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Note:  This document has been delivered to the Office of the Federal Register but has not yet been scheduled for publication.  The official version of this document is the document that is published in the Federal Register.

For these reasons, we will continue to allow States the option to adopt the due process procedures (with applicable public and stakeholder input) that are most appropriate for that State.

Changes: None.

Filing a due process complaint (§303.440)

Comment: One commenter requested that the Department

clarify the phrase “or should have known” as used in

§303.440(a)(2), regarding an alleged violation that forms

the basis of a due process complaint.

Discussion: As provided in §303.440(a)(2), in States that

choose to adopt the Part B due process procedures under section 615 of the Act, a due process complaint must allege a violation that occurred not more than two years before the date the parent or EIS provider 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 limitation for filing a due process complaint, in the time allowed by that State law. Whether a parent or public

agency “should have known” about the action cited as the

basis of the complaint is a determination that a due process hearing officer must make based on the individual facts of each case. Thus, further clarification of the term is not necessary or appropriate.