NOTE:This information offers a brief overview of the due process protections
Maine students and their parents have under the federal
Individual with Disabilities in Education Act (IDEA).
Sometimes a parent (or adult student) and the school may disagree. If an agreement cannot be reached,
either party can request mediation and/or a due process hearing through the
Maine Department of Education
(DOE). Parents, adult students, or "interested persons" can also file a complaint against a child's
school district.
MEDIATION
Mediation happens if either the parent, adult student or the school requests it from the Maine DOE.
Mediation can help you work out your differences and reach an agreement. A mediator listens to both
sides and tries to help the parties reach an agreement.
You or the school can ask for mediation all by itself. This is called "stand alone mediation."
Or the DOE will offer mediation when a complaint or a due process hearing request is filed.
After the DOE gets a request for mediation, it will assign a mediator to your case. It will also make
sure that the parent and school agree to use mediation. It cannot be ordered, so if one side does not
want to mediate, it will not happen. If both parties agree to mediation, it will be held in a "timely
manner" and at a mutually convenient place.
If a parent does not have a lawyer at the mediation, the school cannot have a lawyer there either.
If a parent has a lawyer for mediation, the lawyer must give written notice to the school and the DOE at
least 7 calendar days before the mediation, telling them that she will be there. If the parent does not
have a lawyer, he can bring an "advocate" to mediation.
Everything that is said at mediation is confidential. It cannot be used later. But if the parent and
the school reach an agreement, the agreement is not confidential. The agreement will be written down.
The parent and a person with authority to agree for the school must sign it. It is a binding agreement
that can be enforced in Court, or a complaint can be filed with the DOE.
If an agreement is made at mediation, the case has settled. Nothing further will happen since the issues
were worked out.
To ask for mediation, fill out the DOE's
Dispute Resolution Request Form. Check the line for "Stand Alone Mediation."
If you have trouble downloading the form, you can ask for one by phone: (207) 624-6644.
Send your completed form to the DOE and to the
school. Be sure to keep a copy for yourself.
COMPLAINT
A parent, adult student or "interested person" can file a complaint against a school if he believes the
school has violated the parent's or child's rights under IDEA.
Examples:
- The school did not act on a referral to the PET (Pupil Evaluation Team)
- The school did not follow the IEP (Individualized Edcuational Plan
Generally, a complaint must be filed within 1 year of the violation. You can complain about an ongoing
violation at any time. You have 3 years to file a "comp ed" violation.
When the DOE gets the complaint, it will decide if an investigation is needed. If it is, the DOE will
assign an impartial person to do an on-site investigation. The DOE has 60 calendar days from the
time it
gets the complaint to investigate and send out a written decision. The time line may be longer if 1) there
are exceptional circumstances, or 2) the parties agree to more time because they are going to mediation.
If the problems in the complaint are also raised in a due process hearing request, the complaint process
will not start until after the due process hearing decision is made.
As part of the investigation,
- the person who files the complaint can give more information to the investigator,
- the school has a chance to respond to the complaint and try to resolve it, and
- mediation may be offered.
After completing his investigation, the complaint investigator must make a written decision. It must
have findings of fact, conclusions of law, and the reasons for the decision.
If there are violations, the DOE will order the school to take corrective action, such as:
- provide appropriate services to address the needs of the child,
- reimburse a parent for services she paid for, and
- make appropriate changes to ensure that all children with disabilities receive services.
If the DOE does not find any violations, no order against the school will be made.
To file a complaint, get a
Dispute Resolution Request Form from the DOE and fill it out. Check
"Complaint Investigation." If you have documents you want the complaint investigator to read,
attach them to the form.
It will help the investigator if you attach supporting documents. You must give suggestions for how to
fix the problem. Send everything to the DOE and a copy to the school. Keep a copy for yourself.
DUE PROCESS HEARING
Who Can Ask for a Hearing?
Parents and adult students can ask for a "due process hearing" if they disagree with:
- the IEP Team's determination of the student's eligibility for services,
- the IEP (based on the appropriateness of services or least restrictive environment placement), or
- the manifestation determination
The school must request a due process hearing if:
- it wants to place a student in an IAES (Interim Alternative Education Setting) because the
student is a danger to self or others, or
- it denies a parent's request for an IEE (Independent Educational Evaluation).
The school can (but does not have to) file a request for due process hearing if the parent or adult
student refuses to consent to evaluations. The school can ask the hearing officer to order the
evaluations.
The Timeline to Make a Request
A due process hearing request must be made within 4 years of when the parent or school knew or
should
have known about the action at issue.
There are 2 exceptions to this timeline:
- the school lied and said it resolved the problem, or
- the school withheld information from the parent that should have been given to the parent
Making a Request For a Due Process Hearing
To file a "due process hearing" request, get a
hearing request
form from the DOE and fill it out. Send your completed form to the DOE and send a copy
to the school. If the school files a request, it must send a copy to the parent. Keep a copy of your
request.
The notice must be clear and must include:
- the name and address of child,
- if the child is homeless, the available contact information for the child,
- the name of the school the child attends,
- a description of the problem, including facts related to it, and
- a proposed resolution.
The hearing will only address the issues that are written in the notice, so you must be sure to include
all the issues in your notice.
The other party can challenge the notice for not being specific or for not having all the information
it is supposed to have. Any challenge must be in writing and sent to the hearing officer within 15
calendar days of receiving the notice. The hearing officer must make her decision about the notice
within 5 calendar days of getting the challenge. If the hearing officer finds that the notice is no good,
a new notice can be filed if:
- the opposing party agrees and is given the chance to hold a "resolution meeting" or
- the hearing officer authorizes a new notice.
The new notice must be received by the DOE and the other side at least 5 calendar days before the due
process hearing. If the notice is rewritten, all the timelines for the hearing will start after the
new notice is received.
Responding to the Notice
If the school files a due process hearing request against a parent, the parent must send a written
response to the school within 10 calendar days of when he gets the notice. The response must answer
the issues that are raised by the school.
If the parent files a due process hearing request, the school has 10 calendar days from when it gets
the notice to send the parent a written response. The response must state:
- why it made the decision,
- the description of other options considered by the PET (Pupil Evaluation Team)
- the reason for rejection of those options,
- descriptions of each evaluation, record, and report that supports the school’s decision, and
- the factors relevant to school’s decision
The school does not have to send this response to the parent if it already sent the parent a prior
notice that stated the proposed start of, change in, or refusal to start or change the student’s
identification, evaluation, placement or FAPE (Free Appropriate Public Education).
Resolution Meeting
The school has 30 calendar days to resolve the problems to the parent's satisfaction. If the parent
is still unhappy after those 30 days, the due process hearing timeline will start. The school will
try to solve the problems through a "resolution meeting."
Within 15 calendar days of when the school gets its copy of the due process hearing request, the school
must schedule a "resolution meeting." If the parent does not go to the meeting, the school can ask the
hearing officer to dismiss the case. If the case is dismissed, the hearing will not happen. If the school
does not hold the meeting within the 15 day time period, the parent can ask the hearing officer to start
the due process hearing timeline.
The resolution meeting does not need to happen if:
- both the parent and school agree in writing to not have the meeting, or
- the parent and school agree to go to mediation instead.
The purpose of the resolution meeting is to give the parties a chance to work things out. The people who
should go to the meeting are:
- the parent
- IEP Team members with knowledge of the facts and issues, and
- a school representative with decision-making authority.
The school cannot have a lawyer at the meeting if the parent does not have a
lawyer.
If the parties reach an agreement at the resolution meeting, it must be written down. The parent and
a school staff member with authority to agree for the school must sign it. Both the parent and the
school can change their minds within 3 business days of when the agreement is signed. After that,
the agreement is legally binding. It can be enforced in court. A parent can also enforce the agreement
by filing a complaint with the DOE.
The Due Process Hearing Timeline
The due process hearing timeline is 45 calendar days. The pre-hearing conference and hearing
must be
held within 30 calendar days. A written hearing decision must be made within 15 calendar days
after
the hearing is over. The 45 day timeline does not start until after the 30 day resolution period
is
over. It can start before that if:
- the school does not hold the resolution meeting within 15 days,
- both the school and parent agree to not have a resolution meeting,
- both the school and parents agree in writing that an agreement is not possible, or
- the school and parents agreed to mediation after the 30 day "resolution period" and one of the
parties then withdraws from mediation.
Who Are the Hearing Officers?
Hearing officers cannot work for the DOE or for the school district that is involved in the case. They
must be fair and neutral. They cannot have a personal or professional interest that could make them biased.
The DOE and the schools keep a list of hearing officers and their qualifications.
Preparing for the Hearing
If the parties do not reach agreement through a resolution meeting or mediation, there will be a hearing.
The hearing officer will schedule a "pre-hearing conference" with the parent and the school. At the
"pre-hearing conference" the hearing officer will define the issues and address witnesses, exhibits,
and any other issues that need to be discussed.
The parties can subpoena witnesses to the hearing. The Commissioner of the Maine DOE will issue a
subpoena. The party who wants the subpoena must ask for one ahead of time. Any
travel costs or fees charged by the witness must be paid for by the party asking for the subpoena.
The school and parent must exchange exhibits at least 5 business days before the hearing.
Any documents
that were not given to the other side at least 5 business days before the hearing cannot be used at the
hearing.
The Hearing
A school district can have a lawyer for the pre-hearing conference and hearing even if the
parent does not have a lawyer. A parent can bring someone with special knowledge or training
about children with disabilities to the hearing.
The hearing officer will make opening remarks and review the issues to be decided. The person who asked for
the hearing will give an opening statement, and then the other side will give its opening statement. The
party requesting the hearing will go first by testifying under oath and putting on his witnesses. Each
side will be able to cross-examine witnesses. Then the other party will present its testimony and
witnesses. Rebuttal witnesses can be called.
After all of the evidence has been presented, the parties
give closing arguments by summarizing the evidence and legal rights that support their positions. The
hearing officer may ask for written arguments. If she does, she will give the parties a deadline to send
her the written closing arguments.
The Hearing Decision
The hearing officer must make a decision within 15 calendar days after the hearing has ended.
If written
arguments were submitted, this means 15 days after she received them. The decision will be based on the
evidence presented at the hearing.
If the school loses the hearing, it must comply with the decision within 45 calendar days or file a Court
appeal.
If either side loses, it can appeal to court within 90 calendar days of receiving the decision.
The appealing party must send a copy of the appeal to the DOE. An
appeal to Court is not a new hearing. Instead, the Court will review the hearing decision for legal
errors. A written transcript of your recorded hearing will be made for the Court to review on the appeal.
A parent can request
a transcript or recording of the hearing and cannot be charged a fee.
Your Child's Placement During the Dispute Process
As you see from the timelines, the process takes a while. While all this is going on, your child stays in
his or her "current educational placement." This is the placement your child was in before any changes
were made at the IEP team meeting. A different placement can happen if you and the school agree to
another placement, or your child has been placed in an IAES
(Interim Alternative Education Setting)for 45 school days.
Attorney's Fees
If a parent wins a due process hearing, the hearing officer can order the school to pay the parent's
reasonable attorneys' fees. The fees are limited to the attorney's preparing for and advocating at
the hearing. It will not cover an attorney's attendance at an IEP Team meeting unless the meeting was
ordered by a court or the DOE. It will not pay for a lawyer to attend a
"resolution session." Attorneys fees will not be ordered if:
- the school makes a written offer of settlement to the parents at least 10 calendar days before the
due process hearing,
- that offer is not accepted within 10 calendar days, and
- the hearing officer or court decision does not give the parents any more than what the school
offered.
The school can ask for a hearing officer to order parents to pay its attorney's fees ONLY IF the parent
made the hearing request for an improper purpose (harassment, unnecessary delay, to increase cost of
litigation).
Expedited Due Process Hearings
An expedited hearing can be asked for only if your child has been disciplined by and removed from the
school. The hearing is the same as a due process hearing, except the timelines are slightly shorter.
Instead of 30 calendar days to resolve the problem, the school has 15 calendar days. The "resolution
session" must happen in 7 calendar days instead of 15 calendar days. If the issue is not resolved within
15 calendar days from when the school got the expedited due process hearing request, the hearing timeline
is 30 school days. The hearing must be held within 20 school days after the resolution period has
ended.
The hearing officer must issue a decision within 10 school days after the hearing has ended. If you look
at a calendar, you will see that this is not much quicker than the 45 calendar days it takes for a regular
due process hearing.
In addition, an expedited hearing can be limited to one day. With a regular due process hearing, you are
not limited to the number of days needed to present your case.
