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

Filing a due process complaint (Sec. 300.507)

Comment: Some commenters recommended changing the section heading in Sec. 300.507 from "Filing a due process complaint" to "Requesting a due process hearing" to avoid confusion with the State complaint process. A few commenters requested that the regulations clarify that a request for due process hearing may be made regarding any matter pertaining to the identification, evaluation, educational placement, or provision of FAPE for a child.

Discussion: We do not believe that changing the heading to this section is necessary or that further clarification is needed regarding the matters about which a due process complaint can be filed. Section 300.507(a) and section 615(b)(6)(A) of the Act are clear that a parent or public agency may file a due process complaint on any matter relating to the identification, evaluation, or educational placement of the child, or the provision of FAPE to the child. A party must file a due process complaint in accordance with Sec. Sec. 300.507 through 300.508 prior to the opportunity for a due process hearing under this part. If the LEA does not resolve the complaint to the satisfaction of the parents during the resolution process, the disputed issues that were raised in the due process complaint would be the subject of a due process hearing.

Changes: None.

Comment: Several commenters objected to the removal of current Sec. 300.507(a)(2), which requires the public agency to inform the parent about the availability of mediation when a hearing is initiated. The commenters stated that the notice about the availability of mediation should be expanded, not eliminated.

Discussion: Section 615(e)(1) of the Act expands the availability of mediation by requiring public agencies to offer mediation to resolve disputes about any matter under this part. Current Sec. 300.507(a)(2) was replaced by Sec. 300.506(a), which incorporates section 615(e)(1) of the Act, and requires mediation to be available to resolve disputes involving any matter under this part, including matters arising prior to the filing of a due process complaint. Section 300.506(a), therefore, expands the availability of mediation beyond that required in current Sec. 300.507(a)(2). Therefore, there is no need to add the provision requested by the commenter.

Changes: None.

Comment: A few commenters stated that the requirement in Sec. 300.507(a) places the burden on the parent to file a due process complaint.

Discussion: Section 300.507(a), consistent with section 615(b)(6) of the Act, permits either a parent or a public agency to file a due process complaint. Section 615(b)(7) of the Act is clear that a parent or a public agency must file a due process complaint notice before a due process hearing may commence.

Changes: None.

Comment: Many commenters supported the time limit for submitting a due process complaint. Some commenters stated that the regulations should clarify that, while States may adopt an explicit statute of limitations that is shorter than two years, they may not adopt a time period that is longer than two years. Other commenters recommended that the regulations clarify that if a State has an explicit time limit for requesting a due process hearing the State time limit must be reasonable. A few commenters recommended requiring States to conduct public hearings and provide an opportunity for public comment before the State establishes a reasonable time limit for filing a due process complaint. Still other commenters stated that the regulations should include a statement that common-law directives regarding statutes of limitations should not override the Act or State regulatory time limits.

Some commenters expressed concern that reducing the statute of limitations from three years to two years makes it impossible to protect the rights of children. The commenters stated that parents and school districts will be discouraged from participating in alternative dispute resolution options because of the short timeframe for filing a due process complaint.

Discussion: Section 300.507(a)(2) and section 615(b)(6)(B) of the Act are clear that a due process complaint must allege a violation that occurred not more than two years before the date the parent or public agency knew, or should have known, about the alleged action that forms the basis of the due process complaint, or if the State has an explicit time limit for filing a due process complaint, in the time allowed by that State law.

There is nothing in the Act that would preclude a State from having a time limit for filing a complaint that is shorter or longer than two years. We believe that the Act leaves this decision to the States. A State choosing to adopt a time limit for requesting a hearing, other than the two year time limit in the Act, must comply with the public participation requirements in Sec. 300.165 and section 612(a)(19) of the Act, which require that prior to the adoption of any policies and procedures needed to comply with Part B of the Act (including any amendments to such policies and procedures), the State must ensure that there are public hearings, adequate notice of the hearings, and an opportunity for public comment. However, if a State already has an explicit time limit in statute or regulation, and has met the requirements in Sec. 300.165 and section 612(a)(19) of the Act in establishing that requirement, new public hearings and public comment periods are not required.

It is not necessary to clarify that common-law directives regarding statutes of limitations should not override the Act or State regulatory timelines, as the commenters recommended, because the Act and these regulations prescribe specific limitation periods which supersede common law directives in this regard.

Changes: None.

Comment: One commenter suggested that the regulations allow extensions of the statute of limitations when a violation is continuing or the parent is requesting compensatory services for a violation that occurred not more than three years prior to the date the due process complaint is received.

Discussion: Section 615(f)(3)(D) of the Act provides explicit exceptions to the timeline for requesting a due process hearing. Section 300.511(f) incorporates these provisions. These exceptions do not include when a violation is continuing or where a parent is requesting compensatory services for a violation that occurred not more than three years from the date that the due process complaint was filed. Therefore, we do not believe that the regulations should be changed.

Changes: None.

Comment: One commenter suggested removing Sec. 300.507(b), which requires a public agency to inform parents of any free or low-cost legal and other relevant services in the area. The commenter stated that schools should voluntarily provide this information to parents. One commenter requested clarification regarding the meaning of "other relevant services" about which the public agency must inform parents. Another commenter requested that public agencies post information about free or low-cost legal services on their Web sites.

Discussion: The provisions in Sec. 300.507(b) are protected by section 607(b) of the Act and require the public agency to inform parents about the availability of free or low-cost legal and other relevant services, if the parent requests such information or the parent or the agency requests a due process hearing. Generally, "other relevant services" refers to other sources that parents could consult for information, such as parent centers.

The Department believes that parents should have easy access to information about any free or low-cost legal and other relevant services in the area. Making the information available on the State's Web site may be a good way of providing parents easily accessible information, but it may not be effective in all cases. Each State is in the best position to determine whether including this information on its Web site would be helpful for parents. Therefore, we decline to add this as a requirement in these regulations, as recommended by the commenter.

Changes: None.

Comment: None.

Discussion: Upon internal review, we determined that it would be clearer for Sec. 300.507(b)(2) to state that the parents or the agency files a due process complaint, rather than requests a hearing under Sec. 300.507.

Changes: We have amended the language of Sec. 300.507(b)(2) to refer to filing a due process complaint rather than requesting a hearing.