Dated October 25, 2007

Robert Jacobs, J.D., Psy.D.

Education Team Manager

Advocacy Center for Persons with Disabilities, Inc.

1000 N. Ashley Drive, Suite 640

Tampa, FL 33602

Dear Dr. Jacobs:

This letter is in response to your electronic mail (email)
correspondence to Elizabeth Newton, dated September 17, 2007. You
request clarification pertaining to State educational agency (SEA)
responsibilities pursuant to 34 CFR §300.514(b). You state that, in
Florida, due process hearings are conducted by the Division of
Administrative Hearings (DOAH), yet there is no right of appeal to the
SEA. You ask, \"Under what circumstances is it permissible for an SEA to
have another agency conduct the hearings but not provide appeals?\"

The SEA, or the public agency directly responsible for the education of
the child, as determined by State statute, must conduct the due process
hearing required by 34 CFR §300.511. 34 CFR §300.511(b). In carrying out
this responsibility, the SEA may retain impartial hearing officers under
contract to conduct hearings, provided that the hearing officers meet
the requirements of 34 CFR §300.511(c). Thus, although the DOAH holds
the due process hearings, it does so at the request of, and under
contract with, the Florida Department of Education (FLDE). **In** fact,
it is our office\'s understanding that the DOAH submits a recommended
order to the FLDE, and the FLDE must decide whether to proceed with a
final order. Therefore, the FLDE is considered the agency that conducts
the due process hearings, and is responsible for ensuring that all
requirements related to due process hearings are met.

Moreover, 34 CFR §300.514(b)(1) states that, if the hearing required by
34 CFR §300.511 is conducted by a **public agency other than the SEA,**
any party aggrieved by the findings and decision in the hearing may
appeal to the SEA *(emphasis added).* As noted above, the FLDE is
considered the public agency that is conducting due process hearings.
Indeed, the DOAH does not meet the definition of public agency, as that
term is used in IDEA. A public agency is defined as \"the SEA, LEAs,
ESAs, nonprofit charter schools that are not otherwise included as LEAs
or ESAs and are not a school of an LEA or ESA, and any other political
subdivisions of the State that are responsible for providing education
to children with disabilities.\" 34 CFR §300.33.

Since the FLDE is the public agency that is conducting the due process
hearings, and the DOAH does not meet the definition of a \"public
agency\" for these purposes, there is no appeal from the decision of the
DOAH to the SEA. Rather, appeals are governed by 34 CFR §300.516(a),
which provides that any party aggrieved by the findings and decisions
may bring an action in any State court of competent jurisdiction or in a
district court of the United States without regard to the amount in
controversy.

Based on section 607(e) of the IDEA, we are informing you that our
response is provided as informal guidance and is not legally binding,
but represents an interpretation by the U.S. Department of Education of
the IDEA in the context of the specific facts presented.

We hope this information is helpful. If you have additional questions,
please do not hesitate to contact Sheila Friedman, the OSEP State
contact for Florida, at 202-245-7349.

> Sincerely,
>
> /s/
>
> Patricia J. Guard
>
> Acting Director
>
> Office of Special Education Programs
>
> cc: Bambi Lockman