Current through 2025-13, March 26, 2025
1.
Right to Dispute Resolution,
Generally
A.
For
children B-2(1)
Any parent
or interested party, including early intervention providers, and including an
organization or individual from another state, may submit a written request for
a state complaint to the Department alleging that a regional site has failed to
comply with State or federal special education law or regulation, or when there
is a dispute regarding the identification, evaluation, placement or provision
of appropriate services to a child.(2)
A parent or SAU may submit a
request for mediation to the Department to resolve a dispute regarding a
regional site's compliance with this rule or provision of services in the
natural environment to a child with a disability.(3)
A parent or SAU may submit a
written request for a due process hearing to the Department when there is a
dispute regarding the identification, evaluation, placement or the provision of
appropriate services to the child.B.
For Children 3-22
(1)
Any parent, adult student or
interested party may submit a written complaint to the Department alleging that
a public agency has failed to comply with this rule, or when there is a dispute
regarding the identification, evaluation, placement or the provision of
appropriate services to a child.(2)
A parent, adult student, or SAU
may submit a written request to the Department for mediation to resolve a
dispute regarding a unit's compliance with this rule or the provision of a free
appropriate public education in the least restrictive educational alternative
to a child with a disability.(3)
A parent, adult student or SAU
may submit a written request for a due process hearing to the Department, after
having submitted the written request first to the responding party, when there
is a disagreement regarding the identification, evaluation, placement or the
provision of a free appropriate public education to a
child.2.
Stand-alone
Mediation
A.
Request(1)
Request
by Parent or Adult Student - A parent, an adult student, the designated
representative of the parent, surrogate parent or adult student, who requests a
stand-alone mediation shall notify, in writing, the School Administrative Unit
(SAU) and the Due Process Coordinator in the Department of Education of the
request for a stand-alone mediation. A stand-alone mediation is a mediation
that is not associated with a state complaint, a hearing, or an expedited
hearing.
(a)
The request
shall:
(i)
Include the name
of the child involved, the parent's name, address and telephone number, the
school administrative unit which the child attends, a brief summary of the
disagreement and any facts relating to the disagreement;(ii)
Include a summary of how the SAU
was informed of the disagreement, any actions taken by the SAU to resolve the
problem and how the problem could be resolved; and(iii)
Be in writing. An oral request
shall be reduced to writing by the superintendent or a designee of the SAU and
signed by the parent or adult students.(2)
Request by SAU - If the SAU seeks
a stand-alone mediation, the superintendent shall send the notice to the parent
or adult student prior to forwarding the request to the Due Process
Coordinator.(a)
The notice
to the parent and the request to the Due Process Coordinator shall:
(i)
Include the name of the child
involved, the parent's name, address and telephone number, the school
administrative unit which the child attends, a brief summary of the
disagreement and any facts relating to the disagreement;(ii)
Include a summary of how the
parent was informed of the disagreement, any actions taken by the SAU to
resolve the problem and how the problem could be resolved;
and(3)
Duties of the Department-
Upon receipt of the request for a stand- alone mediation, the
Due Process Coordinator shall provide the parents with information pertaining
to the availability of free or low-cost legal aid and other related
services.(4)
Requirements - See Section
XV I(3) (B)and (C) of this
rule.B.
State Enforcement Mechanisms. For enforcement of a mediation agreement,
the Department shall provide to parents and adult students the State complaint
investigation procedure. The State complaint investigation procedure is not
mandatory and will not delay or deny a party the right to seek enforcement of
the written mediation agreement in a State court of competent jurisdiction or
in a district court of the United States. [34 CFR 300.537
provides the State the option of enforcement.]3.
Mediation Associated with a Request
for a Due Process Hearing
A. General
If either a parent, adult student or an SAU seeks a
due process hearing, the superintendent shall encourage the parents to resolve
the disagreement through a resolution session or mediation or other third-
party assistance. Such attempts shall not interfere with the parent's or adult
student's right to a due process hearing or with the hearing
timeline.
B.
Requirements. [34 CFR
300.506,
303.431]
(1)
Mediation under this section
shall:
(a)
Be
voluntary on the part of the parties;
(b) Not
be used to deny or
delay a parent's right to a hearing on the parent's due process hearing
request, or to deny any other rights afforded under Part B of the Act;
and
(c)
Be
conducted by a qualified and impartial mediator who is trained in effective
mediation techniques.
(2)
(a) The
Department shall
maintain a list of individuals who are qualified mediators and knowledgeable in
laws and regulations relating to the provision of special education and related
services.
(b) The
Department shall select mediators on a random, rotational, or
other impartial basis.
(3) The
Department shall
bear the cost of the mediation process.
(4) Each session in the mediation process
shall be scheduled in a timely manner and
shall be held in a location that is convenient to the parties
to the dispute.
(5) If the parties
resolve a dispute through the mediation process, the parties
shall execute a legally binding agreement that sets forth that
resolution and that-
(a) States that all
discussions that occurred during the mediation process will remain confidential
and may not be used as evidence in any subsequent due process hearing or civil
proceeding; and
(b) Is signed by
both the parent and a representative of the
SAU who has the
authority to bind such agency.
(6) A written, signed mediation agreement
under this paragraph
shall be enforceable in any State court
of competent jurisdiction or in a district court of the United States.
Discussions that occur during the mediation process
shall be
confidential and may not be used as evidence in any subsequent due process
hearing or civil proceeding of any Federal court or State court of a State
receiving assistance under this part.
(7)
Parents may be accompanied to the
mediation by an advocate or other person knowledgeable in providing special
education services. School personnel with authorization to commit resources and
personnel involved with the dispute shall attend any mediation. School
administrative units may be represented by counsel in a mediation only when the
parents are represented by counsel. The SAU may be accompanied at mediation by
a non-attorney advocate or consultant only when the parent is similarly
accompanied by an individual who has been engaged to perform special education
advocacy or consultancy, or else is represented at the mediation by an
attorney. An attorney representing a parent shall provide the superintendent of
the school administrative unit and the Due Process Office of the Maine
Department of Education with at least 7 days written notice prior to the
mediation that they will be representing the parent at the mediation. Parties
may consult with their attorneys prior to and after engaging in mediation. Both
parties may agree in writing to waive the 7-day written notice of the parent's
attorney's planned attendance at the mediation.(8)
State enforcement mechanisms. For
enforcement of a mediation agreement, the Department shall provide to parents
and adult students the State complaint investigation procedure. The State
complaint investigation procedure is not mandatory and will not delay or deny a
party the right to seek enforcement of the written mediation agreement in a
State court of competent jurisdiction or in a district court of the United
States. [34 CFR
300.537 provides the State the option of
enforcement.]C.
Impartiality of Mediator.
(1) An individual
who serves as a mediator under this part:
(a)
May not be an employee of the
Department or the
SEA or
an early intervention services provider (34 CFR
303.431(c)) that is
involved in the education or care of the child; and
(b) Must not have a personal or professional
interest that conflicts with the person's objectivity.
(2) A person who otherwise qualifies as a
mediator is not an employee of
the Department solely because
he or she is paid by the
Department to serve as a mediator.
[34 CFR
300.506(c)]
4.
Complaints
A. Minimum State
Complaint Procedures. [34
CFR 300.153]
(1)
Within 60 days after a
complaint is filed under
this section the Department shall:
(a) Carry out an independent on-site
investigation, if
it determines that an investigation is
necessary;
(b) Give the complainant
the opportunity to submit additional information, either orally or in writing,
about the allegations in the complaint;
(c) Provide the
SAU with the
opportunity to respond to the complaint, including, at the discretion of the
SAU, a proposal to resolve the complaint;
(d) Provide an opportunity for a parent who
has filed a complaint (
or individual or organization who has filed a
complaint, with the authorization of the parent) and the SAU to
voluntarily engage in mediation consistent with
Section
XV I.2 of this Chapter and 34
CFR
§300.506;
(e)
Review all relevant information and make an independent determination as to
whether the
SAU is violating a requirement of Part B
or Part C of the Act or of this
chapter;
and
(f) Issue a written decision to
the complainant that addresses each allegation in the complaint and contains--
(i) Findings of fact and conclusions;
and
(ii) The reasons for the
Department 's final decision.
(2)
The time limit described in
paragraph (1) of this section may be extended only if:
(a) Exceptional circumstances exist with
respect to a particular complaint; or
(b) The parent (or individual or
organization,
with authorization of the parent) and the
SAU agree to extend the time to engage in mediation pursuant
to paragraph (1) (d) of this section: and
(3)
Provide procedures for
effective implementation of the
Department's final decision:
shall include:(a) Technical
assistance activities;
(c) Corrective
actions to achieve compliance.
(4)
(a) If
a written complaint is received that is also the subject of a due process
hearing under
Section XIV.5 of this chapter [§300.507 or
§§ 300.530 through 300.532], or contains multiple issues of which one
or more are part of that hearing, the
Department shall set
aside any part of the complaint that is being addressed in the due process
hearing until the conclusion of the hearing. However, any issue in the
complaint that is not a part of the due process action
shall
be resolved using the time limit and procedures described in paragraphs (a) and
(b) of this section.
(b) If an
issue raised in a complaint filed under this section has previously been
decided in a due process hearing involving the same parties--
(i) The due process hearing decision is
binding on that issue; and
(ii) The
Department shall inform the complainant to that
effect.
(c) A complaint
alleging a
SAU's failure to implement a due process hearing
decision
shall be resolved by the
Department
[20 U.S.C.
1221e-3 and
34 CFR
300.152]
B. Filing a Complaint
(1) An organization or individual may file a
signed written complaint under the procedures described in
paragraph
(A) of this section.(2)
The complaint must include:
(a) A statement
that a public agency
, SAU has violated a requirement of Part B
or Part C of the Act or of this
chapter;
(b) The facts on which the statement is
based;
(c) The signature and
contact information for the complainant; and
(d) If alleging violations with respect to a
specific child --
(i) The name and address of
the residence of the child;
(ii)
The name of the school or the early intervention services provider the child is
attending;
(iii) In the case of a
homeless child or youth (within the meaning of section 725(2) of the
McKinney-Vento Homeless Assistance Act (42 U.S.C.
11434a(2)), available
contact information for the child, and the name of the school the child is
attending;
(iv) A description of
the nature of the problem of the child, including facts relating to the
problem; and
(v) A proposed
resolution of the problem to the extent known and available to the party at the
time the complaint is filed.
(3) The complaint must allege a violation
that occurred not more than one year prior to the date that the complaint is
received in accordance with
paragraph (1) of this section
[§300.151]
unless a longer period is reasonable because the
complainant is requesting compensatory services for a violation that allegedly
occurred not more than two years prior to the date that the written complaint
is received by the Department.(4) The party filing the complaint must
forward a copy of the complaint to the SAU serving the child at the same time
the party files the complaint with the
Department.
[20 USC
1221e-3 and
34 CFR
300.153]
5.
Filing a Due Process Hearing
Request
A. General
(1) A parent, adult student, or a
SAU may file a due process Hearing request on any matters
(relating to a proposal to initiate or change the identification, evaluation,
placement or the provision of appropriate services to a child B-2 or the
educational placement of, or the provision of FAPE to the child three to
twenty-two). [includes 34
CFR 303.440(a)(1)]
(2) The due process hearing
request must allege a violation that occurred not more than two years before
the date the parent or
SAU knew or should have known about the
alleged action that forms the basis of the due process hearing
request.
B. Information
for Parents
The Department shall inform the parent of
any free or low-cost legal and other relevant services available in the area
if:
(1) The parent requests the
information; or
(2) The parent or
SAU files a due process hearing request under this section.
[Authority: 20 U.S.C.
1415(b)(6) and
34 CFR
300.507]
6.
Due Process Hearing
Request. [34 CFR
300.508,
303.431]
A. General.
(1) The party
filing a due process
hearing request, or the attorney representing a party,
must provide to the other party
the due
process hearing request (which
shall remain
confidential).
(2) The party filing
a due process hearing request must forward a copy of the due process hearing
request to the
Department.B. Content of
Hearing
Request.
The due process hearing request must include:
(1) The name of the child;
(2) The address of the residence of the
child;
(3) The name of the school
the child is attending;
(4) In the
case of a homeless child or youth (within the meaning of section 725(2) of the
McKinney-Vento Homeless Assistance Act (42 U.S.C.
11434a(2)), available
contact information for the child, and the name of the school the child is
attending;
(5) A description of the
nature of the problem
concerning the child relating to the
proposed or refused initiation or change, including facts relating to the
problem; and
(6) A proposed
resolution of the problem to the extent known and available to the party at the
time.
C. Notice Required
Before a Hearing on a Due Process
Hearing Request
A party may not have a hearing on a due process hearing
request until the party, or the attorney representing the party, files a due
process hearing request that meets the requirements of paragraph (B) of this
section.
D. Sufficiency of
Hearing Request(1) The due
process hearing request required by this section must be deemed sufficient
unless the party receiving the due process
hearing request
notifies the hearing officer and the other party in writing, within 15 days of
receipt of the due process hearing request, that the receiving party believes
the due process hearing request does not meet the requirements in paragraph (B)
of this section.
(2) Within five
days of receipt of notification under paragraph (D)(1) of this section, the
hearing officer must make a determination on the face of the due process
hearing request of whether the due process
hearing
request meets the requirements of paragraph (B) of this section, and
must immediately notify the parties in writing of that determination.
(3) A party may amend its due process
hearing request only if:
(a)
The other party consents in writing to the amendment and is given the
opportunity to resolve the due process hearing request through a
resolution meeting held pursuant to
Section
XV I.11 of this chapter;
or
(b) The hearing officer grants
permission, except that the hearing officer may only grant permission to amend
at any time not later than five days before the due process hearing
begins.
(4) If a party
files an amended due process hearing request, the timelines for the resolution
meeting in
Section
XV I.11.A of this chapter
and the time period to resolve in
Section
XV I.11.B of this chapter
begin again with the filing of the amended due process
hearing
request.
E. SAU
Response to a Due Process
Hearing Request.
(1) If the SAU has not sent a prior written
notice under 34 CFR§
300.503 to the parent regarding the subject
matter contained in the parent's due process
hearing request,
the
SEA must, within 10 days of receiving the due process
hearing request, send to the parent a response that includes:
(a) An explanation of why the
SAU proposed or refused to take the action raised in the due
process
hearing request;(b) A description of other options that the
IEP Team considered and the reasons why those options were rejected;
(c) A description of each evaluation
procedure, assessment, record, or report the
SAU used as the
basis for the proposed or refused action; and
(d) A description of the other factors that
are relevant to the SAU's proposed or refused action.
(2) A response by an SAU under paragraph
(E)(1) of this section shall not be construed to preclude the SAU from
asserting that the parent's due process
hearing request was
insufficient, where appropriate.
F. Other Party Response to a Due Process
Hearing Request.
Except as provided in paragraph (E) of this section, the
party receiving a due process hearing request must, within 10
days of receiving the due process hearing request, send to the other party a
response that specifically addresses the issues raised in the due process
hearing request. [34 CFR 300.508]
G.
Pre-hearing Conference
The hearing officer shall convene a pre-hearing
conference to consider the simplification or clarification of issues, the
limitation of the number of witnesses, the possibility of agreement disposing
of all or any of the issues in dispute, and such other matters as may aid in
the disposition of the adjudicatory proceeding.
7.
Subpoenas
A.
Issuance of subpoena
The Commissioner may issue subpoenas in the name of
the Department to require the attendance and testimony of any witness and the
production of any evidence relating to any issue or fact in the due process
hearing upon the request of either party to the hearing.
B.
Fees, Expenses
Any fees for attendance and travel required by the
witnesses shall be the responsibility of the party seeking the
subpoena.
Issuance of subpoenas shall conform in all other
respects to the requirements of the Maine Administrative Procedure Act,
5 MRSA
§9060.
C.
Petition for Modification of
Subpoena
Any witness subpoenaed may petition the hearing
officer to vacate or modify the subpoena issued. The hearing officer shall give
prompt notice to the party who requested issuance of the subpoena. After such
investigation as the hearing officer deems appropriate, the petition may be
granted in whole or in part upon a finding that the testimony or the evidence
requested does not relate with reasonable directness to any matter in question,
or that the subpoena for attendance of a witness or the production of evidence
is unreasonable or oppressive or has not been issued a reasonable period in
advance of the time when evidence is requested.
8.
Pre-Hearing
Motions
If a party in a hearing requires a response from the
hearing officer about an issue in the hearing prior to the hearing or wishes
for the hearing officer to dismiss the request for hearing, the party may
submit a written motion to the hearing officer, the other party, and their
representatives, if applicable. Upon receiving a motion the hearing officer
shall set a deadline for the opposing party to respond to the
motion.
9.
Hearing Procedures
The due process hearing shall be conducted according
to the procedures established in this section.
A.
Opening Statement
The hearing officer shall open the hearing by
describing the procedures to be followed during the hearing, the facts and
issues to be determined in the hearing, any stipulations or agreements between
the parties, and a statement of the right to appeal the
decision.
B.
Testimony
Witnesses called by either party shall testify one at
a time. They shall be permitted to listen to one another's testimony only with
the consent of both parties and at the discretion of the hearing officer.
Testimony shall be permitted by alternative means, such as video conferences
and individual or conference calls.
C.
Recording
A written or electronic verbatim recording of all
testimony and other evidence presented at the hearing shall be made and shall
become part of the record of the hearing.
D.
Evidence Admitted
The hearing officer shall not be bound by the rules
of evidence applicable to the courts, but shall be bound by the rules of
privilege recognized by law. Evidence shall be admitted if it is the kind of
evidence upon which reasonable persons are accustomed to rely in the conduct of
serious affairs. The hearing officer may exclude irrelevant or unduly
repetitious evidence and shall exclude evidence not disclosed to the other
party at least five business days prior to the due process
hearing.
E.
Persons Presenting Testimony or Exhibits Shall be Sworn or
Affirmed.F.
Official Notice
The hearing officer may take official notice of any
facts on which judicial notice could be taken and in addition may take official
notice of statutes, regulations and similar non-confidential Department or
school documents. Parties shall be notified of the material so noticed and they
shall be afforded an opportunity to contest the substance or materiality of the
facts noticed.
G.
Facts Officially Noticed Shall be Included and Indicated as such in the
record.H.
Cross-Examination
Both parties and the hearing officer have the right
to examine and cross- examine witnesses.
I.
Order of Presentation
The order of presentation of testimony and exhibits
shall be as follows unless otherwise agreed by the parties or determined
appropriate by the hearing officer.
(1)
Opening remarks by the hearing
officer;(2)
Opening statement by the party requesting the
hearing;(3)
Opening statement by the other party;(4)
Presentation of evidence by the
party (superintendent/superintendent designees or parents) requesting the
hearing and any witnesses for that party;(5)
Presentation of evidence by the
other party and any witnesses for that party;(6)
Rebuttal witnesses for the party
requesting the hearing;(7)
Rebuttal witnesses for the other
party;(8)
Summation by the party requesting the hearing; and(9)
Summation by the other
party.I.
Concluding Remarks by the Hearing Officer.
Prior to adjournment, the hearing officer shall
advise all parties that the findings of fact and the hearing officer's written
decision shall be made within 15 days of the conclusion of the
hearing.
J.
Conclusion of Hearing; Reopening of Record.
Upon conclusion of the hearing, no other evidence or
testimony shall be permitted unless the record is held open by the hearing
officer for the receipt of additional material specifically designated. The
hearing officer may reopen the record for further proceedings at any time prior
to the issuance of the final decision upon provision of appropriate notice to
the parties.
10.
Model Forms
A.
The Department shall
develop model forms to assist parents and
SAUs in filing a due
process
hearing request in accordance with
Sections
XV I.5.A and
XV I.6.A through C of this
rule and to assist parents and other parties in filing a
complaint under
Section
XV I.4. However, the
Department shall not require the use of the model forms.
These model forms apply to both Part C (B-2) and Part B
(3-22).B. Parents, public
agencies, and other parties may use the appropriate model form described in
paragraph (A) of this section, or another form or other document, so long as
the form or document that is used meets, as appropriate, the content
requirements in
Section
XV I.6.B for filing a due
process hearing request, or the requirements in
XV I.4.B(2) for filing a
complaint. [34 CFR
300.509]
11.
Resolution Process
A. Resolution Meeting
(1) Within 15 days of receiving notice of the
parent's due process hearing request, and prior to the initiation of a due
process hearing under
Section
XV I.13, the SAU must
convene a meeting with the parent and the relevant member or members of the IEP
Team who have specific knowledge of the facts identified in the due process
hearing request that--
(a)
Includes a representative of the
SAU who has decision-making
authority on behalf of that agency; and
(b) May not include an attorney of the SAU
unless the parent is accompanied by an attorney.
(2) The purpose of the meeting is for the
parent of the child to discuss the due process
hearing
request, and the facts that form the basis of the due process
hearing request, so that the SAU has the opportunity to
resolve the dispute that is the basis for the due process
hearing
request.
(3) The meeting
described in paragraph (A)(1) and (2) of this section need not be held if--
(a) The parent and the SAU agree in writing
to waive the meeting; or
(b) The
parent and the SAU agree to use the mediation process described in
Section XVI.
3.
(4) The
parent and the SAU determine the relevant members of the IEP Team to attend the
meeting.
These apply to Part C
34 CFR
303.442.
B. Resolution Period
(1) If the SAU has not resolved the due
process
hearing request to the satisfaction of the parent
within 30 days of the receipt of the due process
hearing
request, the due process hearing may occur.
(2) Except as provided in paragraph (C) of
this section, the timeline for issuing a final decision under
Section
XV I.17 begins at the
expiration of this 30-day period.
(3) Except where the parties have jointly
agreed to waive the resolution process or to use mediation, notwithstanding
paragraphs (B)(1) and (2) of this section, the failure of the parent filing a
due process hearing request to participate in the resolution meeting will delay
the timelines for the resolution process and due process hearing until the
meeting is held.
(4) If the SAU is
unable to obtain the participation of the parent in the resolution meeting
after reasonable efforts have been made (and documented using the procedures in
Section VI.H(4)), the SAU may, at the conclusion of the 30-day
period, request that a hearing officer dismiss the parent's due process
hearing request.
(5) If the SAU fails to hold the resolution
meeting specified in paragraph (A) of this section within 15 days of receiving
notice of a parent's due process
hearing request or fails to
participate in the resolution meeting, the parent may seek the intervention of
a hearing officer to begin the due process hearing timeline.
C. Adjustments to 30-day
Resolution Period
The 45-day timeline for the due process hearing in
Section
XV I.17.A starts the day
after one of the following events:
(1)
Both parties agree in writing to waive the resolution meeting;
(2) After either the mediation or resolution
meeting starts but before the end of the 30-day period, the parties agree in
writing that no agreement is possible;
(3) If both parties agree in writing to
continue the mediation at the end of the 30-day resolution period, but later,
the parent or public agency withdraws from the mediation process.
D. Written Settlement Agreement
If a resolution to the dispute is reached at the meeting
described in paragraphs (A)(1) and (2) of this section, the parties must
execute a legally binding agreement that is--
(1) Signed by both the parent and a
representative of the
SAU who has the authority to bind the
agency; and
(2) Enforceable in any
State court of competent jurisdiction or in a district court of the United
States, or by the
Department.
[Section
XV I.11.F
below]E.
Agreement Review Period
If the parties execute an agreement pursuant to paragraph (D)
of this section, a party may void the agreement within 3 business days of the
agreement's execution. [34
CFR 300.510]
F.
State Enforcement
Mechanisms
For enforcement of a resolution session agreement,
the SEA provides to parent and adult students the State complaint investigation
procedure. (Section
XV I.4) The State complaint
investigation procedure is not mandatory and will not delay or deny a party the
right to seek enforcement of the written resolution session agreement in a
State court of competent jurisdiction or in a district court of the United
States. [34 CFR §
300.537 provides the State the option for
enforcement]
12.
Settlement
Offer
A.
The SAU may
provide the parents with a written settlement offer prior to the date of the
hearing. If the parents accept the settlement offer, they shall notify the SAU,
the hearing officer, and the Department no later than the date of the
prehearing conference. Under no circumstances shall either party inform the
hearing officer, or introduce as evidence, a settlement offer that has not been
accepted, in whole or in part, by the parents.B.
The parties may at any time prior
to, during, or after the due process hearing engage in private settlement
discussions.13.
Impartial Due Process Hearing (Applicable to Part C
34 CFR
303.443, as well as Part B)
A. General
Whenever a due process hearing request is received under
Sections
XV I.5 or
XV II.3, the parents or the
LEA involved in the dispute must have an opportunity for an impartial due
process hearing, consistent with the procedures in Sections
XV I.5,
XV I.6 through 9, and
XV I.11.
B. Agency Responsible for Conducting the Due
Process Hearing
The hearing described in paragraph (A) of this section must
be conducted by the Department.
C. Impartial Hearing Officer
(1) At a minimum, a hearing officer--
(a)
Shall not be--
(i) An employee of the
Department or the SAU that is involved in the education or
care of the child; or
(ii) A person
having a personal or professional interest that conflicts with the person's
objectivity in the hearing;
(b)
Shall possess knowledge
of, and the ability to understand, the provisions of the IDEA, Federal and
State regulations pertaining to the IDEA, and legal interpretations of the IDEA
by Federal and State courts;
(c)
Shall possess the knowledge and ability to conduct hearings in
accordance with appropriate, standard legal practice; and
(d)
Shall possess the
knowledge and ability to render and write decisions in accordance with
appropriate, standard legal practice.
(2) A person who otherwise qualifies to
conduct a hearing under paragraph (C)(1) of this section is not an employee of
the
Department solely because he or she is paid by the
Department to serve as a hearing officer.
(3)
The Department shall
keep a list of the persons who serve as hearing officers. The list
shall include a statement of the qualifications of each of
those persons.
D. Subject
Matter of Due Process Hearings
The party requesting the due process hearing may not raise
issues at the due process hearing that were not raised in the due process
hearing request filed under Section
XV I.6.B, unless the other
party agrees otherwise.
E.
Timeline for Requesting a Hearing
A parent or SAU must request an impartial
hearing on their due process hearing request within two years of the date the
parent or agency knew or should have known about the alleged action that forms
the basis of the due process hearing request.
F. Exceptions to the Timeline
The timeline described in paragraph (E) of this section does
not apply to a parent if the parent was prevented from filing a due process
hearing request due to--
(1) Specific
misrepresentations by the SAU that it had resolved the problem forming the
basis of the due process hearing request; or
(2) The SAUs withholding of information from
the parent that was required under this part to be provided to the parent.
[20 USC
1415(f)(1)(A),
1415(f)(3)(A)-(D)
and 34 CFR
300.511]
14.
Hearing Rights
A. General. (Applicable to Part C
34CFR
303.444, as well as Part B)
Any party to a hearing conducted pursuant to Sections
XV I.5 through
XV I.15 or Sections
XV II.1 through
XV II.5, or an appeal
conducted pursuant to Section
XV I.16, has the right
to--
(1) Be accompanied and advised by
counsel and by individuals with special knowledge or training with respect to
the problems of children with disabilities;
(2) Present evidence and confront,
cross-examine, and compel the attendance of witnesses;
(3) Prohibit the introduction of any evidence
at the hearing that has not been disclosed to that party at least five business
days before the hearing;
(4) Obtain
a written, or, at the option of the parents, electronic, verbatim record of the
hearing; and
(5) Obtain written,
or, at the option of the parents, electronic findings of fact and
decisions.
B. Additional
Disclosure of Information
(1) At least five
business days prior to a hearing conducted pursuant to
Section
XV I.13.A, each party must
disclose to all other parties all evaluations completed by that date and
recommendations based on the offering party's evaluations that the party
intends to use at the hearing.
(2)
A hearing officer may bar any party that fails to comply with paragraph (B)(1)
of this section from introducing the relevant evaluation or recommendation at
the hearing without the consent of the other party.
C. Parental Rights at Hearings. Parents
involved in hearings must be given the right to--
(1) Have the child who is the subject of the
hearing present;
(2) Open the
hearing to the public; and
(3) Have
the record of the hearing and the findings of fact and decisions described in
paragraphs
A(4) and
A(5) of this section
provided at no cost to parents. [20 USC
1415(f)(2),
1415(h) and
34 CFR
300.512]
15.
Hearing Decisions
A. Decision of Hearing Officer on the
Provision of FAPE or EIS. (Applicable to Part C
34 CFR
303.445, as well as Part B)
(1) Subject to paragraph A(2) of this
section, a hearing officer's determination of whether a child received FAPE
must be based on substantive grounds.
(2) In matters alleging a procedural
violation, a hearing officer may find that a child did not receive a FAPE only
if the procedural inadequacies--
(a) Impeded
the child's right to a FAPE;
(b)
Significantly impeded the parent's opportunity to participate in the
decision-making process regarding the provision of a FAPE to the parent's
child; or
(c) Caused a deprivation
of educational benefit.
(3) Nothing in paragraph (A) of this section
shall be construed to preclude a hearing officer from ordering an SAU to comply
with procedural requirements under
34 CFR §§
300.500 through
300.536 or of this
rule.
B. Separate Request
for a Due Process Hearing
A parent is permitted to file a separate due
process hearing request on an issue separate from a due process hearing request
already filed.
C. Findings
and Decision to Advisory Panel and General Public. The
Department, after deleting any personally identifiable
information,
shall--
(1)
Transmit the findings and decisions referred to in
Section
XV I.A. (5) to the State
advisory panel established under
34 CFR §
300.167; and
(2) Make those findings and decisions
available to the public. [20
USC 1415(f)(3)(E) and (F),
1415(h)(4),
1415(o) and
34 CFR
300.513]
16.
Finality of Decision; Appeal;
Impartial Review
A. Finality of Hearing
Decision
A decision made in a hearing conducted pursuant to
§§ 300.507 through 300.513 or §§ 300.530 through 300.534
Sections
XV I.5 through
XV I.15 or Sections XVII.1 through
XVII.5 is final, except that any party involved in the hearing may
appeal the decision under [Section XV.19] (Applicable to Part
C 34 CFR
303.446, as well as Part
B)
17.
Timelines and Convenience of Hearings
A. Not later than 45 days after the
expiration of the 30 day period under
Section XVI.11.B, or the
adjusted time periods described in
Section XVI.11.C--
(1) A final decision
shall
be reached in the hearing; and
(2) A copy of the decision
shall
be mailed to each of the parties.
B. A hearing officer may grant specific
extensions of time beyond the periods set out in paragraphs (A) of this section
at the request of either party.
C.
Each hearing involving oral arguments must be conducted at a time and place
that is reasonably convenient to the parents and child involved. [20 USC
1415(f)(1)(B)(ii),
1415(g),
1415(i)(1) and 34
CFR .300.515] (Applicable to Part C 34 CFR 3003.447, as well as Part
B)
18.
Attorneys'
Fees
A. In general. (Only applies to
Part B)
(1) In any action or proceeding
brought under
Section XVI.5 or XVI.19, the court, in its
discretion, may award reasonable attorneys' fees as part of the costs to--
(a) The prevailing party who is the parent of
a child with a disability;
(b) To a
prevailing party who is
the Department or an SAU against the
attorney of a parent who files a hearing request or subsequent cause of action
that is frivolous, unreasonable, or without foundation, or against the attorney
of a parent who continued to litigate after the litigation clearly became
frivolous, unreasonable, or without foundation; or
(c) To a prevailing
Department or SAU against the attorney of a parent, or against
the parent, if the parent's request for a due process hearing or subsequent
cause of action was presented for any improper purpose, such as to harass, to
cause unnecessary delay, or to needlessly increase the cost of
litigation.
B.
Prohibition on Use of Funds
(1) Funds under
Part B or Part C of the IDEA shall not be used to pay attorneys' fees or costs
of a party related to any action or proceeding under section
XVI.5 or
XVI.19.
(2) Paragraph
(B)(1) of this section does not preclude
the Department or SAU
from using funds under Part B or Part C of the IDEA for conducting an action or
proceeding under section
XVI.5 or XVI.19.
C. Award of Fees. A court
that awards reasonable attorneys' fees under
this section
shall do so consistent with the
following:
(1) Fees awarded under
this section must be based on rates prevailing in the
community in which the action or proceeding arose for the kind and quality of
services furnished. No bonus or multiplier may be used in calculating the fees
awarded under this paragraph.
(2)
(a) Attorneys' fees may not be awarded and
related costs may not be reimbursed in any action or proceeding under this
section for services performed subsequent to the time of a written offer of
settlement to a parent if--
(i) The offer is
made within the time prescribed by Rule 68 of the Federal Rules of Civil
Procedure or, in the case of an administrative proceeding, at any time more
than 10 days before the proceeding begins;
(ii) The offer is not accepted within 10
days; and
(iii) The court or
administrative hearing officer finds that the relief finally obtained by the
parents is not more favorable to the parents than the offer of
settlement.
(b)
Attorneys' fees may not be awarded relating to any meeting of the IEP Team
unless the meeting is convened as a result of an administrative proceeding or
judicial action, or for a mediation described in
Section XVI.2 or
XVI.3.
(c) A meeting
conducted pursuant to
Section XVI.11 shall not be considered--
(i) A meeting convened as a result of an
administrative hearing or judicial action; or
(ii) An administrative hearing or judicial
action for purposes of this section.
(3) Notwithstanding paragraph (C)(2) of this
section, an award of attorneys' fees and related costs may be made to a parent
who is the prevailing party and who was substantially justified in rejecting
the settlement offer.
(4) Except as
provided in paragraph (C)(5) of this section, the court
shall
reduce, accordingly, the amount of the attorneys' fees awarded under
this section, if the court finds that--
(a) The parent, or the parent's attorney,
during the course of the action or proceeding, unreasonably protracted the
final resolution of the controversy;
(b) The amount of the attorneys' fees
otherwise authorized to be awarded unreasonably exceeds the hourly rate
prevailing in the community for similar services by attorneys of reasonably
comparable skill, reputation, and experience;
(c) The time spent and legal services
furnished were excessive considering the nature of the action or proceeding;
or
(d) The attorney representing
the parent did not provide to the
SAU the appropriate
information in the due process request notice in accordance with
Section XVI.6.
(5) The provisions of paragraph (C)(4) of
this section do not apply in any action or proceeding if the court finds that
the
Department or
SAU unreasonably protracted
the final resolution of the action or proceeding or there was a violation of
section of the IDEA. [20 USC
1415(i)(3)(B)-(G) and
34 CFR
300.517]
D.
Responsibility for Attorneys'
Fees(1)
SAU expenses-
Personnel expenses incurred by an SAU in the conduct of a hearing shall be
considered allowable special education costs. All expenditures (such as fees,
honoraria, and per diem expenses) by an SAU to personnel involved in a hearing
shall be supported by contractual agreements between these personnel and the
SAU. Attorneys' fees and expenses for qualified special education or related
services providers may be claimed as special education costs using only local
or State funds. Funds under Part B and Part C of the Individuals with
Disabilities Education Act may not be used to pay attorneys' fees or costs of a
party related to an action or proceeding under the procedural safeguards
section of IDEA or Section
XVI of this rule.(2)
Private expenses of hearing-
Reasonable attorneys' fees incurred by a parent related to a special education
hearing shall be the responsibility of the SAU when the parent prevails in the
special education hearing and when ordered by a court of appropriate
jurisdiction. Attorneys' fees shall be considered an allowable special
education expenses using only local or State funds. Funds under Part B and Part
C of the Individuals with Disabilities Education Act may not be used to pay
attorneys' fees or costs of a party related to an action or proceeding under
the procedural safeguards section of IDEA or Section
XVI of this rule.(3)
Public expenses of hearing -
Impartial hearing officer expenses for due process hearings will be paid
directly by the Department.19.
Civil Action
A. General. (Applies to Part C
34 CFR
303.448, as well as Part B)
Any party aggrieved by the findings and decision made under
Sections
XV I.5 through
XV I.15 or Sections
XV II.1 through
XV II.15 has the right to
bring a civil action with respect to the due process hearing request notice
requesting a due process hearing under Section
XV I.5 or Section
XV II.1 through
XV II.3. The action may be
brought in any State court of competent jurisdiction or in a district court of
the United States without regard to the amount in controversy.
B. Time Limitation
The party bringing the action shall have 90 days from the
date of the decision of the hearing officer to file a civil action.
C. Additional Requirements
In any action brought under paragraph (A) of this section,
the court--
(1) Receives the records
of the administrative proceedings;
(2) Hears additional evidence at the request
of a party; and
(3) Basing its
decision on the preponderance of the evidence, grants the relief that the court
determines to be appropriate.
D. Jurisdiction of District Courts
The district courts of the United States have jurisdiction of
actions brought under section 615 of the IDEA without regard to the amount in
controversy.
E. Rule of
Construction
Nothing in this part restricts or limits the rights,
procedures, and remedies available under the Constitution, the Americans with
Disabilities Act of 1990, title V of the Rehabilitation Act of 1973, or other
Federal laws protecting the rights of children with disabilities, except that
before the filing of a civil action under these laws seeking relief that is
also available under the procedural safeguards section of the
Act, the procedures under Section
XV I.5 and Section
XV I.16 must be exhausted to
the same extent as would be required had the action been brought under
the procedural safeguards section of the IDEA. [20 U.S.C. 1415(i)(2) and
(3)(A),
1415(l) and
34 CFR
300.516]
F.
If a party appeals a hearing
decision, that party must send a copy of that appeal to the Department of
Education Due Process Office at the same time as the appeal is filed with the
court.20.
Child's Status during Proceedings
A. Except as provided in
Section
XV II.4, during the pendency
of any
mediation or state complaint investigation request or
administrative or judicial proceeding regarding a due process
hearing
request notice requesting a due process hearing under
Section
XV I.5, unless the
Department or
SAU and the parents of the
child agree otherwise, the child involved in the hearing request must remain in
his or her current educational placement.
B. If the hearing request involves an
application for initial admission to public school, the child, with the consent
of the parents, must be placed in the public school until the completion of all
the proceedings.
C. If the hearing
request involves an application for initial services under this part from a
child who is transitioning from Part C of the Act to Part B and is no longer
eligible for Part C services because the child has turned three, the
SAU is not required to provide the Part C services that the
child had been receiving. If the child is found eligible for special education
and related services under Part B and the parent consents to the initial
provision of special education and related services under S
ection
V.1.A(4)(a)(ii), then the
SAU must provide those
special education and related services that are not in dispute between the
parent and the public agency.
D. If
the hearing officer in a due process hearing agrees with the child's parents
that a change of placement is appropriate, that placement must be treated as an
agreement between the
Department and the parents for purposes
of paragraph A of this section. [20 USC 1415(j)
and 34 CFR
300.518]
21.
Appeal (Only applies to Part
B)
A. General. The parent of a child
with a disability who disagrees with any decision regarding placement under
Sections
XV II.1 and
XV II.2 or the manifestation
determination under
Section
XV II.E, or an SAU that
believes that maintaining the current placement of the child is substantially
likely to result in injury to the child or others, may appeal the decision by
requesting a hearing. The hearing is requested by filing a complaint pursuant
to
Sections
XV I.5 and
XV I.6.A and B.
[34 CFR
300.532(a)]
B. Authority of Hearing Officer
(1) A hearing officer under
Section
XV I.13 shall hear, and make
a determination regarding an appeal under paragraph (A) of this
section.
(2) In making the
determination under paragraph (B)(1) of this section, the hearing officer may
(a) Return the child with a disability to the
placement from which the child was removed if the hearing officer determines
the removal was a violation of
Section
XV II.1 or that the child's
behavior was a manifestation of the child's disability, or
(b) Order a change of placement of the child
with a disability to an appropriate interim alternative educational setting for
not more than 45 school days if the hearing officer determines that maintaining
the current placement of the child is substantially likely to result in injury
to the child or others.
(3) The procedures under paragraphs (A) and
(B)(1) and (2) of this section may be repeated, if the SAU believes that
returning the child to the original placement is substantially likely to result
in injury to the child and to others. [34 CFR
300.532(b)]
C. Expedited Due Process
Hearing Procedure
(1) Whenever a hearing is
requested under
Section
XV II.3.A, the parents or
the SAU involved in the dispute must have an opportunity for an impartial due
process hearing consistent with the requirements of
Sections
XV I.5 and XVI.6.A through C
and
Sections XVI.11 through XVI.16, except as provided in
paragraph (C)(2) through (4) of this section.
(2) The
Department shall arrange for
an expedited due process hearing, which
shall occur
within 20 school days of the date the complaint requesting the hearing is
filed. The hearing officer
shall make a determination within
10 school days after the hearing.
(3) Unless the parents and SAU agree in
writing to waive the resolution meeting described in paragraph (C)(3)(a) of
this section, or agree to use the mediation process described in
Section XVI.3-
(a) A
resolution meeting must occur within seven days of receiving
the
parent's request for a due process hearing; and
(b) The due process hearing may proceed
unless the matter has been resolved to the satisfaction of both parties within
15 days of the receipt of the due process complaint.
(4) Expedited Due Process Hearings
shall only be available for persons who have been removed from school
for disciplinary purposes and shall:
(a)
Meet the hearing procedure
described in this section except that the hearing officer may elect to limit
the hearing to a single day for presentation of evidence, direct and cross-
examination of witnesses, and rebuttal.(b)
The appointment of the hearing
officer shall meet the requirements of Section XVI.13.C of this rule,
(Impartial Hearing Officer), except that the time periods identified in Section
XVI.14 of this rule, (Hearing Rights)for disclosure of
evidence shall, for purposes of expedited due process hearings, be not less
than five business days.(5) The decisions on expedited due process
hearings are appealable consistent with
Section XVI.16.
[20 USC
1415(k)(3) and (4)(B),
1415(f)(1)(A) and
34 CFR
300.532(c)]
22.
Final
Decision Notice
Every decision made at the conclusion of a proceeding
subject to this rule shall be in writing and shall include findings of fact
sufficient to apprise the parties and any interested member of the public of
the basis for the decision.
A.
Findings of Fact; Final
Decision
The hearing officer shall issue the findings of fact
and the final decision to all parties within 15 days after the conclusion of
the hearing.
B.
Transmittal of Record of Hearing
The hearing officer shall forward the complete record
of the hearing, the findings of fact, and the final decision to the Due Process
Coordinator within 15 days after the conclusion of the hearing. The Department
will transmit the findings of fact and decision, after deleting personally
identifiable information, to the Maine Advisory Panel on the Education of
Children with Disabilities.
C.
Appeal
Any party to the hearing may appeal the decision of
the hearing officer to the Maine Superior Court or the Federal District Court.
Federal law requires that such appeals be brought in Maine Superior Court or
Federal District Court within 90 days of the receipt of the decision of the
hearing officer. An appeal may be filed in Maine Superior Court for the county
in which the student resides or the county in which the administrative unit is
located. If a party serves an appeal to court of a hearing decision, that party
must send a copy of that appeal to the Department of Education Due Process
Office at the same time as the appeal is served to the court.
D.
Compliance
The SAU shall submit to the Commissioner, within 45
days of the date the unit receives the final decision, documentation that the
unit has complied with the decision or that an appeal is
pending.
E.
Enforcement
If the SAU refuses to comply with a hearing decision
and neither party appeals the decision, the Commissioner shall initiate
enforcement action. (20-A MRSA §§6801-A and 7206)
23.
Hearing Record
In proceedings subject to this rule, the hearing
officer shall make a record consisting of:
A.
All papers filed and evidence
received or considered;B.
A statement of facts officially noticed;C.
Offers of proof, objections and
rulings thereon;E.
The final decision.
The Commissioner shall retain the entire record of
the hearing.
