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U.S. Department of Education: Promoting Educational Excellence for all Americans

Subpart E--Procedural Safeguards

Section 300.502, regarding independent educational evaluations, has been revised, as follows:[select]

(1) A new Sec. 300.502(b)(5) has been added to make clear that a parent is entitled to only one independent educational evaluation at public expense each time the public agency conducts an evaluation with which the parent disagrees.

(2) Section 300.502(c) has been changed to clarify that if a parent obtains an independent evaluation at public expense or shares with the public agency an evaluation obtained at private expense, the public agency must consider the evaluation, if it meets agency criteria, in any decision made with respect to the provision of FAPE to the child.

Section 300.504 (Procedural safeguards notice) has been revised, as follows:[select]

(1) Paragraph (a)(2) of Sec. 300.504 has been changed to add that a copy of the procedural safeguards notice must be given upon receipt of the first due process complaint under Sec. 300.507 in a school year, as well as upon receipt of the first State complaint under Sec. 300.151 through 300.153.

(2) A new Sec. 300.504(a)(3) has been added to provide that the notice must be given to the parents of a child with a disability in accordance with the discipline procedures in Sec. 300.530(h).

Section 300.506(b), regarding the requirements for mediation, has been revised by (1) removing the provision about the "confidentiality pledge," in proposed paragraph (b)(9), because it is no longer required under the Act, and (2) changing paragraph (b)(8), regarding the prohibition against using discussions that occur in the mediation process, to clarify that "civil proceedings" includes any Federal court or State court of a State receiving assistance under this part.[select]

Section 300.509, regarding model forms to assist parents and public agencies in filing due process complaints and parents and other parties in filing State complaints, has been revised to add, with respect to due process complaints, "public agencies," and with respect to State complaints, "other parties," as well as parents, and to clarify that (1) while each SEA must develop model forms, the SEA or LEA may not require the use of the forms, and (2) parents, public agencies, and other parties may either use the appropriate model form, or another form or other document, so long as the form or document meets, as appropriate, the requirements for filing a due process complaint or a State complaint.[select]

Section 300.510 (Resolution process) has been revised, as follows:[select]

(1) Section 300.510(b)(1), regarding the resolution period, has been changed to state that a due process hearing "may occur" (in lieu of "must occur") by the end of the resolution period, if the parties have not resolved the dispute that formed the basis for the due process complaint.

(2) A new Sec. 300.510(b)(3) has been added to provide that, except where the parties have jointly agreed to waive the resolution process or to use mediation (notwithstanding Sec. 300.510(b)(1) and (2)), the failure of a parent filing a due process complaint to participate in the resolution meeting will delay the timelines for the resolution process and due process hearing until the meeting is held.

(3) A new Sec. 300.510(b)(4) has been added to provide that if an LEA is unable to obtain the participation of the parent in the resolution meeting after reasonable efforts have been made, and documented using the procedures in Sec. 300.322(d), the LEA may, at the conclusion of the 30-day resolution period, request that a hearing officer dismiss the parent's due process complaint.

(4) A new paragraph (b)(5) of Sec. 300.510 has been added to provide that, if the LEA fails to hold the resolution meeting within 15 days of receiving notice of a parent's due process complaint or fails to participate in the resolution meeting, the parent may seek the intervention of a hearing officer to begin the due process hearing timelines.

(5) A new Sec. 300.510(c) (Adjustments to the 30-day resolution period) has been added that specifies exceptions to the 30-day resolution period (e.g., (A) both parties agree in writing to waive the resolution meeting; (B) after either the mediation or resolution meeting starts but before the end of the 30-day period, the parties agree in writing that no agreement is possible; or (C) if both parties agree in writing to continue the mediation at the end of the 30-day resolution period, but later, the parent or public agency withdraws from the mediation process). Subsequent paragraphs have been renumbered accordingly.

(6) Paragraph (d)(2) of Sec. 300.510 (proposed paragraph(c)(2)), regarding the enforceability of a written settlement agreement in any State court of competent jurisdiction or in a district court of the United States, has been expanded to add the SEA, if the State has other mechanisms or procedures that permit parties to seek enforcement of resolution agreements, pursuant to a new Sec. 300.537.

The exception clause in Sec. 300.512(a)(1), regarding the right to be represented by non-attorneys, has been revised to apply to any party to a hearing, not just parents. [select]

Section 300.513(a) (Decision of hearing officer) has been revised by (1) changing the paragraph title to read "Decision of hearing officer on the provision of FAPE," and (2) clarifying that a hearing officer's determination of whether a child received FAPE must be based on substantive grounds.[select]

Section 300.515(a), regarding timelines and convenience of hearings and reviews, has been revised to include a specific reference to the adjusted time periods described in Sec. 300.510(c).[select]

Section 300.516(b), regarding the 90-day time limitation from the date of the decision of the hearing to file a civil action, has been revised to provide that the 90-day period begins from the date of the decision of the hearing officer or the decision of the State review official.[select]

Section 300.518 (Child's status during proceedings) has been revised by adding a new paragraph (c), which provides that if a complaint involves an application for initial services under this part from a child who is transitioning from Part C of the Act to Part B and is no longer eligible for Part C services because the child has turned 3, the public agency is not required to provide the Part C services that the child had been receiving. If the child is found eligible for special education and related services under Part B and the parent consents to the initial provision of special education and related services under Sec. 300.300(b), then the public agency must provide those special education and related services that are not in dispute between the parent and the public agency.[select]

Section 300.520(b), regarding a special rule about the transfer of parental rights at the age of majority, has been revised to more clearly state that a State must establish procedures for appointing the parent of a child with a disability, or if the parent is not available, another appropriate individual, to represent the educational interests of the child throughout the child's eligibility under Part B of the Act if, under State law, a child who has reached the age of majority, but has not been determined to be incompetent, can be determined not to have the ability to provide informed consent with respect to the child's educational program.[select]

Discipline Procedures[select]

Section 300.530(d)(1)(i), regarding services, has been revised to be consistent with section 615(k)(1)(D)(i) of the Act, by adding a reference to the FAPE requirements in Sec. 300.101(a).

Section 300.530(d)(4), regarding the removal of a child with a disability from the child's current placement for 10 school days in the same school year, has been revised to remove the reference to school personnel, in consultation with at least one of the child's teachers, determining the location in which services will be provided.

Section 300.530(d)(5), regarding removals that constitute a change of placement under Sec. 300.536, has been revised to remove the reference to the IEP Team determining the location in which services will be provided.

A new Sec. 300.530(e)(3), has been added to provide that, if the LEA, the parent, and members of the child's IEP Team determine that the child's behavior was the direct result of the LEA's failure to implement the child's IEP, the LEA must take immediate steps to remedy those deficiencies.

Section 300.530(h), regarding notification, has been changed to specify that, on the date on which a decision is made to make a removal that constitutes a change in the placement of a child with a disability because of a violation of a code of student conduct, the LEA must notify the parents of that decision, and provide the parents the procedural safeguards notice described in Sec. 300.504.

Section 300.532 (Appeal) has been revised, as follows:

(1) Paragraph (a) of Sec. 300.532, regarding the conditions in which the parent of a child with a disability or an LEA may request a hearing, has been modified to clarify that the hearing is requested by filing a complaint pursuant to Sec. Sec. 300.507 and 300.508(a) and (b).

(2) Section 300.532(b)(3) has been changed to more definitively provide that if the LEA believes that returning the child to his or her original placement is substantially likely to result in injury to the child or others.

(3) Section 300.532(c)(3), regarding an expedited due process hearing, has been adjusted to provide that unless the parents and an LEA agree in writing to waive a resolution meeting, or agree to use the mediation process described in Sec. 300.506, the resolution meeting must occur within seven days of receiving notice of the due process complaint, and the hearing may proceed within 15 days of receipt of the due process complaint unless the matter has been resolved to satisfaction of both parties.

(4) Proposed Sec. 300.532(c)(4), regarding the two-day timeframe for disclosing information to the opposing party prior to an expedited due process hearing, has been removed.

Section 500.536(a)(2)(ii) (proposed Sec. 300.536(b)(2)) has been revised to remove the requirement that a child's behavior must have been a manifestation of the child's disability before determining that a series of removals constitutes a change in placement under Sec. 300.536. Paragraph (a)(2)(ii) has also been amended to reference the child's behavior in "previous" incidents that resulted in the series of removals.

A new Sec. 300.536(b) has been added to clarify that the public agency (subject to review through the due process and judicial proceedings) makes the determination, on a case-by-case basis, whether a pattern of removals constitutes a change in placement and that the determination is subject to review through due process and judicial determinations.

A new Sec. 300.537 (State enforcement mechanisms) has been added to clarify that notwithstanding Sec. 300.506(b)(7) and Sec. 300.510(c)(2), which provide for judicial enforcement of a written agreement reached as a result of a mediation or resolution meeting, nothing in this part would prevent the SEA from using other mechanisms to seek enforcement of that agreement, provided that use of those mechanisms is not mandatory and does not delay or deny a party the right to seek enforcement of the written agreement in a State court of competent jurisdiction or in a district court of the United States.