Due Process

See our list of commonly used acronyms

Does the mediation agreement that has been signed by both parties go into effect immediately or after 3 business days have passed?

There is no 3-business day requirement for the voiding of a mediation agreement as there is for resolution session agreements. The mediation agreement may contain whatever timeframe for the fulfillment of the agreement that the parties agree to and goes into effect immediately once signed by both parties.

I have had an IEP Team meeting where a re-evaluation was determined, and Written Notice (WN) and consent were sent, then the parents call and refuse to give consent. If we decide to file for a hearing, must I send a WN?

If a WN about the issues for a hearing has already been sent to the parents, no other WN about the hearing issues is necessary.

May an advocate file a Due Process Hearing Request?

No. If the parent or adult student is represented by an attorney, the attorney may file the hearing request. A parent or attorney may list on the hearing request form the information about the parent’s advocate.

Notice under discipline--is that notice to parents WN and if so-- not one of the options on the WN form?

Yes, it is WN. It would be listed under the category of “Change of Placement.”

Provide justification for exceeding federal compensatory education statute of limitations.

In the “Analysis of Comments” to the federal regulations, it is indicated that the IDEA gives State Education Agencies (SEAs) the option of giving parents a longer timeframe for complaint investigations. The Maine legislature adopted the IDEA one-year statute of limitations for complaint investigations as well as a two-year statute of limitations if the complainant is requesting compensatory services for a violation that allegedly occurred not more than two years prior to the date that the written complaint is received by the Department of Education.

The parent of a child who is parentally placed in a private school disagrees with the SAU’s evaluation and requests an independent educational evaluation (IEE) at public expense. If the SAU believes that its evaluation is appropriate and declines to conduct an IEE at public expense, must the SAU then file for a hearing with the family?

Yes, this would be an issue under Child Find. The SAU would follow the MUSER §V.6 and MUSER Appendix I, 34 CFR §300.502.

Under what circumstances would a complaint investigation report or hearing decision order a monetary reimbursement?

For example, if parents have paid out of pocket for outside-of-school tutoring for their child, and a presider finds/concludes that a SAU has not met its obligation to provide a FAPE to the child, the presider may recommend to the Commissioner a Corrective Action Plan item that provides monetary reimbursement for all or part of the costs of the outside-of-school tutoring. The same applies to hearing officers and hearing orders, except that the hearing officer is independent and does not have to check first with the Commissioner for the allowability of a hearing order item.

What are the due process rights of parents who have unilaterally placed their children in private schools?

MUSER §II.27 states “children who are unilaterally placed in private schools by their parents when FAPE is at issue are not parentally placed private school students for purposes of this rule, so long as the parent has provided service pursuant to IV[4].G.(3)(d) of this rule.”

If FAPE is at issue, a written notice has been provided by the parents to the SAU of resident pursuant to MUSER §IV.4.G(3)(d)(i)(II), and a parent has unilaterally placed a child in a private school, the parents may request a due process hearing from the Maine Department of Education.

If FAPE is not at issue, the parents of a child who has been unilaterally placed by the parents in a private school may request a stand-alone mediation or a complaint investigation to resolve disputes about special education.

Who is the agency representative with the authority to obligate the CDS sites?

For Part C, MUSER VI.1.B.(1)(d) states:

“(d) The case manager who has been working with the family since the initial referral of the child for evaluation, or who has been designated by the public agency to be responsible for implementation of the IFSP and has written authorization to obligate the IEU’s human and fiscal resources.”

CDS will provide written authorization for the case managers who may obligate the IEU’s fiscal and human resources.

For Part B, MUSER Section VI.2.B.(4)(a)-(c) states:

“(4) A representative of the school administrative unit who

(a) Is qualified to provide or supervise the provision specially designed instruction meet the unique needs of students with disabilities;

(b) Is knowledgeable about the general education curriculum;

(c) Is knowledgeable about the availability of resources of the local educational agency and has written authorization to obligate the unit…”

Furthermore, CDS Administrative Letter Number 7 dated December 13, 2007 requires written CDS Board authorization of the certified individuals who may obligate CDS sites’ human and fiscal resources.

Why do parents have to express concerns in writing, but teachers need only to express specific concerns to the special education director or other supervisor? I assume that there is no requirement for teachers to put their concerns in writing?

This question is referring to MUSER Section XVII.5.A and B.(1)-(3) which states:

5. Protections for Children Not Determined Eligible for Special Education and Related Services [34 CFR 300.534]

A. General.

A child who has not been determined to be eligible for special education and related services under this part and who has engaged in behavior that violated a code of student conduct, may assert any of the protections provided for in this part if the public agency had knowledge (as determined in accordance with paragraph (B) of this section) that the child was a child with a disability before the behavior that precipitated the disciplinary action occurred.

B. Basis of Knowledge.

A public agency must be deemed to have knowledge that a child is a child with a disability if before the behavior that precipitated the disciplinary action occurred—

(1) The parent of the child expressed concern in writing to supervisory or administrative personnel of the appropriate educational agency, or a teacher of the child, that the child is in need of special education and related services;

(2) The parent of the child requested an evaluation of the child pursuant to §§ 300.300 through 300.311; or

(3) The teacher of the child, or other personnel of the SAU, expressed specific concerns about a pattern of behavior demonstrated by the child directly to the director of special education of the agency or to other supervisory personnel of the agency.

Return to MUSER Topics