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TO:                  Superintendents

                        Directors of Special Education


                        Superintendents of State Correctional Facilities


FROM:            Susan A. Gendron



DATE:              July 30, 2003


SUBJECT:       Procedural Safeguards Notice


The U.S. Department of Education, Office of Special Education Programs, has determined that the Procedural Safeguards Notice at Sec. 12.11 of Maine Special Education Regulations, Chapter 101 does not include all of the language required under the federal regulation 300.504.  Beginning with the start of the 2003-04 school year each school administrative unit must incorporate the additional language below into the Procedural Safeguards Notices distributed to parents and guardians in accordance with notice provisions in Ch. 101.


1.            Independent educational evaluation:  If an independent educational 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, are the same as the criteria that the school administrative unit uses when it initiates an evaluation, to the extent those criteria are consistent with your (the parent’s) right to an independent evaluation.


2.            Parental consent:  Consent for initial evaluation may not be construed as consent for initial placement.


3.            Exceptions to reduction of reimbursement for failure to provide notice of a unilateral placement:  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.


4.            Mediation:  The Department of Education maintains a list of qualified mediators available to be assigned when you and the school request the use of mediation if you are unable to agree upon the identification, evaluation,  educational program, placement or the provision of a free, appropriate public education to your son or daughter.


5.         Due Process Hearings:  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.

6.         Due Process Hearings:  You have a right to receive, at your request, an electronic copy of the findings of fact and decisions of the hearing officer


7.            Attorney’s Fees:  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.


8.            Disciplinary Procedures:  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 while at school or a school function under the jurisdiction of the State or any local school.


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 place, 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 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 be 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 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.


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 had 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 information 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 law 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.


9.         Civil Action:  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 action before filing a civil action under these laws seeking relief that is also available through  those procedures.


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.