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34 C.F.R. §§ 300.507–300.513

7 sections in range

§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.