> May 1, 2008
>
> Mr. James Gerl, Esq.
>
> Scotti and Gerl, Attorneys at Law 216 South Jefferson Street
>
> Lewisburg, West Virginia 24901
>
> Dear Mr. Gerl:
>
> This is in response to your January 24, 2008 letter regarding the
> requirements for expedited due process hearings conducted in
> accordance with 34 CFR §300.532 of the regulations for Part B of the
> Individuals with Disabilities Education Act (Part B). Your letter asks
> the following question:
>
> For expedited due process hearings, does the calculation of the number
> of days within which the hearing must be held begin after the
> resolution period?
>
> Section 300.532(a) provides that a parent of a child with a disability
> who disagrees with any decision regarding placement under §§300.530
> and 300.531, or the manifestation determination under §300.530(e), or
> a local educational agency (LEA) that believes that maintaining the
> current placement of the child is substantially likely to result in
> injury to the child or others, may appeal the decision by requesting a
> hearing. If a parent or LEA files a due process complaint to request a
> due process hearing under the circumstances set out in §300.532(a),
> the State educational agency (SEA) or LEA is responsible for arranging
> an expedited due process hearing, which must occur *within 20 school
> days of the date the complaint requesting the hearing is filed. 34 CFR
> §300.532(c)(2)* (emphasis added). The hearing officer must make a
> determination within 10 school days after the hearing.
> [Id.]{.underline} Although this hearing must be conducted on an
> expedited basis, it is an impartial due process hearing subject to the
> requirements of 34 CFR §§300.507 and 300.508(a) through (c) and
> §§300.510 through 300.514, except as provided in §300.532(c)(2)
> through (4).
>
> The resolution meeting must occur within seven days of receiving
> notice of the due process complaint unless the parents and LEA agree
> in writing to waive the resolution meeting, or agree to use the
> mediation process described in 34 CFR §300.506. 34 CFR §300.532(c)(3)
> and (i). Under 34 CFR §300.532(c)(3)(ii), 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 due process
> complaint. Thus, there is a I5-day resolution period from the date the
> parent\'s due process complaint requesting a due process hearing under
> 34 CFR §300.532(a) is filed, and the time period for resolution is
> measured in terms of calendar days, not school days. The regulation at
> 34 CFR §300.11(a) specifies that under Part B, day means calendar day,
> unless otherwise indicated as business day or school day. Because the
> due process hearing must occur within 20 school days from the date
> that the parent\'s due process complaint under 34 CFR §300.532(a)
> requesting a due process hearing is filed, the regulations are clear
> that the resolution period is a part of, and not separate from, the
> expedited due process hearing timeline. The shortened
>
> Page 2 - Mr. James Geri, Esq.

timelines for conducting expedited due process hearings in disciplinary
situations should enable hearing officers to make prompt decisions about
disciplinary matters while ensuring all of the due process protections
in 34 CFR §§300.510 through 300.514 are maintained.

Given the shortened timelines for expedited due process hearings on due
process complaints filed under 34 CFR §300.532(a), you also express a
concern about how the parties can meet the requirement at 34 CFR
§300.512(b) to disclose additional information, including evaluations,
and recommendations to all parties at least five business days before
the hearing begins. In the Notice of Proposed Rulemaking to implement
changes made to IDEA by the Individuals with Disabilities Education
Improvement Act of 2004, 70 FR 35782 (Jun. 21, 2005), the Department
proposed that this time period should be reduced from 5 business days to
2 business days. Based on public comments asserting that this proposed
change would not give the parties enough time to share information and
would diminish protections for children with disabilities and their
parents embodied in current law, the Department removed the proposed
change. Assistance to States for the Education of Children with
Disabilities and Preschool Grants for Children with Disabilities, 71 FR
46540, 46725-26 (Aug. 14, 2006). Because the 15-day resolution period
concludes well before the 20-school-day period within which the hearing
must occur, we believe that the parties will have enough time to meet
this requirement before the hearing begins. This is because 15 calendar
days would usually be the equivalent of 11 school days.

> 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 to you. If you have further
> questions, please do not hesitate to contact Kimberly Mitchell at
> 202-245-7453 or Dr. Deborah Morrow at 202-245-7456 of my staff.
>
> Sincerely,
>
> /s/
>
> William W. Knudsen
>
> Acting Director
>
> Office of Special Education Programs

cc: Lynn Boyer