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34 C.F.R. §§ 303.440–303.442

3 sections in range

§303.440. Filing a due process complaint.

34 C.F.R. § 303.440

(a)
General.
(1)
A parent, EIS provider, or a lead agency may file a due process complaint on any of the matters described in § 303.421(a), relating to the identification, evaluation, or placement of a child, or the provision of early intervention services to the infant or toddler with a disability and his or her family under part C of the Act.
(2)
The due process complaint must allege a violation that occurred not more than two years before the date the parent or EIS provider 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 § 303.443(f) apply to the timeline in this section.
(b)
Information for parents. The lead 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 EIS provider files a due process complaint under this section.
(c)
Timeline for Resolution. The lead agency may adopt a 30- or 45-day timeline, subject to § 303.447(a), for the resolution of due process complaints and must specify in its written policies and procedures under § 303.123 and in its prior written notice under § 303.421, the specific timeline it has adopted.
Notes, amendments, and revision history

Authority

Authority: 20 U.S.C. 1431 through 1444, unless otherwise noted.

Source

Source: 76 FR 60244, Sept. 28, 2011, unless otherwise noted.

§303.441. Due process complaint.

34 C.F.R. § 303.441

(a)
General.
(1)
The lead 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 lead agency.
(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 EIS provider serving the child;
(4)
In the case of a homeless child (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 EIS provider serving the child;
(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 in 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 § 303.442; 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 § 303.442(a) and the time period to resolve in § 303.442(b) begin again with the filing of the amended due process complaint.
(e)
Lead agency response to a due process complaint.
(1)
If the lead agency has not sent a prior written notice under § 303.421 to the parent regarding the subject matter contained in the parent's due process complaint, the lead agency or EIS provider must, within 10 days of receiving the due process complaint, send to the parent a response that includes—
(i)
An explanation of why the lead agency or EIS provider proposed or refused to take the action raised in the due process complaint;
(ii)
A description of other options that the IFSP Team considered and the reasons why those options were rejected;
(iii)
A description of each evaluation procedure, assessment, record, or report the lead agency or EIS provider 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 or EIS provider's proposed or refused action.
(2)
A response by the lead agency under paragraph (e)(1) of this section does not preclude the lead agency 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. 1431 through 1444, unless otherwise noted.

Source

Source: 76 FR 60244, Sept. 28, 2011, unless otherwise noted.

§303.442. Resolution process.

34 C.F.R. § 303.442

(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 § 303.443, the lead agency must convene a meeting with the parent and the relevant member or members of the IFSP Team who have specific knowledge of the facts identified in the due process complaint that—
(i)
Includes a representative of the lead agency who has decision-making authority on behalf of that agency; and
(ii)
May not include an attorney of the lead agency unless the parent is accompanied by an attorney.
(2)
The purpose of the resolution 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 lead agency has the opportunity to resolve the dispute that is the basis for the due process complaint.
(3)
The meeting described in paragraphs (a)(1) and (a)(2) of this section need not be held if—
(i)
The parent and lead agency agree in writing to waive the meeting; or
(ii)
The parent and lead agency agree to use the mediation process described in § 303.431.
(4)
The parent and the lead agency must determine the relevant members of the IFSP Team to attend the meeting.
(b)
Resolution period.
(1)
If the lead agency has not resolved the due process complaint to the satisfaction of the parties 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 § 303.447 begins at the expiration of the 30-day period in paragraph (b)(1) of this section.
(3)
Except where the parties have jointly agreed to waive the resolution process or to use mediation, notwithstanding paragraphs (b)(1) and (b)(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 lead agency is unable to obtain the participation of the parent in the resolution meeting after reasonable efforts have been made, including documenting its efforts, the lead agency may, at the conclusion of the 30-day period, request that the hearing officer dismiss the parent's due process complaint.
(5)
If the lead agency 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 30- or 45-day timeline adopted by the lead agency under § 303.440(c) for the due process hearing described in § 303.447(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 lead 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 (a)(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 lead 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 lead agency, if the State has other mechanisms or procedures that permit parties to seek enforcement of resolution agreements pursuant to this section.
(e)
Agreement review period. If the parties execute an agreement pursuant to paragraph (d) of this section, a party may void the agreement within three business days of the agreement's execution.
Notes, amendments, and revision history

Authority

Authority: 20 U.S.C. 1431 through 1444, unless otherwise noted.

Source

Source: 76 FR 60244, Sept. 28, 2011, unless otherwise noted.