The Due Process Hearing

MSER 13.12

• opening statements made by both parties
• witnesses sworn in
• sworn witness testimony, including cross-examination and rebuttal
• subpoenas may be issued by DOE
• recording of hearing (written or electronic)
• admission of exhibits
• requesting party goes first and has the burden of proof
• oral or written summation given
• hearing must occur within 30 days of receipt of request (post amended notice and dispute resolution
time periods) (MSER 13.7)
• extension for up to 10 days for good cause only (MSER 13.7)
• decision rendered within 15 days after close of hearing (MSER 13.14)

"Stay Put" - (20 USC 1415(j), MSER 12.12)

• Student remains in "then current educational placement" during hearing process unless parents and school agree to other placement

Hearing Decisions and Appeals

Basis for Decision by Hearing Officer

• Decision must be based on substantive grounds (20 USC 1415(f)(3)(E)(i))
• Procedural violations must have affected child's right to FAPE or significantly impeded parent's
opportunity to participate in decision-making process re: FAPE or caused a deprivation of educational benefits (20 USC 1415(f)(3)(E)(ii))

View Maine DOE online hearing decisions.

Appeals

• Decision may be appealed by either party in state court or federal district court (regardless of amount in controversy) within 30 days of decision (which is the State time limitation) (20 USC 1415(i)(2))
• Preponderance of the evidence standard (20 USC 1415(i)(2)(c)(iii))
• Additional evidence may be heard at the request of a party (20 USC 1415(i)(2)(c)(ii))

Attorney's Fees

• Reasonable attorneys' fees for due process hearing may be awarded to prevailing parent (20 USC 1415(i)(3)(B)(i)(I))
• May not be awarded for PET meeting unless PET is result of hearing or court action (20 USC 1415(i)(3)(D)(ii)
• Dispute resolution sessions are not a hearing or court action
• May not be awarded for services performed after a written offer of settlement to parents if
• offer is made 10 days before due process hearing,
• offer is not accepted within 10 days and
• hearing officer/court decision rules parent's relief is not more favorable to parents than offer
• 20 USC 1415(i)(3)(D)(i)
• School can seek reasonable attorneys' fees
• against parent's attorney if cause of action is frivolous, unreasonable or without foundation (20 USC 1415(i) (3)(B)(i)(II) or
• against parent or parent's attorney if case presented for improper purpose (harassment, unnecessary delay, increase cost of litigation) 20 USC 1415(i)(3)(B)(i)(III)