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INFORMATIONAL LETTER: 18

POLICY CODE: JIA/IHBA

 

TO:                  Superintendents of Schools; CDS Site Directors; MADSEC; Disability Rights Center; Maine Parent Federation

FROM:            Susan A. Gendron, Commissioner of Education

DATE:             August 24, 2005

RE:                  Filing a request for a due process hearing (referred to in the Federal statute as a “due process complaint”)

The Individuals with Disabilities Education Improvement Act (IDEIA) of 2004 went into effect July 1, 2005. In Section 615, “Procedural Safeguards” of the IDEIA 2004 statute, subsection (b) states,

The procedures required by this section shall include the following: …

(6) An opportunity for any party to present a complaint –

(A) with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child; and

(B) which sets forth an alleged violation that occurred not more than 2 years before the date the parent or public agency knew or should have known about the alleged action that forms the basis of the complaint, or, if the State has an explicit time limitation for presenting such a complaint under this part, in such time as the State law allows, except that the exceptions to the timeline described in subsection (f)(3)(D) shall apply to the timeline described in this subparagraph.

(7)(A) Procedures that require either party, or the attorney representing a party, to provide due process complaint notice in accordance with section (c)(2) (which shall remain confidential) –

(i) to the other party, in the complaint filed under paragraph (6), and forward a copy of such notice to the State educational agency; and

(ii) that shall include-

(I) the name of the child, the address of the residence of the child (or available contact information in the case of a homeless child), and the name of the school the child is attending;

(II) 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;

(III) a description of the nature of the problem of the child relating to such proposed initiation or change, including facts relating to such problem; and

(IV) a proposed resolution of the problem to the party at the time.

(B) A requirement that a party may not have a due process hearing until the party, or the attorney representing the party, files a notice that meets the requirements of subparagraph (A)(ii).

In subsection (b)(7)(A)(i) the Act implies that, the “other party” must be the first recipient of a request for a due process hearing; then the initiating party must forward a copy of the notice of request for a due process hearing to the State educational agency (SEA). Therefore, the official date of receipt of a request for a due process hearing is the date it is received: (1) by a local educational agency (LEA) (also called a school administrative unit in Maine) from a parent; or (2) by a parent from an LEA. In other words, the “clock” for all of the IDEIA statutory requirements around hearings starts “ticking” when the “other party” (LEA or parent) receives the notice of a request for a due process hearing. Even though the revised IDEIA clearly puts the burden of notifying the SEA on the party who initiates the complaint (either LEA or parents), because the date on which the complaint is received is critical for setting the “clock” in motion, the Due Process Office (DPO) expects the LEA to notify it of either the receipt of a notice of a request for a due process hearing from a parent or the receipt by a parent of the LEA’s request for a due process hearing.

Thus, an LEA must keep close track of: (1) the date on which notice of a request for a due process hearing is received from a parent and immediately send a telephone facsimile (FAX) copy of the notice, with the date stamp received indicated on the notice, to the SEA; and, (2) the date on which notice of an LEA-initiated due process hearing is received by a parent (an LEA may want to consider utilization of a postal service receipt confirmation for notices that apply to this). This tracking would involve the LEA providing information about this to all support staff persons who open surface mail to the LEA, and receive FAXes for the LEA, and hand-delivered documents in the LEA.

Under the Individuals with Disabilities Education Act (IDEA) of 1997, the DPO has accepted, up through the end of business June 30, 2005, FAXed copies of notices of request for due process hearings and has counted the FAX receipt date as the official receipt date of the request. Under the Individuals with Disabilities Education Improvement Act (IDEIA) of 2004, after July 1, 2005, LEAs must follow this acceptance of FAXed copies of such notices and count the FAX receipt date as the official receipt date.

The DPO is enclosing a copy of the new Dispute Resolution Request (DRR) form for hearings for LEAs to have on file and distribute to parents who might express interest in filing for a due process hearing. Although, under the IDEA of 1997, the DPO has encouraged parents, through the end of business June 30, 2005, to use the DRR form when filing for a due process hearing and has received a large majority of hearing requests via DRR forms, under the IDEIA of 2004, after July 1, 2005, if an LEA receives a written notice of a request for a due process hearing, other than on a DRR form, and the notice contains the required notice contents (subsection (b)(7)(A)(ii)), it must be accepted and date stamp received as a request.

If a recipient of this memorandum has questions about the content of this memo, please contact the DPO by e-mail at patricia.neumeyer@maine.gov or by phone at 624-6644.

 

Enclosure: Hearing Request Form