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

Due process complaint (Sec. 300.508)

Comment: A few commenters expressed concern regarding the use of similar terminology for due process complaints and State complaints. Some commenters stated that the State complaint procedures may mistakenly be considered a pre-requisite to commencing a due process hearing. A few commenters requested changing the heading in Sec. 300.508 from "Due process complaint" to "Requesting a due process hearing" to avoid unnecessary confusion.

Discussion: Section 615(b)(7)(B) of the Act states that a party may not have a hearing on a due process complaint or engage in a resolution meeting until the party, or the attorney representing the party, files a due process complaint that meets the requirements in Sec. 300.508(b). There is no requirement that a party file a State complaint prior to filing a due process hearing, and we believe that the regulation is sufficiently clear about this point. Renaming this section "Requesting a due process hearing" could incorrectly suggest that there is no requirement to file a due process complaint prior to a due process hearing. Therefore, we decline to change the name of the heading, as requested by the commenters.

Changes: None.

Comment: A few commenters requested clarification regarding when a determination about the sufficiency of a due process complaint must be made and who makes the determination. One commenter stated that any party who alleges that a notice is insufficient should be required to state in writing the basis for that belief, including the information that is missing or inadequate.

Many commenters recommended removing the phrase "or engage in a resolution meeting" in Sec. 300.508(c). The commenters expressed concern that requiring parties to engage in a resolution meeting before a due process hearing will delay the due process hearing, particularly when the parties must wait for a hearing officer to determine the sufficiency of a due process complaint before holding a resolution meeting. One commenter requested that the regulations state that the public agency may not deny or delay a parent's right to a due process hearing. A few commenters recommended that the regulations clarify that a resolution meeting cannot be held until the complaint is deemed sufficient.

Some commenters questioned the appropriateness of requiring a substantive response to a due process complaint during a resolution meeting before the complaint is determined to be sufficient. Other commenters asked whether the 10-day timeline for the party receiving the complaint to respond to the due process complaint resets when a party deems a due process complaint to be insufficient or when a hearing officer rules that the complaint is insufficient.

One commenter asked whether two resolution meetings are required when the sufficiency of the complaint is challenged, and whether the 30-day resolution period is reset by an insufficient complaint. The same commenter asked whether the resolution meeting should be scheduled within 50 days of receiving the parent's original due process complaint, if insufficiency has been determined or is pending.

Discussion: Section 300.510(a), consistent with section 615(f)(1)(B) of the Act, requires the LEA, within 15 days of receiving notice of the parent's due process complaint, and prior to the initiation of a hearing, to convene a meeting with the parent and the relevant members of the IEP Team to discuss the parent's due process complaint so that the LEA has an opportunity to resolve the dispute. Section 300.508(d)(1), consistent with section 615(c)(2)(A) and (D) of the Act, provides that the due process complaint must be deemed sufficient unless the party receiving the due process complaint notifies the hearing officer and the other party in writing, within 15 days of receipt of the due process complaint, that the due process complaint does not meet the requirements in Sec. 300.508(b). If the party receiving the due process complaint notice believes the complaint is insufficient, the hearing officer determines the sufficiency of the complaint. There is no requirement that the party who alleges that a notice is insufficient state in writing the basis for the belief.

Section 300.508(d)(2), consistent with section 615(c)(2)(D) of the Act, states that the hearing officer must make a determination within five days of receiving notice that the party believes the complaint is insufficient and immediately notify the parties in writing of that determination.

If the hearing officer determines that the notice is not sufficient, the hearing officer's decision will identify how the notice is insufficient, so that the filing party can amend the notice, if appropriate. We are not further regulating on how the sufficiency claim is raised, however, as we believe that this matter is more appropriately addressed by each State, in light of their other hearing procedures.

Section 615(b)(7)(B) of the Act, provides that a party may not have a hearing on a due process complaint until the party or the party's attorney files a due process complaint that meets the content standards in section 615(b)(7)(A) of the Act, which are reflected in Sec. 300.508(b). If the complaint is determined to be insufficient and is not amended, the complaint could be dismissed.

We agree with S. Rpt. No. 108-185, p. 38, which states that the resolution meeting should not be postponed when the LEA believes that a parent's complaint is insufficient. While the period to file a sufficiency claim is the same as the period for holding the resolution meeting, parties receiving due process complaint notices should raise their sufficiency claims as early as possible, so that the resolution period will provide a meaningful opportunity for the parties to resolve the dispute.

In order to resolve ambiguity on the relationship of a sufficiency claim to the resolution meeting, we are revising Sec. 300.508(c) to remove the reference, which is not statutory, to the resolution meeting. There is no need to hold more than one resolution meeting, impose additional procedural rules, or otherwise adjust the resolution timeline.

We do not believe it is necessary to add language to the regulations stating that a public agency may not deny or delay a parent's right to a due process hearing. We believe that the timelines and requirements for filing a due process complaint, and the timelines for hearing officer decisions regarding the sufficiency of a complaint will safeguard against due process hearings being unfairly or unnecessarily delayed.

Changes: We have removed the words "or engage in a resolution meeting" in Sec. 300.508(c) for clarity.

Comment: One commenter stated that the timeline for filing a due process hearing should begin when the due process complaint is deemed sufficient. However, some commenters stated that the timeline should begin when a party files a due process complaint notice. Several commenters stated that a hearing officer should be allowed to determine whether an amended complaint relates to the original complaint for purposes of determining the time limit for filing a due process complaint.

Discussion: We do not believe that a separate filing of a due process complaint notice and due process complaint, with separate timelines, is required by the Act, as those distinctions would be unnecessarily burdensome and cumbersome. Section 615(b)(7)(A)(i) of the Act describes the due process complaint notice as being filed "in the complaint," and we have organized our regulation consistent with this provision.

Section 300.507(a)(2), consistent with section 615(b)(6)(B) of the Act, states that a due process complaint must allege a violation that occurred not more than two years (or the time allowed by State law), 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. Section 615(f)(3)(D) of the Act provides exceptions to the timeline if a parent was prevented from filing a due process complaint, which are reflected in Sec. 300.511(f). It is up to hearing officers to determine whether a specific complaint is within the allowable timeline, including whether an amended complaint relates to a previous complaint.

Changes: None.

Comment: Many commenters stated that the process for amending a due process complaint is complex and unnecessarily complicated, and will force parents to seek the services of an attorney and make the relationship between parties more adversarial. One commenter recommended allowing a hearing request to be amended up to five days before the parties meet to set a hearing schedule, rather than five days before the hearing.

Discussion: We do not agree that the process for amending a due process complaint is complex and unnecessarily complicated. Section 300.508(d)(3) and section 615(c)(2)(E) of the Act allow the party filing the due process complaint an opportunity to amend the complaint to ensure that the complaint accurately sets out their differences with the other party. The complaint can be amended only if the parties mutually agree in writing to the amendment and are given the opportunity for a resolution meeting, or the hearing officer grants permission to amend the complaint at any time not later than five days before the due process hearing begins. This process ensures that the parties involved understand and agree on the nature of the complaint before the hearing begins. We, therefore, decline to change these regulations, and see no reason to change the timeline for amending a complaint in the manner suggested by the commenter.

Section 300.508(d)(4) and section 615(c)(2)(E)(ii) of the Act provide that when a due process complaint is amended, the timelines for the resolution meeting and the time period for resolving the complaint begin again with the filing of the amended due process complaint.

Changes: None.

Comment: Some commenters stated that parents who are filing a due process complaint without the assistance of an attorney should have more flexibility when the sufficiency of the complaint is determined. The commenters stated that parents should be able to receive assistance from their State's due process office to complete the due process complaint so that it meets the standard for sufficiency.

Discussion: To assist parents in filing a due process complaint, Sec. 300.509 and section 615(b)(8) of the Act require each State to develop a model due process complaint form. While there is no requirement that States assist parents in completing the due process complaint form, resolution of a complaint is more likely when both parties to the complaint have a clear understanding of the nature of the complaint. Therefore, the Department encourages States, to the extent possible, to assist a parent in completing the due process complaint so that it meets the standards for sufficiency. However, consistent with section 615(c)(2)(D) of the Act, the final decision regarding the sufficiency of a due process complaint is left to the discretion of the hearing officer.

Changes: None.

Comment: One commenter stated that parents who file a due process complaint without the assistance of an attorney should be allowed to amend their complaint without having to start the process all over again, as long as their statement provides the information LEAs need to proceed toward resolution. A few commenters stated that a formal amendment should not be required for minor insufficiencies, such as leaving out the child's address or name of the child's school, especially if the LEA already has this information.

Many commenters recommended that a hearing officer be allowed to permit a party to amend the due process complaint, unless doing so would prejudice the opposing party. The commenters stated that, at a minimum, the regulations should state that hearing officers must follow the standard that permits them to freely grant amendments, regardless of timelines, when justice so requires.

Discussion: Section 300.508(d)(3), consistent with section 615(c)(2)(E) of the Act, provides that a party may only amend its complaint in two circumstances: (1) if the other party consents in writing to the amendment and is given the opportunity to resolve the complaint in a resolution meeting convened under Sec. 300.510, or (2) if the hearing officer grants permission for the amendment, but only at a time not later than five days before the hearing begins. Therefore, we do not believe further clarification is necessary. With regard to parents who file a due process complaint without the assistance of an attorney or for minor deficiencies or omissions in complaints, we would expect that hearing officers would exercise appropriate discretion in considering requests for amendments.

Changes: None.

Comment: One commenter suggested adding language to the regulations stating that an LEA may request and, as a matter of right, be granted one 10-day extension to respond to a parent's due process complaint.

Discussion: Section 615(c)(2)(B)(ii) of the Act provides that the receiving party must provide the party that filed the complaint a response to the complaint within 10 days of receiving the complaint. The Act makes no provision for extending this time period, and we do not believe it would be appropriate to amend the regulations in this manner. Allowing an LEA additional time to respond to a parent's due process complaint could be used to unduly delay the due process hearing, to the detriment of the interests of the child.

Changes: None.

Comment: A few commenters expressed concern that the regulations appear to require parents to be represented by an attorney in due process proceedings and requested that the regulations permit a party in a due process hearing to be represented by a non-attorney advocate. The commenters stated that this would allow more uniform access to assistance across all socio-economic groups and decrease the formality of hearings.

Discussion: We are considering the issue of non-attorney representation of parties in a due process hearing under the Act, in light of State rules concerning the unauthorized practice of law. We anticipate publishing a notice of proposed rulemaking in the near future seeking public comment on this issue.

Changes: None.

Comment: One commenter requested clarification regarding whether there is legal significance or consequence to a responding party who fails to file the required response to a due process complaint or to an LEA that fails to send both the prior written notice and the due process complaint notice.

Discussion: The Act does not establish consequences for parents who are the receiving parties to complaints if they fail to respond to a due process complaint notice. However, either party's failure to respond to, or to file, the requisite notices could increase the likelihood that the resolution meeting will not be successful in resolving the dispute and that a more costly and time-consuming due process hearing will occur.

Changes: None.

Comment: One commenter recommended that the regulations specifically state that a party has a right to seek immediate intervention from a hearing officer to resolve pre-hearing issues and disputes.

Discussion: Section 300.508, consistent with section 615(b) and (c) of the Act, sets out the requirements and timelines for filing a due process complaint. We do not believe the further clarification requested by the commenter is necessary because the due process complaint procedures are intended to resolve pre-hearing issues and disputes and allow parties to seek immediate resolution by a hearing officer, when necessary, regarding the sufficiency of a due process complaint and amendments to a complaint.

Changes: None.

Comment: One commenter requested that the regulations require a hearing officer to dismiss a complaint when the hearing officer determines that all issues and allegations are insufficient to go forward.

Discussion: We do not believe that Federal regulations on this matter are required, as we believe that States and individual hearing officers are in a better position to decide on the utility of, or need for, dismissals.

Changes: None.