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As the parent of a child who has or may have a disability,
you are entitled to participate in meetings regarding your child’s eligibility
determination, initial evaluation or reevaluation, educational placement or
provision of a free appropriate public education.
Your school district must provide you with a written
notice at least seven days prior to the date
a reasonable time before the school
proposes or refuses to initiate or change the identification, evaluation, or
educational program, placement or
the provision of a free appropriate public education to your child.of
your child or the provision of a free appropriate public education to the
child.
If the school is also required to have your written
permission (consent) for an action, the school may provide this notice to you
at the same time it requests your consent.
The notice must include:
A description of the action proposed or refused by
the school, an explanation of why the school proposes or refuses to take the
action, and a description of any options the school considered and the reasons
why those options were rejected;
A description of each evaluation procedure, test,
record, or report the school uses as a basis for the proposal or refusal;
A description of any other factors which are
relevant to the school's proposal or refusal; and
A statement that you have the rights contained
within this notice and where you may obtain a copy of this notice.
Sources you may contact for assistance in
understanding your rights include the Maine Parent
FederationSpecial Needs Parents Information Network
(1-800-870-7746) and Southern Maine Parent Awareness (1-800-564-9696).
You may file a complaint with the Maine Department
of Education if you believe the school has violated a requirement under the
Maine Special Education Regulations. (see Department of Education
Complaints in §H. below)
The notice must be written in language
understandable to the general public. The notice must be provided in your
native language or other mode of communication, unless it is clearly not
feasible to do so. If your native
language or other mode of communication is not a written language, your school
must take steps to insure that the notice is translated orally or by other
means to you in your native language or other mode of communication, that you
understand the content of the notice, and that there is written evidence that
these requirements have been met.
Your school must obtain your written permission
(consent) before conducting an initial evaluation, before an initial placement
of your child in a program providing special education and supportive services
or before conducting any new test as part of a reevaluation of your child. Except for initial evaluation, reevaluation
and initial placement, your permission may not be required as a condition for
providing any special education or supportive services to you or your child.
Consent for initial evaluation may not be construed as consent for initial
placement.
If you refuse to provide your permission (consent)
for an initial evaluation or initial placement of your child,
in a program providing special education and
supportive services, your school may use the due process hearing
or mediation procedures to determine whether your child may be evaluated or
initially provided special education and supportive services
without your consent. If the hearing
officer orders the school to evaluate or place
your child or if you and the school reach a mediated agreement, the school may
evaluate your child. or provide special
education and supportive services to your child.
Generally, either parent may grant consent. In the
case of divorced parents with joint custody either parent may grant consent.
However, in the event that one parent grants consent and the other parent
refuses, then the school is obligated to initiate the action for which consent
has been granted.
The Pupil Evaluation Team (P.E.T.), of which you are
a member, may decide that no additional information is needed to determine your
child’s initial or continuing eligibility for special education. If you
disagree with the team’s decision, you may request that the school conduct an
assessment of your child. If your child has a disability and has been receiving
special education services, the school district must evaluate your child before
determining that your child no longer requires special education services.
The school must obtain your written consent before
conducting a reevaluation of your child. However, if the school can show that
it tried to get your consent for the reevaluation of your child and you did not
respond then the school may reevaluate your child without your consent. Your
consent is not required to review existing evaluation information.
An independent evaluation is an evaluation conducted
by a qualified person who is not an employee of the school. You have the right
to an independent educational evaluation at no cost to you if you disagree with
an evaluation obtained by your school. However, your school may initiate a due
process hearing to show that its evaluation is appropriate. If the hearing decision is that the school’s
evaluation is appropriate, you still have the right to an independent
educational evaluation, but at your expense.
If you obtain an independent educational evaluation at your expense, the
results of the evaluation must be considered by your school in any decision
made with respect to the provision of a free appropriate public education to
your child, and may be presented as evidence at a due process hearing regarding
your child.
If a hearing officer requests an independent
educational evaluation as part of a hearing, the cost of the evaluation must be
at public expense.
Your school shall provide you, when you request it,
information about where an independent educational evaluation may be obtained.
IfWhenever
an independent evaluation is at public expense, the criteria under which the
evaluation is obtained, including the location of the evaluation and the
qualifications of the examiner, aremust
be the same as the criteria that the school
administrative unitwhich the school
uses when it initiates an evaluation., to the extent those criteria are consistent
with your (the parent’s) right to an
independent evaluation. A school may not impose any additional
criteria regarding an independent educational evaluation.
You have the right to file a written complaint with
the superintendent of the administrative unit responsible for the education of
your son or daughter if you have reason to believe that the administrative unit
is not in compliance with these special education regulations. The superintendent, or a designee, shall
then appoint a person to investigate your complaint and to recommend to the
superintendent, within 30 days of the receipt of the written complaint, any corrective
action necessary to resolve your complaint.
You have the right to file a signed, written
complaint with the Commissioner of the Department of Education if you have
reason to believe that the administrative unit responsible for the education of
your son or daughter is not in compliance with these special education
regulations or if you disagree with the results of a superintendent’s complaint
investigation.
The Department shall initiate and complete, within
60 days of the receipt of the written complaint, an investigation and a
determination of whether your school has complied with these special education
regulations.
If your school is determined to be in
non-compliance, the Department will develop a corrective action plan to resolve
the complaint.
You or the school have the right to request the
Department of Education to provide mediation services if you and the school are
unable to agree upon the identification, evaluation, educational program,
placement or the provision of a free, appropriate public education of your son
or daughter.
The mediation must be voluntary on the part of both
you and the school district. Mediation may not be used to delay or deny your
right to a due process hearing. The mediation must be conducted by a qualified
and impartial mediator at no cost to you or to the
school district. The Department of Education maintains a list of
qualified mediators available to be assigned when you and the school request
the use of Themediation. The
mediation will be held in a timely manner and at a location that is convenient
to you and the school. Any agreement reached in mediation will be put into
writing and becomes a part of your child’s I.E.P. If the school fails to
implement the mediation agreement you may initiate a hearing or file a
complaint against the school. Mediation discussions are confidential and may
not be used as evidence in a hearing. You and the school may be required to
sign a confidentiality pledge prior to the start of the mediation.
If you chose not to participate in a mediation, the
Maine Department of Education may require you to meet with a third party who
will explain the benefits of the mediation process to you. If you would like to
request a mediation or would like more information about mediation, you may
contact the Maine Department of Education, Special Services Team at 624-6650.287-5950.
You or your school may initiate a hearing regarding
the school's proposal or refusal to initiate or change the identification,
evaluation, or educational placement of your child or the provision of a free
appropriate public education to your child.
You must send your written request for a due process
hearing to the Maine Department of Education. The request must contain the name
of the child, the child’s residence, the school the child is attending, a
description of the problem and facts relating to the problem, and a proposed
solution to the problem.
A form is available from the Maine Department of
Education, your local school, or the Maine Parent
Federation.Special Needs Parent Information Network (SPIN).
Failure to provide the required information may result in a reduction of the
award of any attorney fees if you win your case.
The hearing will be conducted by an impartial
hearing officer appointed by the Department and contracted to provide hearing
officer services.
The Department must inform you of any free or
low-cost legal and other relevant services available in the area if you request
the information or if you or your school initiate a due process hearing.
A hearing may not be conducted by a person who is an
employee of a public agency which is involved in the education or care of your
child, or by any person having a personal or professional interest which would
conflict with his or her objectivity in the hearing. (A person who otherwise
qualifies to conduct a hearing is not an employee of the Department solely
because he or she is paid by the Department of Education to serve as a hearing
officer.)
The Department maintains a list of the persons who
serve as hearing officers. The list
includes a statement of the qualifications of each of those persons.
At least five
business days prior to a hearing, you and any parties to the hearing shall
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.
If any party has failed to comply with this requirement, the hearing
officer may bar you or any other party from introducing the relevant evaluation
or recommendations at the hearing without the consent of the other party.
The Department shall ensure that a final hearing
decision is reached and mailed to the parents and the school within 45 days
after the receipt of a request for a hearing, unless the hearing officer grants
a specific extension at the request of either party. You have a right
to receive, at your request, an electronic copy of the findings of fact and
decisions of the hearing officer.
The decision made in a due process hearing is final,
unless you or the school brings a civil action under the procedures described
below.
Any party to a hearing 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 students 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 electronic verbatim record of the hearing; and
5.
Obtain written findings of fact and decisions. (After deleting any personally
identifiable information, the Department shall transmit those findings and
decisions to the State advisory panel and make them available to the public.)
As the parent, you have the following additional
rights:
You
may have your child present at the hearing;
You
may open the hearing to the public; and
You
may obtain the findings of fact, decision and record of the hearing at no cost
to you.
Each
hearing must be conducted at a time and place which is reasonably convenient to
you and your child.
Any party aggrieved by the findings and decision
made as the result of a due process hearing has the
right to bring a civil action with respect to the complaint
presented at the hearing. 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. The court
will receive the records of the due process hearing and may hear additional
evidence at the request of either party.
Basing its decision on the preponderance of evidence, the court will grant
whatever relief it determines to be appropriate. Nothing in this section 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 you must first
exhaust the procedures available to you through the special education due
process system and subsequent civil actions before filing a civil action under these
laws seeking relief that is also available through those procedures.in
a hearing has the right to appeal the decision in State or Federal Court.
If you have any
questions regarding these requirements, they should be directed to David
Stockford, Director of the Special Services Team, or to the Special Education
Due Process Office at 624-6650.
During the pendency of any complaint investigation,
mediation, or due process hearing or appeal of a hearing, unless you and your
school agree otherwise, your child must remain in his or her present
educational placement and program.
If the hearing involves an application for initial
admission to public school, your child, with your consent, must be placed in
the public school program until the completion of all the proceedings.
You may request either a state or federal court to
award reasonable attorney fees and costs if you win your hearing either through
a settlement or a hearing decision. Reasonable
attorney fees incurred by you related to a special education hearing shall be
the responsibility of the administrative unit when you prevail in the special
education hearing and when ordered by a court of appropriate jurisdiction, or
when attorney’s fees have been agreed to as part of an
out-of-court settlement.
Attorney fees may not be awarded relating to any
meeting of the Pupil Evaluation Team unless the meeting occurs as a result of
an order of a hearing officer or a judge. Attorney fees may not be awarded for
a mediation.
The award of attorney fees may be reduced if you
unreasonably delayed the settlement or decision in the case, the time spent and
services furnished were excessive or the fees charged by your attorney exceed
reasonable rates.
Each school shall ensure that an individual is
assigned to act as a surrogate for the parents of a child when no parent can be
identified, the school, after reasonable efforts, cannot discover the
whereabouts of a parent, or the child is a ward of the State. The Department must have a method for
determining whether a child needs a surrogate parent, and for assigning a
surrogate parent to the child.
The Department may select a surrogate parent in any
way permitted under State law, but must ensure that a person selected as a
surrogate is not an employee of an agency which is involved in the education or
care of the child, has no interest that conflicts with the interest of the
child he or she represents, and has knowledge and skills that ensure adequate
representation of the child. (An individual is not disqualified as an agency
employee from appointment as a surrogate solely because he or she is paid by
the Department to serve as a surrogate parent.)
The surrogate parent may represent the child in all
matters relating to the identification, evaluation, and educational placement
of the child, and the provision of a free appropriate public education to the
child.
In general, when your child reaches age 18 (or has
been emancipated), these procedural safeguards will transfer to your child. A
court may appoint a legal guardian for your child if your child has been
determined, consistent with state procedures, to be unable to provide informed
consent.
At least one year before your child turns 18, the
school district will inform your child of the rights, if any, that will be
transferred to your child. The school will inform both you and your child when
these rights are transferred to your child.
As the parent of an adult child with a disability,
both you and your child will continue to receive notice of P.E.T. meetings, prior, prior
written notice and the notice of procedural safeguards.
If your child has violated the school’s disciplinary
standards, the school may remove your child from his or her current educational
setting for not more than 10 consecutive school days or 10 days cumulatively
within a school year, to the extent removal would be applied to students
without disabilities.
After a child with a disability has been removed
from his or her current placement for more than 10 school days in the same school yearschool year,
during any subsequent days of removal the public agency must providemust provide
services to the extent necessary to enable the child to appropriately progress
in the general curriculum and appropriately advance toward achieving the goals
set out in the child’s I.E.P.
Your son or
daughter may be placed in an appropriate interim alternative education program,
as determined by a PET, for not more than 45 days if he or she knowingly
possesses or uses illegal drugs or sells or solicits the sale
of a controlled substance or carries a weapon while at school or a school function
under the jurisdiction of the state or any local school.The
school district may place your child in an interim alternative education
setting for up to 45 days if your child possesses or uses illegal drugs or
carries a weapon to school or a school function.
If the school district wants to change your child’s
placement for more than 10 school days, you have the right to participate in
the manifestation determination meeting. This meeting determines whether the
behavior was or was not related to your child’s disability.
If your school did
not conduct a functional behavioral assessment and implement a behavioral
intervention plan for your son or daughter before the behavior that resulted in
the removal for disciplinary purposes, the school must convene a PET meeting to
develop an assessment plan. As soon as
practical after the assessment, the PET must meet to develop appropriate
behavioral interventions to address that behavior and implement those
interventions. If your son or daughter
already has a behavioral intervention plan in pace, the PET must meet to review
the plan and its implementation, and modify the plan and its implementation as
necessary, to address the behavior.
If the determination is made that the behavior is
related to your child’s disability then your child may not be suspended, expelled
or removed from his or her current educational placement for more than ten
school days (except in the case of weapons or drugs) unless the Pupil
Evaluation Team develops a new I.E.P. and decides upon a new placement.
If
it is determined that the behavior was not a manifestation of your son or
daughter’s disability and disciplinary measures will be applied as they would
to any other student, then your school must make sure that the special
education and disciplinary records of your son or daughter are given to the
person or persons making the final disciplinary decision, so that this
information can be taken into account in reaching a decision.If
there is no relationship between your child’s disability and the behavior, then
your child may be disciplined as any other child. During any
removal in excess of 10 days, the school district shall provide your child with
special education and supportive services to the extent necessary to enable
your child to appropriately progress in the general curriculum and
appropriately advance toward achieving the goals set out in your child’s I.E.P.
If you disagree with the manifestation
determination, you have a right to request an expedited due
process hearing to review the PET determination. The hearing officer will review all the records of the meeting to
determine whether your school has demonstrated that your son or daughter’s
behavior was not a manifestation of his or her disability.the
decision to place your child in an interim alternative education setting or any
other disciplinary placement, you have the right to request
a hearing or an expedited due process hearing.
If your son or
daughter is not already identified as a student with a disability, but either
you or school personnel had expressed concern to your director of special
education that he or she might need special education and no determination has
been made that he or she was not eligible, then your son or daughter may have
the same protections around discipline
as if he or she had been
determined to be a student with a
disability. If a request is made for an
evaluation during the time your son or daughter is subjected to disciplinary
action, the evaluation must be conducted in an expedited manner. Until the evaluation is complete, your son
or daughter will remain in the educational placement determined by school
authorities, which can include suspension or expulsion without educational
services. If your son or daughter is
subsequently identified as a student with a disability, taking into account information
from the evaluation as well as provided by you,
then your school must provide him or her with special education and supportive
services in accordance with all of the special education laws and regulations.
Nothing relating
to the rights of parents and students during disciplinary proceedings prohibits
the school from reporting a crime committed by a student with a disability to
appropriate authorities or to prevent State law enforcement and judicial
authorities from exercising their responsibilities with regard
to the application of Federal and State law to crimes committed by a student
with a disability. The school may
send copies of the special education and disciplinary records of the student
with a disability for consideration by the appropriate authorities to whom it
reports the crime. The school may only
send records to the extent that this is permitted by the Family Education
Rights and Privacy Act and in accordance with state law.
Generally, if you initiate a due process hearing,
your child will remain in his or her current educational placement until a
final decision has been reached or you and the school agree upon another
placement. However, in cases where your child has been placed in an interim
alternative education setting because of a disciplinary action, your child may
remain in the interim alternative education setting for a period not to exceed
10 days (or 45 days if a weapon or drug related offence). Thereafter, your
child will return to the previously agreed upon educational placement unless
either a hearing officer orders another placement or you and the school agree
to another placement.
The school district may be required to reimburse the
costs of a private school placement if you can prove at a due process hearing
that the school district has failed or is unable to provide your child with a
free appropriate public education and that the private placement is
appropriate.
If you plan to place your child with a disability in
a private school and seek reimbursement from the school district, you must
inform the school district at a Pupil Evaluation Team meeting or provide the
school district with written notice at least 10 business days (excluding
weekends) prior to the enrollment of your child in the private school. You must
inform the school about your disagreement with the school’s I.E.P., the
placement proposed by the school, your intention to enroll your child in a
private school and your intention to request reimbursement.
If the school has provided you with a written notice
that the school intends to evaluate your child before you remove your child
from the public school, you must make your child available to the school for
evaluation.
A court or hearing officer could decide to reduce or
deny reimbursement for your private school placement if you fail to inform the
school of your intention to make a private school placement at public expense,
fail to make your child available for evaluation, or take other unreasonable
actions. The cost of reimbursement for a unilateral
placement may not be reduced or denied for failure to provide notice to your
school if: (a) You are illiterate and cannot write in English; (b) Providing
notice would likely result in physical or serious emotional harm to your child;
(c) The school prevented you from providing notice; or (d) You had not received
notice that you are required to notify the school if you plan to make a unilateral
placement of your child in a private school.
Your school must permit you to inspect and review all
education records relating to your child with respect to the identification,
evaluation, and educational placement of your child, and the provision of a
free appropriate public education to your child, which are collected,
maintained, or used by the school. The school must comply with a request
without unnecessary delay and before any meeting regarding an individualized
education program or hearing relating to the identification, evaluation,
placement or provision of appropriate services to your child, and in no case
more than 45 days after the request has been made.
Your right to inspect and review education records
under this section includes:
A.
The right to a response from the participating school to reasonable requests
for explanations and interpretations of the records;
B.
Your right to have your representative inspect and review the records; and
C.
Your right to request that the school provide copies of the records containing
the information if failure to provide those copies would effectively prevent
you from exercising your right to inspect and review the records.
The school may presume that you have authority to
inspect and review records relating to your child unless the school has been
advised that you do not have the authority under applicable Maine law governing
such matters as guardianship, separation, and divorce.
The school must keep a record of who (other than
authorized employees of the school and the parent) has had access to your
child’s records, including the person’s name, date, and purpose for the access.
If any education record includes information on more
than one child, you have the right to inspect and review only the information
relating to your child or to be informed of that specific information.
The school must provide you on request a list of the
types and locations of education records collected, maintained, or used by the
school.
The school may not charge a fee to search for or to
retrieve information under this section, but may charge you a fee for copies of
records which are made for you under this rule if the fee does not effectively
prevent you from exercising your right to inspect and review those records.
The school must keep a record of parties obtaining
access to education records collected, maintained, or used under these rules
(except access by parents and authorized employees of the participating
school), including the name of the party, the date access was given, and the
purpose for which the party is authorized to use the records.
If you believe that information in education records
collected, maintained, or used under these rules is inaccurate or misleading or
violates the privacy or other rights of your child, you may request the school
that maintains the information to amend the information.
The school must decide whether to amend the
information in accordance with your request within a reasonable period of time
of receipt of the request. If the
school decides to refuse to amend the information in accordance with the
request, it must inform you of the refusal and of your right to a hearing as
set forth below.
The school shall, on request, provide an opportunity
for a hearing to challenge information in education records to insure that it
is not inaccurate, misleading, or otherwise in violation of the privacy or
other rights of your child.
If, as a result of the hearing, the school decides
that the information is inaccurate, misleading, or otherwise in violation of
the privacy or other rights of your child, it must amend the information
accordingly and so inform you in writing.
If, as a result of the hearing, the school decides
that the information is not inaccurate, misleading, or otherwise in violation
of the privacy or other rights of your child, it must inform you of the right
to place in the records it maintains on your child a statement commenting on
the information or setting forth any reasons you disagree with the decision of
the school. Any explanation placed in
your child's records under this section must be maintained by the school as
part of the records of your child as long as the record or contested portion is
maintained by the school; if the records of your child or the contested portion
is disclosed by the school to any party, the explanation must also be disclosed
to the party.
"Consent" means that: (a) You have been
fully informed of all information relevant to the activity for which consent is
sought, in your native language or other mode of communication; (b) You
understand and agree in writing to the carrying out of the activity for which
your consent is sought, and the consent describes that activity and lists the
records (if any) that will be released and to whom; and you understand that the
granting of consent is voluntary on your part and may be revoked at any time.
"Evaluation" means procedures used in accordance
with these rules to determine whether a child has a disability and the nature
and extent of the special education and supportive services that the child
needs. The term means procedures used
selectively with an individual child and does not include basic tests
administered to or procedures used with all students in a school, grade, or
class.
"Independent educational evaluation" means
an evaluation conducted by a qualified examiner who is not employed by the
school responsible for the education of the child in question. "Independent educational evaluation at
public expense" means that the school either pays for the full cost of the
evaluation or insures that the evaluation is otherwise provided at no cost to
you.