing, consistent with the procedures in §§ 300.507, 300.508, and 300.510.

(b)

Agency responsible for conducting the due process hearing. The hearing described in paragraph (a) of this section must be conducted by the SEA or the public agency directly responsible for the education of the child, as determined under State statute, State regulation, or a written policy of the SEA.

(c)

Impartial hearing officer.

(1)

At a minimum, a hearing officer—

(i)

Must not be—

(A)

An employee of the SEA or the LEA that is involved in the education or care of the child; or

(B)

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

(ii)

Must possess knowledge of, and the ability to understand, the provisions of the Act, Federal and State regulations pertaining to the Act, and legal interpretations of the Act by Federal and State courts;

(iii)

Must possess the knowledge and ability to conduct hearings in accordance with appropriate, standard legal practice; and

(iv)

Must 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 agency solely because he or she is paid by the agency to serve as a hearing officer.

(3)

Each public agency must keep a list of the persons who serve as hearing officers. The list must 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 complaint filed under § 300.508(b), unless the other party agrees otherwise.

(e)

Timeline for requesting a hearing. A parent or agency must request an impartial hearing on their due process complaint 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 complaint, or if the State has an explicit time limitation for requesting such a due process hearing under this part, in the time allowed by that State law.

(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 complaint due to—

(1)

Specific misrepresentations by the LEA that it had resolved the problem forming the basis of the due process complaint; or

(2)

The LEA's withholding of information from the parent that was required under this part to be provided to the parent.

Notes, amendments, and revision history

Authority

Authority: 20 U.S.C. 1221e-3, 1406, 1411-1419, and 3474; Pub. L. 111-256, 124 Stat. 2643; unless otherwise noted.

Source

Source: 71 FR 46753, Aug. 14, 2006, unless otherwise noted.

§300.512. Hearing rights.

34 C.F.R. § 300.512

(a)

General. Any party to a hearing conducted pursuant to §§ 300.507 through 300.513 or §§ 300.530 through 300.534, or an appeal conducted pursuant to § 300.514, 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, except that whether parties have the right to be represented by non-attorneys at due process hearings is determined under State law;

(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 § 300.511(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.

Notes, amendments, and revision history

Amendments

[71 FR 46753, Aug. 14, 2006, as amended at 73 FR 73027, Dec. 1, 2008]

Authority

Authority: 20 U.S.C. 1221e-3, 1406, 1411-1419, and 3474; Pub. L. 111-256, 124 Stat. 2643; unless otherwise noted.

Source

Source: 71 FR 46753, Aug. 14, 2006, unless otherwise noted.

Amendments

[71 FR 46753, Aug. 14, 2006, as amended at 73 FR 73027, Dec. 1, 2008]

§300.513. Hearing decisions.

34 C.F.R. § 300.513

(a)

Decision of hearing officer on the provision of FAPE.

(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—

(i)

Impeded the child's right to a FAPE;

(ii)

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

(iii)

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 LEA to comply with procedural requirements under §§ 300.500 through 300.536.

(b)

Construction clause. Nothing in §§ 300.507 through 300.513 shall be construed to affect the right of a parent to file an appeal of the due process hearing decision with the SEA under § 300.514(b), if a State level appeal is available.

(c)

Separate request for a due process hearing. Nothing in §§ 300.500 through 300.536 shall be construed to preclude a parent from filing a separate due process complaint on an issue separate from a due process complaint already filed.

(d)

Findings and decision to advisory panel and general public. The public agency, after deleting any personally identifiable information, must—

(1)

Transmit the findings and decisions referred to in § 300.512(a)(5) to the State advisory panel established under § 300.167; and

(2)

Make those findings and decisions available to the public.

Notes, amendments, and revision history

Authority

Authority: 20 U.S.C. 1221e-3, 1406, 1411-1419, and 3474; Pub. L. 111-256, 124 Stat. 2643; unless otherwise noted.

Source

Source: 71 FR 46753, Aug. 14, 2006, unless otherwise noted.

§300.514. Finality of decision; appeal; impartial review.

34 C.F.R. § 300.514

(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 is final, except that any party involved in the hearing may appeal the decision under the provisions of paragraph (b) of this section and § 300.516.

(b)

Appeal of decisions; impartial review.

(1)

If the hearing required by § 300.511 is conducted by a public agency other than the SEA, any party aggrieved by the findings and decision in the hearing may appeal to the SEA.

(2)

If there is an appeal, the SEA must conduct an impartial review of the findings and decision appealed. The official conducting the review must—

(i)

Examine the entire hearing record;

(ii)

Ensure that the procedures at the hearing were consistent with the requirements of due process;

(iii)

Seek additional evidence if necessary. If a hearing is held to receive additional evidence, the rights in § 300.512 apply;

(iv)

Afford the parties an opportunity for oral or written argument, or both, at the discretion of the reviewing official;

(v)

Make an independent decision on completion of the review; and

(vi)

Give a copy of the written, or, at the option of the parents, electronic findings of fact and decisions to the parties.

(c)

Findings and decision to advisory panel and general public. The SEA, after deleting any personally identifiable information, must—

(1)

Transmit the findings and decisions referred to in paragraph (b)(2)(vi) of this section to the State advisory panel established under § 300.167; and

(2)

Make those findings and decisions available to the public.

(d)

Finality of review decision. The decision made by the reviewing official is final unless a party brings a civil action under § 300.516.

Notes, amendments, and revision history

Authority

Authority: 20 U.S.C. 1221e-3, 1406, 1411-1419, and 3474; Pub. L. 111-256, 124 Stat. 2643; unless otherwise noted.

Source

Source: 71 FR 46753, Aug. 14, 2006, unless otherwise noted.

§300.515. Timelines and convenience of hearings and reviews.

34 C.F.R. § 300.515

(a)

The public agency must ensure that not later than 45 days after the expiration of the 30 day period under § 300.510(b), or the adjusted time periods described in § 300.510(c)—

(1)

A final decision is reached in the hearing; and

(2)

A copy of the decision is mailed to each of the parties.

(b)

The SEA must ensure that not later than 30 days after the receipt of a request for a review—

(1)

A final decision is reached in the review; and

(2)

A copy of the decision is mailed to each of the parties.

(c)

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

(d)

Each hearing and each review involving oral arguments must be conducted at a time and place that is reasonably convenient to the parents and child involved.

Notes, amendments, and revision history

Authority

Authority: 20 U.S.C. 1221e-3, 1406, 1411-1419, and 3474; Pub. L. 111-256, 124 Stat. 2643; unless otherwise noted.

Source

Source: 71 FR 46753, Aug. 14, 2006, unless otherwise noted.

§300.516. Civil action.

34 C.F.R. § 300.516

(a)

General. Any party aggrieved by the findings and decision made under §§ 300.507 through 300.513 or §§ 300.530 through 300.534 who does not have the right to an appeal under § 300.514(b), and any party aggrieved by the findings and decision under § 300.514(b), has the right to bring a civil action with respect to the due process complaint notice requesting a due process hearing under § 300.507 or §§ 300.530 through 300.532. 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 or, if applicable, the decision of the State review official, to file a civil action, or, if the State has an explicit time limitation for bringing civil actions under Part B of the Act, in the time allowed by that State law.

(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 Act 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 section 615 of the Act, the procedures under §§ 300.507 and 300.514 must be exhausted to the same extent as would be required had the action been brought under section 615 of the Act.

Notes, amendments, and revision history

Authority

Authority: 20 U.S.C. 1221e-3, 1406, 1411-1419, and 3474; Pub. L. 111-256, 124 Stat. 2643; unless otherwise noted.

Source

Source: 71 FR 46753, Aug. 14, 2006, unless otherwise noted.

§300.517. Attorneys' fees.

34 C.F.R. § 300.517

(a)

In general.

(1)

In any action or proceeding brought under section 615 of the Act, the court, in its discretion, may award reasonable attorneys' fees as part of the costs to—

(i)

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

(ii)

To a prevailing party who is an SEA or LEA against the attorney of a parent who files a complaint 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

(iii)

To a prevailing SEA or LEA 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.

(2)

Nothing in this subsection shall be construed to affect section 327 of the District of Columbia Appropriations Act, 2005.

(b)

Prohibition on use of funds.

(1)

Funds under Part B of the Act may not be used to pay attorneys' fees or costs of a party related to any action or proceeding under section 615 of the Act and subpart E of this part.

(2)

Paragraph (b)(1) of this section does not preclude a public agency from using funds under Part B of the Act for conducting an action or proceeding under section 615 of the Act.

(c)

Award of fees. A court awards reasonable attorneys' fees under section 615(i)(3) of the Act consistent with the following:

(1)

Fees awarded under section 615(i)(3) of the Act 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)

(i)

Attorneys' fees may not be awarded and related costs may not be reimbursed in any action or proceeding under section 615 of the Act for services performed subsequent to the time of a written offer of settlement to a parent if—

(A)

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

(B)

The offer is not accepted within 10 days; and

(C)

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.

(ii)

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 at the discretion of the State, for a mediation described in § 300.506.

(iii)

A meeting conducted pursuant to § 300.510 shall not be considered—

(A)

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

(B)

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 reduces, accordingly, the amount of the attorneys' fees awarded under section 615 of the Act, if the court finds that—

(i)

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

(ii)

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;

(iii)

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

(iv)

The attorney representing the parent did not provide to the LEA the appropriate information in the due process request notice in accordance with § 300.508.

(5)

The provisions of paragraph (c)(4) of this section do not apply in any action or proceeding if the court finds that the State or local agency unreasonably protracted the final resolution of the action or proceeding or there was a violation of section 615 of the Act.

Notes, amendments, and revision history

Authority

Authority: 20 U.S.C. 1221e-3, 1406, 1411-1419, and 3474; Pub. L. 111-256, 124 Stat. 2643; unless otherwise noted.

Source

Source: 71 FR 46753, Aug. 14, 2006, unless otherwise noted.

§300.518. Child's status during proceedings.

34 C.F.R. § 300.518

(a)

Except as provided in § 300.533, during the pendency of any administrative or judicial proceeding regarding a due process complaint notice requesting a due process hearing under § 300.507, unless the State or local agency and the parents of the child agree otherwise, the child involved in the complaint must remain in his or her current educational placement.

(b)

If the complaint 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 complaint 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 public agency 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 § 300.300(b), then the public agency 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 conducted by the SEA or a State review official in an administrative appeal agrees with the child's parents that a change of placement is appropriate, that placement must be treated as an agreement between the State and the parents for purposes of paragraph (a) of this section.

Notes, amendments, and revision history

Authority

Authority: 20 U.S.C. 1221e-3, 1406, 1411-1419, and 3474; Pub. L. 111-256, 124 Stat. 2643; unless otherwise noted.

Source

Source: 71 FR 46753, Aug. 14, 2006, unless otherwise noted.

§300.519. Surrogate parents.

34 C.F.R. § 300.519

(a)

General. Each public agency must ensure that the rights of a child are protected when—

(1)

No parent (as defined in § 300.30) can be identified;

(2)

The public agency, after reasonable efforts, cannot locate a parent;

(3)

The child is a ward of the State under the laws of that State; or

(4)

The child is an unaccompanied homeless youth as defined in section 725(6) of the McKinney-Vento Homeless Assistance Act (42 U.S.C. 11434a(6)).

(b)

Duties of public agency. The duties of a public agency under paragraph (a) of this section include the assignment of an individual to act as a surrogate for the parents. This must include a method—

(1)

For determining whether a child needs a surrogate parent; and

(2)

For assigning a surrogate parent to the child.

(c)

Wards of the State. In the case of a child who is a ward of the State, the surrogate parent alternatively may be appointed by the judge overseeing the child's case, provided that the surrogate meets the requirements in paragraphs (d)(2)(i) and (e) of this section.

(d)

Criteria for selection of surrogate parents.

(1)

The public agency may select a surrogate parent in any way permitted under State law.

(2)

Public agencies must ensure that a person selected as a surrogate parent—

(i)

Is not an employee of the SEA, the LEA, or any other agency that is involved in the education or care of the child;

(ii)

Has no personal or professional interest that conflicts with the interest of the child the surrogate parent represents; and

(iii)

Has knowledge and skills that ensure adequate representation of the child.

(e)

Non-employee requirement; compensation. A person otherwise qualified to be a surrogate parent under paragraph (d) of this section is not an employee of the agency solely because he or she is paid by the agency to serve as a surrogate parent.

(f)

Unaccompanied homeless youth. In the case of a child who is an unaccompanied homeless youth, appropriate staff of emergency shelters, transitional shelters, independent living programs, and street outreach programs may be appointed as temporary surrogate parents without regard to paragraph (d)(2)(i) of this section, until a surrogate parent can be appointed that meets all of the requirements of paragraph (d) of this section.

(g)

Surrogate parent responsibilities. The surrogate parent may represent the child in all matters relating to—

(1)

The identification, evaluation, and educational placement of the child; and

(2)

The provision of FAPE to the child.

(h)

SEA responsibility. The SEA must make reasonable efforts to ensure the assignment of a surrogate parent not more than 30 days after a public agency determines that the child needs a surrogate parent.

Notes, amendments, and revision history

Authority

Authority: 20 U.S.C. 1221e-3, 1406, 1411-1419, and 3474; Pub. L. 111-256, 124 Stat. 2643; unless otherwise noted.

Source

Source: 71 FR 46753, Aug. 14, 2006, unless otherwise noted.