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

Due process complaints and State complaints (Sec. 300.140)

Comment: Several commenters expressed concern that the right of parents of children with disabilities enrolled by their parents in private elementary schools and secondary schools to file a due process complaint against an LEA is limited to filing a due process complaint that an LEA has failed to comply with the child find and evaluation requirements, and not an LEA's failure to provide special education and related services as required in the services plan. A few commenters recommended that the regulations clarify whether the parent should file a due process complaint with the LEA of residence or with the LEA where the private school is located.

Discussion: Section 615(a) of the Act specifies that the procedural safeguards of the Act apply with respect to the identification, evaluation, educational placement, or provision of FAPE to children with disabilities. The special education and related services provided to parentally-placed private school children with disabilities are independent of the obligation to make FAPE available to these children.

While there may be legitimate issues regarding the provision of services to a particular parentally-placed private school child with a disability an LEA has agreed to serve, the due process provisions in section 615 of the Act and Sec. Sec. 300.504 through 300.519 do not apply to these disputes, because there is no individual right to these services under the Act. Disputes that arise about these services are properly subject to the State complaint procedures under Sec. Sec. 300.151 through 300.153.

Child find, however, is a part of the basic obligation that public agencies have to all children with disabilities, and failure to locate, identify, and evaluate a parentally-placed private school child would be subject to due process. Therefore, the due process provisions in Sec. Sec. 300.504 through 300.519 do apply to complaints that the LEA where the private school is located failed to meet the consent and evaluation requirements in Sec. Sec. 300.300 through 311.

In light of the comments received, we will clarify in Sec. 300.140 that parents of parentally-placed private school children with disabilities may file a due process complaint with the LEA in which the private school is located (and forward a copy to the SEA) regarding an LEA's failure to meet the consent and evaluation requirements in Sec. Sec. 300.300 through 300.311. We also will clarify that a complaint can be filed with the SEA under the State complaint procedures in Sec. Sec. 300.151 through 300.153 that the SEA or LEA has failed to meet the requirements in Sec. Sec. 300.132 through 300.135 and Sec. Sec. 300.137 through 300.144. There would be an exception, however, for complaints filed pursuant to Sec. 300.136. Complaints under Sec. 300.136 must be filed in accordance with the procedures established by each State under Sec. 300.136.

Changes: Proposed Sec. 300.140(a)(2) has been redesignated as new paragraph (b). A new paragraph (b)(2) has been added to this section to clarify that any due process complaint regarding the evaluation requirements in Sec. 300.131 must be filed with the LEA in which the private school is located, and a copy must be forwarded to the SEA. Proposed Sec. 300.140(b) has been redesignated as new paragraph (c), and has been revised to clarify that a complaint that the SEA or LEA has failed to meet the requirements in Sec. Sec. 300.132 through 300.135 and Sec. Sec. 300.137 through 300.144 can be filed with the SEA under the State complaint procedures in Sec. Sec. 300.151 through 300.153. Complaints filed pursuant to Sec. 300.136 must be filed with the SEA under the procedures established under Sec. 300.136(b).

Comment: A few commenters requested clarification as to whether a parent of a parentally-placed private school child should request an independent educational evaluation at public expense under Sec. 300.502(b) with the LEA of residence or the LEA where the private school is located.

Discussion: We do not believe that this level of detail needs to be included in the regulation. If a parent of a parentally-placed child disagrees with an evaluation obtained by the LEA in which the private school is located, the parent may request an independent educational evaluation at public expense with that LEA.

Changes: None.