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ADMINISTRATIVE LETTER:  7

 

POLICY CODE:  J1A

 

TO:                  Superintendents of Schools, Special Education Directors, and CDS Directors

 

FROM:            Susan A. Gendron, Commissioner

 

DATE:             August 12, 2004

 

RE:                  Complaint Investigations

 

Last year the Office of Special Education Programs (OSEP) of the U.S. Department of Education completed a routine monitoring visit to verify that Maine’s Special Education programs were complying with federal requirements.  Subsequently, OSEP raised concerns that the Maine law, 20-A MRSA §7206, Investigation of Noncompliance, Subsection (4), Appeal, is not consistent with the Individuals with Disabilities Education Act (IDEA) federal regulations. 

 

Subsection (4), Appeal, states “A parent or a school administrative unit may challenge a complaint investigation report by requesting a due process hearing within 30 days of the receipt of the complaint investigation report.”

 

The federal regulations, 34 CFR 300.507(a)(1), states, “(1) A parent or a public agency may initiate a hearing on any of the matters described in Section 300.503(a)(1) and (2) (relating to the identification, evaluation, or educational placement of a child with a disability or the provision of FAPE to the child).” 

 

The U.S. Department of Education (OSEP) determined that the 30-day time limit in Maine law impermissibly limits the right to initiate a hearing.  In consultation with the Maine Attorney General’s Office, the Department concluded that it did not want to contest this inconsistency with OSEP, as it might adversely impact or delay the estimated $47,000,000 IDEA grant award for School Year 2004-2005.

 

The Commissioner has provided a written assurance with the eligibility documents filed with OSEP for both Part B (age 3-20) and Part C (age birth through 2) that no later than May 31, 2005, she will propose an amendment to 20-A MRSA §7206(4) to ensure that it is not used to deny or otherwise limit a party’s right to initiate a hearing under 34 CFR §300.507(a)(1) because the party raised the same issue in a State complaint or declined to appeal the State’s decision on the complaint within a particular time period.

 

Therefore, a proposed amendment to 20-A MRSA §7206(4) will be submitted to the Governor’s Office for consideration during the upcoming legislative session.  In the interim, the Commissioner has provided a written assurance that “ §7206(4) will not be used to deny or limit a party’s right to initiate a hearing.”  As a result a party may request a hearing on the same issues that were contained in the complaint investigation, even if the party did not file for an appeal within 30 days of receipt of the complaint investigation report, if the complaint investigation report was issued after July 1, 2003.

 

If you have any questions or concerns regarding this Administrative Letter, please contact David Stockford, Policy Director and Team Leader, Special Services, Maine Department of Education, 23 State House Station, Augusta, Maine, 04333-0023 or e-mail him at david.stockford@maine.gov or call him at (207) 624-6650.