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

Appeal (Sec. 300.532)

Comment: Numerous commenters requested clarifying in the regulations that the public agency has the burden to prove to a hearing officer that removing the child is necessary because maintaining the current placement is substantially likely to result in injury to self or others.

Discussion: Although the Act does not address allocation of the burden of proof in due process hearings brought under the Act, the U.S. Supreme Court recently addressed the issue. In Schaffer, the Court first noted that the term "burden of proof" is commonly held to encompass both the burden of persuasion (i.e., which party loses if the evidence is closely balanced) and the burden of production (i.e., the party responsible for going forward at different points in the proceeding). In Schaffer, only the burden of persuasion was at issue. The Court held that the burden of persuasion in a hearing challenging the validity of an IEP is placed on the party on which this burden usually falls--on the party seeking relief--whether that is the parent of the child with a disability or the LEA. Where the public agency has requested that a hearing officer remove a child to an interim alternative educational setting, the burden of persuasion is on the public agency. Since Supreme Court precedent is binding legal authority, further regulation in this area is unnecessary.

Changes: None.

Comment: Many commenters requested that the regulations clarify that the LEA has the burden of proof in determining whether the child's behavior was or was not a manifestation of the child's disability and that the IEP was appropriate and properly implemented. Other commenters expressed concern that the regulations, as written, put the burden on the parent to prove either that the conduct was caused by or had a direct and substantial relationship to the child's disability or that the IEP was not being implemented.

Discussion: The concept of burden of proof is not applicable to the manifestation determination, which does not occur in a hearing under the Act. Under Sec. 300.530(e), the LEA, the parent, and relevant members of the IEP Team (as determined by the parent and the LEA) are responsible for determining whether the child's behavior is a manifestation of the child's disability, by conducting a fair inquiry into the issues posed by Sec. 300.530(e)(1)(i) and (ii). If the parent disagrees with the manifestation determination, they have the right to appeal that decision by requesting a due process hearing under Sec. 300.532. At the point a due process hearing is requested, the concept of burden of proof would be applicable. As stated above, the Supreme Court determined in Schaffer that the burden of proof ultimately is allocated to the moving party.

Changes: None.

Comment: A few commenters recommended requiring that the hearing officer must consider the appropriateness of the child's current placement; consider whether the public agency has made reasonable efforts to minimize the risk of harm in the child's current placement, including the use of supplementary aids and services; and determine that the interim alternative educational setting meets specified requirements.

Discussion: We are not making changes to the regulations, regarding a hearing officer's decision-making, to require a hearing officer to consider such factors as those suggested by the commenters because a hearing officer must have the ability to conduct hearings and render and write decisions in accordance with appropriate, standard legal practice and exercise his or her judgment in the context of all the factors involved in an individual case.

Changes: None.

Comment: Some commenters recommended clarifying the reference to a "hearing" in Sec. 300.532(a) and an "expedited hearing" in Sec. 300.532(c). Some of these commenters stated that there seems to be a conflict between the two hearings. Other commenters questioned whether the hearing referenced in paragraphs (a) and (c) of this section must be conducted consistent with all the impartial due process hearing requirements. Another commenter suggested that a hearing requested pursuant to Sec. 300.532 may be contrary to section 615(h) of the Act, which provides for the right to counsel, to cross-examine witnesses, and to present evidence and receive the record of due process hearings.

Discussion: The hearing referenced in Sec. 300.532(a) and (c) is the same hearing and not separate hearings. Paragraph (a) in this section states that a parent of a child with a disability who disagrees with any decision regarding a placement, or the manifestation determination, or an LEA that believes that maintaining the current placement of the child is substantially likely to result in injury to the child or to others, may request a hearing. Paragraph (c) of this section clarifies that a hearing requested under paragraph (a) of this section is an impartial due process hearing consistent with the due process hearing requirements of Sec. Sec. 300.510 through 300.514 (including hearing rights, such as a right to counsel, presenting evidence and cross-examining witnesses, and obtaining a written decision), except that the timelines for the hearing are expedited and a State may establish different procedural rules for expedited due process hearings as long as the rules ensure the requirements in Sec. Sec. 300.510 through 300.514 are met. We believe these regulations will ensure that the basic protections regarding hearings under the Act are met, while enabling States to adjust other procedural rules they may have superimposed on due process hearings in light of the expedited nature of these hearings. Further, we believe it is important that all the due process protections in Sec. Sec. 300.510 through 300.514 are maintained because of the importance of the rights at issue in these hearings.

Changes: None.

Comment: One commenter recommended the regulations clarify that a placement determination made by a hearing officer pursuant to his or her authority under Sec. 300.532(b), regarding an appeal requested by a parent who disagrees with the placement of a child, is final and cannot be augmented by the SEA or LEA.

Discussion: Section 300.514, consistent with section 615(i)(1)(A) of the Act, is clear that a hearing officer's decision made in a hearing conducted pursuant to Sec. Sec. 300.530 through 300.534 is final, except that a party may appeal the decision under the provisions in Sec. 300.514(b). Absent a decision upon appeal, the SEA or the LEA may not augment or alter the hearing officer's decision. We do not believe that the regulations need to be clarified.

Changes: None.

Comment: One commenter recommended clarifying whether there is a difference between "likely to result in injury to child or others" as used in Sec. 300.532(b)(2)(ii) and "child would be dangerous" as used in Sec. 300.530(b)(3). The commenter suggested that Sec. 300.532(b)(3), which permits the LEA to return to the hearing officer to request continuation of an interim alternative education placement if the LEA believes the child would be dangerous if returned to the original placement, is a lesser standard than that required of the hearing officer in Sec. 300.532(b)(2)(ii), which permits a hearing officer to order a change in placement to an appropriate interim alternative education setting if the hearing officer determines that maintaining the current placement of the child is substantially likely to result in injury to the child or to others.

Discussion: There is no intended difference between the phrase "likely to result in injury to the child or others" as used in Sec. 300.532(b)(2)(ii) and "child would be dangerous" as used in Sec. 300.532(b)(3). Section 300.532(b)(2)(ii) clarifies that the hearing officer can order a change in placement of a child with a disability to an interim alternative educational setting for not more than 45 school days if the hearing officer determines that maintaining the current placement of the child is substantially likely to result in injury to the child or others. To avoid confusion, the term "dangerous" is replaced with "substantially likely to result in injury to the child or to others."

Changes: We have replaced the term "dangerous" in Sec. 300.532(b)(3) with "substantially likely to result in injury to the child or to others."

Comment: A few commenters questioned whether the change from the heading "expedited due process hearings" in current Sec. 300.528 to "expedited hearing" in Sec. 300.532(c) represents a change in the hearings that are available under Sec. 300.532.

Discussion: The removal of "due process" from the heading in current 300.528 does not represent a substantive change. The change was made to track the statutory requirements in the Act. However, we believe it is important to clarify that an expedited hearing under Sec. 300.532(c) is a due process hearing and the heading to paragraph (c) has been amended to retain the heading in current Sec. 300.528. We also have made additional technical and clarifying changes to paragraphs (c)(2) and (c)(3) of Sec. 300.532. In paragraph (c)(2) of this section, we are clarifying that an expedited hearing must occur within 20 school days of the date the complaint requesting the hearing is filed and restructuring the paragraph for clarity. In paragraph (c)(3) of this section, we are clarifying that the meeting referenced in this paragraph is a resolution meeting.

Changes: The heading in Sec. 300.532(c) has been revised to clarify that a hearing under paragraph (c) of this section is an "expedited due process hearing." We have also made technical and clarifying changes to paragraphs (c)(2) and (c)(3) of this section.

Comment: Many commenters requested clarifying whether the requirements in Sec. 300.508(d), regarding sufficiency of the complaint, apply to the expedited hearing requested under Sec. 300.532(c), pertaining to disagreements with a decision regarding disciplinary placements.

Discussion: In light of the shortened timelines for conducting an expedited due process hearing under Sec. 300.532(c), it is not practical to apply to the expedited due process hearing the sufficiency provision in Sec. 300.508(d), which requires 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 receiving party believes the due process complaint does not include all the necessary content of a complaint as required in Sec. 300.508(b).

To identify the provisions that do apply when a parent requests a hearing under Sec. 300.532(a), we have changed Sec. 300.532(a) to clarify that parents and the LEA may request a hearing under Sec. 300.532(a) by filing a complaint pursuant to Sec. Sec. 300.507 and 300.508(a) and (b).

Changes: We have changed Sec. 300.532(a) to provide that the parent and the LEA may request a hearing under this section by filing a complaint pursuant to Sec. Sec. 300.507 and 300.508(a) and (b).

Comment: Several commenters stated that section 615(k) of the Act does not require a resolution meeting as part of an expedited hearing and recommended removing the requirement in Sec. 300.532(c)(3)(i) that a resolution meeting must occur within seven days of the date an expedited hearing is requested under Sec. 300.532(a). One commenter stated that, given the expedited timelines for the hearing and the decision, Congress did not intend for the resolution meeting to apply to an expedited hearing under section 615(k)(4) of the Act.

Discussion: We are not removing the requirement in Sec. 300.532(c) requiring a resolution meeting because an expedited hearing under section 615(k)(3) of the Act is a due process hearing subject to the provisions in section 615(f) of the Act, including the requirement that the LEA convene a resolution meeting when the parent files a due process complaint. Recognizing the need to promptly resolve a disagreement regarding a disciplinary decision, we believe the resolution meeting provides an opportunity for an LEA and parents to resolve a disagreement regarding a disciplinary placement or manifestation determination before the timeframe for conducting a due process hearing begins. In light of the requirement in section 615(k)(4)(B) of the Act that an expedited hearing must occur within 20 school days of the date the complaint requesting the hearing is filed and a determination must be made within 10 school days after the hearing, which is a much shorter time frame than the one for a due process complaint filed pursuant to 615(f) of the Act, we shortened the resolution meeting timeline to fit into the expedited hearing timeline. Recognizing the need to ensure that the resolution meeting does not delay the expedited hearing if an agreement is not reached, Sec. 300.532(c)(3) provides that the resolution meeting must occur within seven days of receiving notice of the parent's due process complaint regarding a disciplinary placement under Sec. Sec. 300.530 and 300.531, or the manifestation determination under Sec. 300.530(e), and the hearing may proceed unless the matter is resolved within 15 days of the receipt of the parent's due process complaint requesting the expedited due process hearing, and all the applicable timelines for an expedited due process hearing under paragraph (c) of this section commence. However, the parties may agree to waive the resolution meeting or agree to use the mediation process.

Changes: None.

Comment: Several commenters noted that Sec. 300.532(c)(3)(i) states that a resolution meeting must occur within seven days of the date the "hearing is requested," while Sec. 300.510(a)(1), consistent with section 615(f)(1)(B)(i)(I) of the Act, states that the resolution meeting must occur within 15 days of "receiving notice of the due process complaint." The commenters recommended that the Department amend Sec. 300.532(c)(3)(i) to be consistent with Sec. 300.510(a)(1).

Discussion: We agree with the commenters that the language in Sec. 300.532(c)(3)(i) should be consistent with Sec. 300.510(a)(1) and are amending Sec. 300.532(c)(3)(i) to state that a resolution meeting must occur within seven days of "receiving notice of the parent's due process complaint" to be consistent with Sec. 300.510(a)(1). In addition, for consistency, we are amending Sec. 300.532(c)(3)(ii) to state that the due process hearing may proceed unless the matter has been resolved to the satisfaction of both parties within 15 days of "the receipt of the parent's due process complaint."

Changes: Paragraphs (c)(3)(i) and (ii) of Sec. 300.532 have been amended as stated above. Paragraph (c)(3) of this section has also been amended to remove the cross-reference to Sec. 300.510(a)(3) and specific explanatory language has been inserted.

Comment: One commenter asked whether the intent of Sec. 300.532(c)(3)(ii) is to allow the expedited hearing to go forward if the parent fails to participate in the resolution meeting within 15 days of receipt of a hearing request or whether the resolution meeting and hearing would be indefinitely delayed in the context of the expedited hearing for the failure of a parent to participate in the resolution meeting.

Discussion: Section 300.532(c)(3)(i) clearly states that the resolution meeting must occur within seven days of a public agency's receiving notice of the parent's due process complaint. It is not expected that parties will necessarily reach agreement during the resolution meeting; the parties often need time to consider the resolution options offered at the meeting. The intent of Sec. 300.532(c)(3)(ii) is to allow parties sufficient time to consider the resolution options discussed in the resolution meeting. However, if the parties do not reach agreement within 15 days of receipt of the parent's due process complaint, the expedited hearing may proceed and all the applicable timelines for an expedited due process hearing under paragraph (c) commence. Lack of parent participation in the resolution meeting would be addressed the same way it is in a regular due process hearing under Sec. 300.510(b), except that the timeframes will differ. For these reasons, we believe it is unnecessary to clarify the regulations.

Changes: None.

Comment: Several commenters recommended removing proposed Sec. 300.532(c)(4), which allows a State to shorten the time periods for the disclosure of evidence, evaluations, and recommendations for expedited due process hearings to two business days, because it will not give a parent adequate time to prepare for hearings, especially when a parent doesn't have a lawyer. One commenter stated that because LEAs have possession and control of education records, a reduction to two days for disclosure is unfair and creates a hardship on a parent in preparing for the hearing. Other commenters stated that this provision is inconsistent with section 615(f)(2) of the Act, which requires that not less than five business days prior to a hearing, parties must disclose all evaluations and recommendations that parties intend to use at a hearing. A few commenters stated that proposed Sec. 300.532(c)(4) diminishes the protections for children with disabilities and their parents found in the July 20, 1983 regulations, and, therefore, violates section 607(b)(1) and (b)(2) of the Act.

Discussion: We are persuaded by the commenters that limiting the disclosure time to two days would significantly impair the ability of the parties to prepare for the hearing, since one purpose of the expedited hearing is to provide protection to the child. We are removing proposed Sec. 300.532(c)(4), which provides an exception to the normal five day disclosure requirement.

Changes: We have removed proposed Sec. 300.532(c)(4) for the reason stated above. In addition, proposed paragraphs (c)(5) and (c)(6) of this section have been redesignated as paragraphs (c)(4) and (c)(5), respectively. A technical edit has been made to paragraph (c)(1) of this section to ensure the reference to proposed paragraphs (c)(2) through (5) of this section now reference paragraphs (c)(2) through (4) consistent with these changes.

Comment: Numerous commenters expressed concern that proposed Sec. 300.532(c)(5) (new Sec. 300.532(c)(4)), which permits States to establish a different set of procedural rules for expedited due process hearings, could permit States to re-write rules regarding basic procedural safeguards. One commenter expressed concern that proposed Sec. 300.532(c)(5) may lead to abuse if the rules from Sec. Sec. 300.511 through 300.514 regarding complaints, sufficiency, raising new issues, losing on procedural grounds, and appeals are not part of the expedited due process hearing requirements.

Discussion: We agree with the commenters that proposed Sec. 300.532(c)(5), as written, could be interpreted to give States authority to change due process rules provided for in the Act. Therefore, we are amending new Sec. 300.532(c)(4) (proposed Sec. 300.532(c)(5)) to clarify that while a State may establish different State-imposed procedural rules for expedited due process hearings conducted under this section than it has established for other due process hearings, the State must ensure that the requirements in Sec. Sec. 300.510 through 300.514 are met. This will ensure that the basic protections regarding expedited hearings under the Act are met, while enabling States, in light of the expedited nature of these hearings, to adjust other procedural rules they have established for due process hearings.

Changes: New Sec. 300.532(c)(4) (proposed Sec. 300.532(c)(5)) has been amended to clarify that a State may establish different State imposed rules for expedited due process hearings under Sec. 300.532(c) than it has established for other due process hearings but, except for the timelines modified as in paragraph (c)(3) of Sec. 300.532, the State must ensure that the requirements in Sec. Sec. 300.510 through 300.514 are met.