UNITED STATES DEPARTMENT OF EDUCATION
OFFICE OF SPECIAL EDUCATION AND REHABILITATIVE
SERVICES
July 23, 2013
Contact Person: Gregg Corr
Telephone: 202-245-7309
OSEP MEMO 13-08
MEMORANDUM
TO:

Chief State School Officers
State Directors of Special Education

FROM:

Melody Musgrove, Ed.D.
Director
Office of Special Education Programs

SUBJECT:

Dispute Resolution Procedures under Part B of the Individuals with Disabilities
Education Act (Part B)

The purpose of this Memorandum is to introduce the updated and combined question and answer
(Q&A) document on the dispute resolution procedures that are set out in the Part B regulations,
published in the Federal Register on August 14, 2006, including mediation procedures (34 CFR
§300.506), State complaint procedures (34 CFR §§300.151-300.153), and due process
procedures (34 CFR §§300.507-300.516 and 300.532-300.533). The Office of Special Education
Programs (OSEP) encourages parents and local educational agencies (LEAs) to work
collaboratively, in the best interests of children, to resolve the disagreements that may occur
when working to provide a positive educational experience for all children, including children
with disabilities. To this end, the IDEA and its implementing regulations provide specific
options for resolving disputes between parents and public agencies, which can be used in a
manner consistent with our shared goals of improving results and achieving better outcomes for
children with disabilities.
The attached Q&A document provides responses to frequently asked questions to facilitate and
enhance States’ implementation of the Part B dispute resolution procedures. The Q&A
document incorporates prior clarification of the requirements of Part B of the IDEA and the Part
B regulations that OSEP has provided on the dispute resolution procedures in policy memoranda,
Q&A documents, letters responding to individual requests for policy clarification, and responses
to public comments published in regulatory notices in the Federal Register. Three previous
memoranda are being updated and reissued at this time as part of the Q&A document: OSEP
Memorandum 94-16 issued on March 22, 1994; OSEP Memorandum 00-20 issued on July 17,
2000; and OSEP Memorandum 01-5 issued on November 30, 2000. Some of the questions and

Page 2 – Chief State School Officers and State Directors of Special Education
answers in the Q&A document were previously contained in Questions and Answers on
Procedural Safeguards and Due Process Procedures For Parents and Children with Disabilities,
January 2007, updated June 2009. These questions have been revised, amended, and updated, as
appropriate.
The Q&A document consists of five sections: mediation; State complaint procedures; due
process complaints and due process hearing procedures; resolution process; and expedited due
process hearings.
As part of its general supervisory responsibility, a State educational agency (SEA) must ensure
implementation of IDEA’s dispute resolution procedures in a manner that meets the requirements
of the IDEA. OSEP encourages States and their public agencies to work cooperatively with
parents to attempt to address their differences through informal means whenever possible.
However, when those informal means prove unsuccessful, States should recognize the benefits of
encouraging their public agencies to voluntarily engage in mediation with parents, consistent
with 34 CFR §300.506. Also, since the inception of the Part B program in 1977, State complaint
procedures have provided a very effective and efficient means of resolving disputes between
parents and public agencies, without the need to resort to more formal, adversarial, and costly
due process proceedings.
Sections A and B of the Q&A document provide guidance on mediation and State complaint
procedures, respectively. Section C of the Q&A document describes procedures for due process
complaints as well as procedures for due process hearings when the dispute between the parents
and the public agency cannot be resolved through informal means, through mediation, or through
the resolution process. Even when resorting to IDEA’s due process procedures becomes
necessary, States and their public agencies should focus on ways to resolve the dispute with
parents as early as possible at the local level. Therefore, appropriate use of the resolution
procedures, described in Section D of the attached Q&A document, provides an effective and
efficient way of resolving disputes at the local level when a parent files a due process complaint.
Section E of the Q&A document addresses procedures for expedited due process hearings when
a parent or a public agency files a due process complaint regarding a disciplinary matter.
This Memorandum and the attached questions and answers are available at http://idea.ed.gov and
http://www2.ed.gov/about/offices/list/osers/osep/policy.html.
We hope that you find this information helpful. If you or members of your staff have questions,
please contact Gregg Corr or your State Contact in OSEP’s Monitoring and State Improvement
Planning Division.
Thank you for your continued commitment to improving results for children and youth with
disabilities and to ensuring that the rights of children and their parents are protected.
Attachment

QUESTIONS AND ANSWERS ON IDEA PART B
DISPUTE RESOLUTION PROCEDURES
Revised July 2013
Regulations for Part B of the Individuals with Disabilities Education Act (IDEA) were published
in the Federal Register on August 14, 2006, and became effective on October 13, 2006.
Supplemental IDEA regulations were published on December 1, 2008, and became effective on
December 31, 2008. Since publication of the regulations, the Office of Special Education and
Rehabilitative Services (OSERS) in the U.S. Department of Education (Department) has
received requests for clarification of some of these regulations. This is one of a series of
question and answer (Q&A) documents prepared by OSERS to address some of the most
important issues raised by requests for clarification on a variety of high-interest topics. Each
Q&A document will be updated to add new questions and answers as other important issues arise
or to amend existing questions and answers as needed.
OSERS issues this Q&A document to provide parents, parent training and information centers,
school personnel, State educational agencies (SEAs), local educational agencies (LEAs),
advocacy organizations, and other interested parties with information to facilitate appropriate
implementation of the IDEA dispute resolution procedures, including mediation, State complaint
procedures, and due process complaint and due process hearing procedures. This Q&A
document represents the Department’s current thinking on these topics. It does not create or
confer any rights for or on any person. This guidance does not impose any requirements beyond
those required under applicable law and regulations. Further, this document pertains only to
IDEA Part B and is not meant to interpret Section 504 of the Rehabilitation Act of 1973 and Title
II of the Americans with Disabilities Act of 1990. 1
This Q&A document updates and revises, as appropriate, the Department’s guidance, entitled
Questions and Answers on Procedural Safeguards and Due Process Procedures for Parents and
Children with Disabilities issued in January 2007 and revised in June 2009. This Q&A
document also updates and revises the information and questions and answers contained in the
following Office of Special Education Programs (OSEP) Memoranda: 94-16, Complaint
Management Procedures Under Part B of the Individuals with Disabilities Education Act Public Law 101-476 (Part B), issued March 22, 1994; 00-20, Complaint Resolution Procedures
under Part B of the Individuals with Disabilities Education Act (Part B), issued July 17, 2000;
and 01-5, Questions and Answers on Mediation, issued November 30, 2000. This Q&A
document replaces the previously issued OSEP Memoranda and Q&A document.
Generally, the questions and corresponding answers presented in this Q&A document required
an interpretation of the IDEA and its implementing regulations and the answers are not simply a
restatement of the statutory or regulatory requirements. The responses presented in this
1

For more information about these laws please contact the Office for Civil Rights Enforcement Office that serves
your State. Contact information for these offices can be found at:
http://wdcrobcolp01.ed.gov/CFAPPS/OCR/contactus.cfm.

Questions and Answers on IDEA Part B Dispute Resolution Procedures
document generally are informal guidance representing the interpretation of the Department of
the applicable statutory or regulatory requirements in the context of the specific facts presented
and are not legally binding. However, where controlling case law on these issues exists in your
jurisdiction, it generally would be legally binding. The Q&As in this document are not intended
to be a replacement for careful study of the IDEA and its implementing regulations or of
controlling case law. The IDEA, its implementing regulations, and other important documents
related to the IDEA are found at http://idea.ed.gov.
If you are interested in commenting on this guidance, please email your comments to
OSERSguidancecomments@ed.gov and include Dispute Resolution Procedures in the subject of
your email or write us at the following address: Gregg Corr, U.S. Department of Education,
Potomac Center Plaza, 550 12th Street, S.W., Room 4108, Washington, D.C. 20202.

Page II

Questions and Answers on IDEA Part B Dispute Resolution Procedures

Contents
A. Mediation ..................................................................................................................................1
Question A-1:

What is mediation? ....................................................................................................................1

Question A-2:

Can OSEP provide a historical context for the mediation provisions in the IDEA statute
and regulations? .........................................................................................................................1

Question A-3:

What are the benefits of mediation? ..........................................................................................2

Question A-4:

Who are the parties to mediation? Can States offer mediation to individuals and
organizations other than parents? ...............................................................................................2

Question A-5:

What is a mediator? ...................................................................................................................3

Question A-6:

What are the types of issues that can be the subject of mediation? ............................................4

Question A-7:

Under what circumstances does the IDEA require that mediation be made available to
parents of parentally-placed private school children with disabilities? ......................................4

Question A-8:

Under what circumstances do the Part B regulations prevent public agencies from using
mediation? ..................................................................................................................................5

Question A-9:

What are some similarities and differences between mediation and due process hearings? ......6

Question A-10: How long does the mediation process take? ..............................................................................7
Question A-11: Does the IDEA address where mediation sessions are held? .....................................................8
Question A-12: Who may participate in, or attend, the mediation session? May parents or public agencies
bring their attorneys to mediation sessions and, if so, under what circumstances?....................8
Question A-13: May a child with a disability who is the subject of the mediation process attend the
mediation session with his or her parent? ..................................................................................8
Question A-14: What options are available if a parent declines a public agency’s request to engage in
mediation? ..................................................................................................................................9
Question A-15: May a State use IDEA funds for recruitment and training of mediators? ..................................9
Question A-16: Who pays for the mediation process? ........................................................................................9
Question A-17: How is a mediator selected? .................................................................................................... 10
Question A-18: May more than one mediator be selected to conduct mediation under the IDEA? .................. 10
Question A-19: May current LEA employees serve as mediators? ................................................................... 10
Question A-20: Is it a conflict of interest if a mediator is paid by a State agency? ........................................... 11
Question A-21: Does the IDEA address what would constitute effective mediation techniques? .................... 11
Question A-22: If the parties to the mediation process resolve their dispute, must the agreement reached
by the parties be in writing? ..................................................................................................... 11
Question A-23: Are discussions that occur in the mediation process automatically confidential or is the
confidentiality of the mediation session a matter that must be mediated and documented
as a part of the mediation agreement? ...................................................................................... 12
Question A-24: Must a written mediation agreement be kept confidential? ..................................................... 12
Question A-25: Does the IDEA allow discussions that occur during the mediation process to be disclosed
during the resolution of a State complaint?.............................................................................. 12
Question A-26: May parties to the mediation process be required to sign a confidentiality pledge or
agreement prior to, or as a precondition, to the commencement of the mediation process? .... 13

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Questions and Answers on IDEA Part B Dispute Resolution Procedures
Question A-27: May a State use nonjudicial mechanisms (e.g., State complaint procedures) to resolve
allegations that the public agency did not implement a mediation agreement? ....................... 13
Question A-28: May a parent file a State complaint on matters that were not addressed in, or that arose
after the time covered by, the mediation agreement? ............................................................... 14

B. State Complaint Procedures .................................................................................................15
Question B-1:

Why are States required to have complaint procedures when the IDEA statute does not
contain those procedures? ........................................................................................................ 15

Question B-2:

What are some differences between a State complaint and a due process complaint? ............ 16

Question B-3:

Who may file a State complaint? ............................................................................................. 17

Question B-4:

Are there any mechanisms that an SEA must provide to assist parents and other parties in
filing a State complaint? .......................................................................................................... 17

Question B-5:

If a parent wishes to challenge a public agency’s eligibility determination, may a parent
file a State complaint? .............................................................................................................. 18

Question B-6:

How should an SEA resolve a State complaint challenging a public agency’s eligibility
determination? ......................................................................................................................... 18

Question B-7:

If a parent wishes to challenge a public agency’s decision regarding the provision or
denial of FAPE to a child with a disability, may a parent file a State complaint? ................... 19

Question B-8:

How should an SEA resolve a State complaint challenging a public agency’s decision
regarding the provision or denial of FAPE to a child with a disability? .................................. 19

Question B-9:

May the State complaint procedures, including the remedies outlined in
34 CFR §300.151(b), be used to address the problems of a group of children, i.e., a
complaint alleging systemic noncompliance? .......................................................................... 20

Question B-10: If there is a finding in a State complaint that a child or group of children has been denied
FAPE, what are the remedies? ................................................................................................. 21
Question B-11: How does an SEA resolve a complaint when an organization or individual, other than a
child’s parent, files a State complaint regarding a specific child? ........................................... 21
Question B-12: How does an SEA resolve a complaint against itself? ............................................................. 22
Question B-13: May States establish procedures permitting a State complaint to be filed electronically? ....... 22
Question B-14: Must States have procedures for tracking when State complaints are received, including
State complaints filed electronically, if applicable?................................................................. 23
Question B-15: What is an SEA’s responsibility to resolve a complaint if the complaint submitted to the
SEA does not include all of the content required in 34 CFR §300.153?.................................. 24
Question B-16: May an SEA dismiss a complaint alleging systemic noncompliance because the
complainant did not include a proposed resolution of the problem?........................................ 25
Question B-17: What is an SEA’s responsibility to resolve a complaint if the complainant does not
provide a copy of the complaint to the LEA or public agency serving the child at the
same time the complaint is filed with the SEA? ...................................................................... 25
Question B-18: May a complaint be filed with an SEA over an alleged violation that occurred more than
one year prior to the date of the complaint? ............................................................................. 26
Question B-19: Does an SEA have the option to accept and resolve complaints alleging violations of the
IDEA that occurred more than one year prior to the SEA’s receipt of the complaint?
What is the SEA’s responsibility if such a procedure is permitted? ........................................ 26
Question B-20: Must an SEA conduct an independent on-site investigation for every complaint filed?.......... 27

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Questions and Answers on IDEA Part B Dispute Resolution Procedures
Question B-21: When can the SEA extend the 60-day time limit for resolution of a State complaint? Can
OSEP identify examples of situations when States have not been permitted to extend the
60-day complaint resolution time limit due to exceptional circumstances? ............................. 27
Question B-22: Must an SEA make mediation available when a State complaint is filed? .............................. 28
Question B-23: What are the procedures related to an extension of the time limit for resolving a State
complaint when the parties are engaged in mediation? ............................................................ 28
Question B-24: If the complainant is a party other than a parent, may the parties use the mediation
process to attempt to resolve the issues in the State complaint? .............................................. 29
Question B-25: Can an SEA dismiss allegations raised in a State complaint that were addressed in a
previous settlement agreement resulting from mediation or the resolution process? ............... 29
Question B-26: Can an issue that is the subject of a State complaint also be the subject of a due process
complaint requesting a due process hearing? ........................................................................... 29
Question B-27: If a parent has filed a State complaint and the State’s resolution is still in process, can the
parent request a due process hearing pending resolution of the State complaint? ................... 30
Question B-28: May a State complaint be filed on an issue that was previously decided in a due process
hearing?.................................................................................................................................... 30
Question B-29: May the State complaint procedures be used to resolve a complaint that alleges that a
public agency has failed to implement a hearing officer’s decision? ....................................... 30
Question B-30: Once an SEA resolves a State complaint, what must the SEA’s written decision contain?..... 31
Question B-31: What is the SEA’s responsibility after a written decision on a State complaint is issued? ...... 31
Question B-32: May a State complaint decision be appealed?.......................................................................... 31
Question B-33: Is a State required to make written decisions on State complaints available to the public? ..... 32
Question B-34: When did the Department remove the Secretarial review provision from the Part B
regulations? Is an SEA required to develop a process to replace Secretarial review? ............ 32

C. Due Process Complaints and Due Process Hearing Procedures .......................................34
Question C-1:

Why does the IDEA require that a party file a due process complaint in order to request a
due process hearing? ................................................................................................................ 34

Question C-2:

Who may file a due process complaint? .................................................................................. 34

Question C-3:

What happens after a due process complaint is submitted? ..................................................... 35

Question C-4:

What happens if a hearing officer determines that a due process complaint is insufficient? ... 36

Question C-5:

What is the timeline for filing a due process complaint? ......................................................... 36

Question C-6:

May States establish procedures permitting a due process complaint to be filed
electronically? .......................................................................................................................... 37

Question C-7:

Must States have procedures for tracking when due process complaints are received,
including due process complaints filed electronically if a State accepts due process
complaints filed electronically? ............................................................................................... 38

Question C-8:

Are there any mechanisms that an SEA must provide to assist parents and public agencies
in filing a due process complaint?............................................................................................ 38

Question C-9:

May a parent file a due process complaint because his or her child’s teacher is not highly
qualified? ................................................................................................................................. 39

Question C-10: Under what circumstances does the IDEA permit parents of parentally-placed private
school children with disabilities to use IDEA’s due process procedures? ............................... 39

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Questions and Answers on IDEA Part B Dispute Resolution Procedures
Question C-11: Under what circumstances may a public agency use IDEA’s due process procedures to
override a parent’s refusal to consent? ..................................................................................... 40
Question C-12: If a parent wishes to obtain an independent educational evaluation (IEE) at public
expense pursuant to 34 CFR §300.502(b)(1), and the public agency believes that its
evaluation is appropriate, must the public agency file a due process complaint to request a
due process hearing? ................................................................................................................ 41
Question C-13: If both parents have legal authority to make educational decisions for their child and one
parent revokes consent for the provision of special education and related services
pursuant to 34 CFR §300.9(c), may the other parent file a due process complaint to
override the revocation of consent? ......................................................................................... 41
Question C-14: Does the IDEA address where due process hearings and reviews are held? ........................... 41
Question C-15: What requirements apply to the qualifications and impartiality of hearing officers? .............. 42
Question C-16: Does the SEA have the authority to determine whether a due process complaint
constitutes a new issue compared to a previously adjudicated due process complaint
between the same parties? ........................................................................................................ 42
Question C-17: May State law authorize the SEA to unilaterally dismiss or otherwise limit the issues that
can be the subject of a party’s due process complaint? ............................................................ 43
Question C-18: Do hearing officers have jurisdiction over issues raised by either party during the
prehearing or hearing which were not raised in the due process complaint? ........................... 43
Question C-19: Do hearing officers have the authority to raise and address issues of noncompliance that
were not raised by the parties? ................................................................................................. 43
Question C-20: Under what circumstances may a State prohibit hearing officers from reviewing the
appropriateness, and ordering the implementation of, settlement agreements reached
under the IDEA? ...................................................................................................................... 43
Question C-21: Once the 30-day resolution period or adjusted resolution period expires, what is the
timeline for issuing a final hearing decision? .......................................................................... 44
Question C-22: When would it be permissible for a hearing officer to extend the 45-day timeline for
issuing a final decision in a due process hearing on a due process complaint or for a
reviewing officer to extend the 30-day timeline for issuing a final decision in an appeal to
the SEA, if applicable? ............................................................................................................ 44
Question C-23: If an SEA contracts with another agency to conduct due process hearings on its behalf,
can those decisions be appealed to the SEA? ........................................................................... 44
Question C-24: Does a parent have the right to receive a hearing record at no cost, even though the
applicable time period to appeal the hearing decision has expired? ........................................ 45
Question C-25: Are “motions for reconsideration” permitted after a hearing officer has issued findings of
fact and a decision in a due process hearing?........................................................................... 46
Question C-26: What is the SEA’s responsibility after a due process hearing decision is issued? ................... 46
Question C-27: Which public agency is responsible for transmitting the findings and decisions in a
hearing to the State advisory panel (SAP) and making those findings and decisions
available to the public? ............................................................................................................ 47

D. Resolution Process .................................................................................................................49
Question D-1:

What is the purpose of the resolution meeting? ....................................................................... 49

Question D-2:

Why is a resolution meeting not required when an LEA files a due process complaint? ........ 50

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Questions and Answers on IDEA Part B Dispute Resolution Procedures
Question D-3:

Does the parent still have the right to challenge the sufficiency of the due process
complaint when an LEA files a due process complaint? Must the parent respond to the
LEA’s due process complaint? ................................................................................................ 50

Question D-4:

If a due process complaint is amended and the 15-day timeline to conduct a resolution
meeting starts over, must the LEA conduct another resolution meeting? ................................ 51

Question D-5:

If a parent files a due process complaint with the LEA or public agency but does not
forward a copy of the due process complaint to the SEA, when does the timeline for
convening a resolution meeting begin? .................................................................................... 51

Question D-6:

Are there circumstances in which an LEA would not be required to convene a resolution
meeting when it receives notice of a parent’s due process complaint? .................................... 52

Question D-7:

Does the timeline for a due process hearing decision always begin after the 30-day
resolution period? .................................................................................................................... 52

Question D-8:

Which individuals participate in the resolution meeting? ........................................................ 53

Question D-9:

May the LEA bring its attorney to a resolution meeting when the parent is accompanied
by a non-attorney or qualified representative or advocate with the authority under State
law to represent the parent at a due process hearing? .............................................................. 53

Question D-10: Must an LEA include the days when schools are closed due to scheduled breaks and
holidays in calculating the timeline for convening a resolution meeting? ............................... 53
Question D-11: What is an LEA’s responsibility to convene a resolution meeting when the parent cannot
attend within the 15-day timeline? ........................................................................................... 54
Question D-12: Must the LEA continue its attempts to convince a parent to participate in a resolution
meeting throughout the 30-day resolution period? .................................................................. 54
Question D-13: If a party fails to participate in the resolution meeting, must the other party seek the
hearing officer’s intervention to address the pending due process hearing on the parent’s
due process complaint? ............................................................................................................ 55
Question D-14: If a party fails to participate in the resolution meeting, and neither party seeks the hearing
officer’s intervention to address the pending due process complaint, would the timeline
for a due process hearing decision still apply? ......................................................................... 55
Question D-15: What is the SEA’s responsibility for ensuring that LEAs comply with the resolution
process requirements? .............................................................................................................. 55
Question D-16: May an LEA require a parent to sign a confidentiality agreement as a precondition to
conducting a resolution meeting? ............................................................................................ 56
Question D-17: Are there any provisions in the IDEA that require discussions that occur in resolution
meetings to remain confidential? ............................................................................................. 57
Question D-18: Do the Part B regulations allow information discussed at a resolution meeting to be
introduced at a due process hearing or civil proceeding? ........................................................ 57
Question D-19: Must a settlement agreement be signed and executed at the resolution meeting, or may a
settlement agreement be signed and executed by the parties prior to the conclusion of the
30-day resolution period? ........................................................................................................ 57
Question D-20: If the parties reach agreement on all issues in the parent’s due process complaint and
execute a written settlement agreement, what happens to the due process complaint? ........... 58
Question D-21: How can written settlement agreements reached through IDEA’s resolution process be
enforced if a party believes the agreement is not being implemented? .................................... 58
Question D-22: If an agreement is not reached during the resolution meeting, must mediation continue to
be available? ............................................................................................................................ 58

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Questions and Answers on IDEA Part B Dispute Resolution Procedures
Question D-23: Does the 30-day resolution period apply if the parties elect to use mediation under
34 CFR §300.506 rather than convene a resolution meeting? ................................................. 58
Question D-24: What is the impact of mediation on the resolution and due process hearing timelines? .......... 59
Question D-25: If the LEA and parents wish to continue the mediation process at the conclusion of the
30-day resolution period must the hearing officer agree to the extension in order for the
parties to continue the mediation process?............................................................................... 59

E. Expedited Due Process Hearings ............................................................................................1
Question E-1:

What is an expedited due process hearing?................................................................................1

Question E-2:

What is the hearing officer’s authority in an expedited due process hearing? ...........................2

Question E-3:

How is the timeline for conducting an expedited due process hearing calculated? Does
this timeline begin after the resolution period? ..........................................................................2

Question E-4:

May the parties mutually agree to extend the resolution period to resolve an expedited
due process complaint? ..............................................................................................................3

Question E-5:

How must SEAs and LEAs apply the timeline requirements for expedited due process
hearings if the due process complaint is filed when school is not in session? ...........................3

Question E-6:

May a party challenge the sufficiency of a due process complaint requesting an expedited
due process hearing? ..................................................................................................................4

Question E-7:

May a hearing officer extend the timeline for making a determination in an expedited due
process hearing? .........................................................................................................................4

Question E-8:

How can the parties meet the requirement in 34 CFR §300.512(b) to disclose evaluations
and recommendations to all parties at least five business days before an expedited due
process hearing begins? .............................................................................................................4

Question E-9:

May a school district proceed directly to court for a temporary injunction to remove a
student from his or her current educational placement for disciplinary reasons or must the
school district exhaust administrative remedies by first filing a due process complaint to
request an expedited due process hearing? ................................................................................5

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Questions and Answers on IDEA Part B Dispute Resolution Procedures

A.

Mediation

Authority:

The requirements for mediation are found in the regulations at
34 CFR §300.506.

Question A-1:

What is mediation?

Answer:

Mediation is an impartial and voluntary process that brings together parties
that have a dispute concerning any matter arising under 34 CFR part 300 (the
Part B of the IDEA (Part B) regulations) to have confidential discussions with
a qualified and impartial individual. The goal of mediation is for the parties to
resolve the dispute and execute a legally binding written agreement reflecting
that resolution. Mediation may not be used to deny or delay a parent’s right to
a hearing on the parent’s due process complaint, or to deny any other rights
afforded under Part B. 34 CFR §300.506(b)(1) and (8).

Question A-2:

Can OSEP provide a historical context for the mediation provisions in the
IDEA statute and regulations?

Answer:

States have successfully used mediation as an informal mechanism to resolve
disputes between parents and public agencies, even though they were not
required to offer mediation prior to 1997. The Education for All Handicapped
Children Act, 2 originally enacted into law in 1975, contained no requirement
for States to offer mediation. In a comment to the initial regulations
implementing Part B of the Education of the Handicapped Act (EHA)
published in 1977, the former Department of Health, Education, and Welfare
acknowledged that many States pointed to the success of using mediation as
an intervening step prior to conducting a formal due process hearing. The
comment indicated that States may wish to suggest that mediation be used to
resolve disputes with parents, provided that it was not mandatory and did not
operate to deny or delay a parent’s right to a due process hearing.
45 CFR §121a.506 and Comment (1977). 3 Based on States’ success in using
mediation for more than two decades, Congress included a specific provision
in the IDEA Amendments of 1997, Public Law (Pub. L.) 105-17. Under
section 615(e) of the IDEA, as amended in 1997, States were required to
establish mediation procedures to resolve disputes between parents and public
agencies, at a minimum, whenever a due process hearing was requested. In

2

The Education for All Handicapped Children Act refers to Public Law (Pub. L.) 94-142. It is the predecessor
statute to Part B of the IDEA.
3
After the U.S. Department of Education was created, the Part B regulations in part 121a of title 45 of the Code of
Federal Regulations (CFR) were removed and recodified in title 34 CFR part 300. The former 34 CFR §300.506
and its accompanying comment were unchanged and remained in effect until May 11, 1999.

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Questions and Answers on IDEA Part B Dispute Resolution Procedures

the 2004 Amendments to the IDEA, Congress broadened this provision to
require States to have procedures to offer mediation to resolve disputes
concerning any matter arising under Part B of the IDEA, including matters
arising prior to the filing of a due process complaint.
Question A-3:

What are the benefits of mediation?

Answer:

Although mediation cannot guarantee specific results, States’ experience in
using mediation has demonstrated a number of benefits. Mediation can be a
less expensive and less time-consuming method of dispute resolution between
parents and local educational agencies (LEAs), or, as appropriate, State
educational agencies (SEAs) or other public agencies. Mediation may result
in lower financial and emotional costs compared to due process hearings.
Assistance to States for the Education of Children with Disabilities and Early
Intervention Program for Infants and Toddlers with Disabilities, Final
Regulations, Analysis of Comments and Changes, 64 FR 12406, 12611 (Mar.
12, 1999). 4 Because mediation is voluntary and the parties have the flexibility
to devise their own remedies, mediation also may result in written agreements
where parties have an increased commitment to, and ownership of, the
agreement. Some parties report mediation as enabling them to have more
control over the process and decision-making. Additionally, because both
parties have been involved in developing the mediation agreement, remedies
can be individually tailored and contain workable solutions.
Mediation may also be helpful in resolving State complaints under
34 CFR §§300.151-300.153, thus avoiding the need for the SEA to issue a
written decision on the complaint. A State’s minimum State complaint
procedures must provide an opportunity for a parent who has filed a State
complaint and the public agency to voluntarily engage in mediation consistent
with 34 CFR §300.506. 34 CFR §300.152(a)(3)(ii).

Question A-4:

Who are the parties to mediation? Can States offer mediation to individuals
and organizations other than parents?

Answer:

Parties to mediation are parents 5 of a child with a disability, as defined in
34 CFR §300.30 and the LEA, or, as appropriate, a State agency in

4

This Q&A document includes references to Assistance to States for the Education of Children with Disabilities and
Early Intervention Programs for Infants and Toddlers with Disabilities, Final Regulations, Analysis of Comments
and Changes, 64 Federal Register 12406, 12537-12656 (Mar. 12, 1999). This document will be cited throughout
this Q&A as “64 FR” with the appropriate page number.
5
Under 34 CFR §300.30(a), the term “parent” means: (1) a biological or adoptive parent of a child; (2) a foster
parent, unless State law, regulations, or contractual obligations with a State or local entity prohibit a foster parent
from acting as a parent; (3) a guardian generally authorized to act as the child’s parent, or authorized to make
educational decisions for the child (but not the State if the child is a ward of the State); (4) an individual acting in
the place of a biological or adoptive parent (including a grandparent, stepparent, or other relative) with whom the

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Questions and Answers on IDEA Part B Dispute Resolution Procedures
accordance with 34 CFR §300.228, the SEA, or other public agencies 6 that
have responsibility for the education of children with disabilities.
34 CFR §300.506. Unlike State complaints, which can be filed by an
organization or individual other than the child’s parents, the IDEA
contemplates that mediation must be made available only to parents and
public agencies to resolve disputes involving any matter under 34 CFR part
300, including matters arising prior to the filing of a due process complaint.
While the IDEA does not require that mediation be made available to nonparents, there is nothing in the IDEA that would prohibit a State from making
mediation available to resolve disputes between public agencies,
organizations, or individuals other than the child’s parent regarding matters
arising under the IDEA and its implementing regulations.
34 CFR §300.152(a)(3)(ii) and (b)(1)(ii); see also Assistance to States for the
Education of Children with Disabilities and Preschool Grants for Children
with Disabilities, Final Regulations, Analysis of Comments and Changes, 71
FR 46540, 46604 (Aug. 14, 2006). 7
Question A-5:

What is a mediator?

Answer:

A mediator is a qualified and impartial individual who facilitates confidential
discussions to achieve a resolution of the dispute that is mutually agreeable to
the parties. The requirement that the mediator is qualified means that the
individual is trained in effective mediation techniques and knowledgeable in
laws and regulations relating to the provision of special education and related
services. 34 CFR §300.506(b)(1)(iii) and (b)(3)(i). The impartiality
requirement means that an individual who serves as a mediator may not be an
employee of the SEA or the LEA that is involved in the education or care of

child lives, or an individual who is legally responsible for the child’s welfare; or (5) a surrogate parent who has
been appointed in accordance with 34 CFR §300.519 or section 639(a)(5) of the IDEA. Under 34 CFR
§300.520(a), a State may provide that when a child with a disability reaches the age of majority under State law
that applies to all children (except for a child with a disability who has been determined to be incompetent under
State law), all rights accorded to parents under Part B of the IDEA transfer to the child. Therefore, if a student
who has reached the age of majority under State law is exercising parental rights, that student has the right to use
the IDEA’s dispute resolution procedures, including mediation under 34 CFR §300.506, the State complaint
procedures under 34 CFR §§300.151-300.153, the due process complaint and hearing procedures under 34 CFR
§§300.507-300.516, and the procedures for expedited due process hearings in 34 CFR §§300.532-300.533.
6
Under 34 CFR §300.33, the term “public agency” includes the SEA, LEAs, educational service agencies (ESAs),
nonprofit public 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.
7
This Q&A document includes references to Assistance to States for the Education of Children with Disabilities and
Preschool Grants for Children with Disabilities, Final Regulations, Analysis of Comments and Changes, 71
Federal Register 46540, 46547-46753 (Aug. 14, 2006). This document will be cited throughout this Q&A as “71
FR” with the appropriate page number.

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Questions and Answers on IDEA Part B Dispute Resolution Procedures

the child and must not have a personal or professional interest that conflicts
with the person’s objectivity. 34 CFR §300.506(c)(1).
Question A-6:

What are the types of issues that can be the subject of mediation?

Answer:

The mediation process offers an opportunity for parents and public agencies to
resolve disputes about any matter under 34 CFR part 300, including matters
arising prior to the filing of a due process complaint. 34 CFR §300.506(a).
This includes matters regarding the identification, evaluation, or educational
placement of a child with a disability, or the provision of a free appropriate
public education (FAPE) to a child with a disability, as well as any other
matters arising under 34 CFR part 300 that may not be the subject of a due
process complaint. An example of a matter that cannot be the subject of a due
process complaint but that can be the subject of mediation is a dispute
regarding the alleged failure of a particular SEA or LEA employee to be
highly qualified. 34 CFR §300.18(f); see also Question C-1 in Questions and
Answers on Highly Qualified Teachers Serving Children with Disabilities,
January 2007.

Question A-7:

Under what circumstances does the IDEA require that mediation be made
available to parents of parentally-placed private school children with
disabilities 8?

Answer:

The Department provided the following pertinent explanation in Question L-1
in Questions and Answers on Serving Children with Disabilities Placed by
Their Parents in Private Schools, April 2011:
As provided in 34 CFR §300.140(b), a parent of a child enrolled by
that parent in a private school has the right to file a due process
complaint [and use the mediation procedures in 34 CFR §300.506]
regarding the child find requirements in 34 CFR §300.131,
including the requirements in 34 CFR §§300.300 through 300.311.
The due process provisions in section 615 of the Act and
34 CFR §§300.504 through 300.519 of the regulations [which
include the mediation procedures in 34 CFR §300.506], do not
apply to issues regarding the provision of services to any particular
parentally-placed private school child with disabilities whom an
LEA has agreed to serve because there is no individual right to
services for such children under the IDEA. 34 CFR §300.140(a).

8

“Parentally-placed private school children with disabilities” means children with disabilities enrolled by their
parents in private, including religious, schools or facilities that meet the definition of elementary school in 34 CFR
§300.13 or secondary school in 34 CFR §300.36, other than children with disabilities covered under 34 CFR
§§300.145-300.147. 34 CFR §300.130.

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Questions and Answers on IDEA Part B Dispute Resolution Procedures
Disputes that arise about equitable services are, however, properly
subject to the State complaint procedures in 34 CFR §§300.151
through 300.153 [described in Section B of this Q&A document].
As provided in 34 CFR §300.140(c), a parent may file a signed
written complaint in accordance with the State complaint
procedures alleging that an SEA or LEA has failed to meet the
private school requirements, such as failure to properly conduct the
consultation process.
Under the State complaint procedures, when a parent files a State complaint
regarding the private school requirements or the child find requirements in
34 CFR §300.131, including the requirements in 34 CFR §§300.300-300.311,
the SEA must give the parent an opportunity to voluntarily engage in
mediation consistent with 34 CFR §300.506. 34 CFR §300.152(a)(3)(ii).
In addition, under 34 CFR §300.148 and Supreme Court case law, where
FAPE is at issue, parents of a parentally-placed private school child with a
disability may utilize the due process procedures, including mediation, if
seeking reimbursement for the private school placement based on a denial of
FAPE.
Question A-8:

Under what circumstances do the Part B regulations prevent public agencies
from using mediation?

Answer:

The Part B regulations prohibit a public agency from using mediation to seek
to override: (1) a parent’s failure to respond to a request for, or refusal to
consent to, the initial provision of special education and related services
(34 CFR §300.300(b)(3)(i)); (2) a parent’s revocation of consent for the
continued provision of special education and related services to his or her
child (34 CFR §300.300(b)(4)(ii)); 9 or (3) a parent’s refusal to consent, or
failure to respond to a request to provide consent, to an initial evaluation or
reevaluation of a child who is home schooled or parentally-placed in a private
school at parental expense (34 CFR §300.300(d)(4)(i)). Similarly, if parental
rights transfer to a student who has reached the age of majority under State
law, the public agency also may not use mediation to resolve disputes with
students in these three circumstances. 34 CFR §300.520. 10

9

Mediation, pursuant to 34 CFR §300.506(a), may be used to resolve any disputes under Part B of the Act and its
implementing regulations before a parent revokes consent for the continued provision of special education and
related services. However, for the same reasons that mediation is not allowed when a parent refuses to provide
initial consent for services (i.e., to ensure that the parent’s right to refuse consent for his or her child’s receipt of
special education and related services is meaningful), mediation is not appropriate once a parent revokes consent
for the provision of special education and related services. 73 FR 73008, 73016 (Dec. 1, 2008).
10
If a parent refuses consent to an initial evaluation or reevaluation of his or her child who is enrolled in a public
school or is seeking to be enrolled in a public school, or if a parent of such a child fails to respond to a request to
provide consent to an initial evaluation, the public agency may seek to engage in mediation with the parent if it
believes that the child would benefit from the evaluation or reevaluation.

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Questions and Answers on IDEA Part B Dispute Resolution Procedures

Question A-9:

What are some similarities and differences between mediation and due
process hearings?

Answer:

The goal of mediation and due process hearings under the IDEA is the same –
to achieve resolution of the disputed issues. Both processes generally involve
the same parties – parents and public agencies – but as noted in Question A-4,
States have the option of making mediation available to parties other than
parents. The mediator, in the case of mediation, and the hearing officer, in the
case of a due process hearing, must be a qualified and impartial individual.
Aside from these similarities, there are important differences.
Due process hearing procedures are more formal, and generally the parent and
the public agency may be represented by attorneys. The parties also may
choose to be accompanied and advised at a due process hearing by an
individual who has special knowledge or training with respect to the problems
of children with disabilities. However, whether individuals may be
represented by non-attorneys at due process hearings is determined by State
law. 34 CFR §300.512(a)(1). In contrast, the IDEA is silent on the presence
of lawyers or advocates at mediation. For more discussion of who may
accompany a party to a mediation session, see Question A-12.
As noted in Question A-6, the issues that can be the subject of mediation are
generally broader than the issues that can be raised in a due process complaint
requesting a due process hearing. 11
In mediation, the parties help set the ground rules and identify their potential
remedies, and the process must be voluntary at every phase. In contrast, the
due process procedures impose specific requirements on the parties and the
failure to adhere to such requirements generally has negative consequences.
34 CFR §§300.507-300.508 (due process complaints) and 300.510 (resolution
process). 12

11
12

Compare, 34 CFR §300.506(a) with 34 CFR §300.507(a).
An LEA is required to convene a resolution meeting within 15 days of receiving notice of the parent’s due process
complaint and prior to the initiation of a due process hearing, except that the resolution meeting need not be held
if the parties agree in writing to waive the meeting or agree to engage in mediation described in 34 CFR §300.506.
The IDEA also provides for a 30-day resolution period to resolve the dispute that is the basis for the parent’s due
process complaint. (Shortened timelines apply to the resolution process when a parent files a due process
complaint regarding a disciplinary matter to request an expedited due process hearing.) If the parties reach a
resolution of their dispute through this process, it must be reflected in a legally binding written settlement
agreement. 34 CFR §300.510. For more information on the resolution process, see Section D of this Q&A
document. For more information on expedited due process hearings, see Section E of this Q&A document.

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Questions and Answers on IDEA Part B Dispute Resolution Procedures

In mediation, the mediator acts as a facilitator and does not pass judgment on
specific issues, but the parties may choose to execute a legally binding written
agreement. In a due process hearing, the hearing officer is required to render
a final decision that contains findings of fact and decisions that would
generally include specific remedies. The hearing officer must render a
decision in accordance with 34 CFR §300.513(a), including determining
whether a child received FAPE. 13
While mediation is less formal than a due process hearing, all discussions that
occur in mediation, including the negotiation discussions, and discussions
involving any settlement positions of parties in a mediation session, are
confidential and may not be used as evidence in any subsequent due process
hearing or civil proceeding. 34 CFR §300.506(b)(8). The IDEA is silent as to
whether the mediation agreement itself must be kept confidential. However,
under 34 CFR §300.506(b)(6)(i), a legally binding mediation agreement must
include a statement that all discussions that occurred during the mediation
process will remain confidential and may not be used as evidence in any
subsequent due process hearing or civil proceeding. Regardless of whether
the parties enter into a legally binding agreement, all discussions that occurred
during the mediation also must be kept confidential. 34 CFR §300.506(b)(8).
In contrast, the parent has the right to have the due process hearing open to the
public. 34 CFR §300.512(c)(2). Also, the public agency, after deleting any
personally identifiable information, must transmit the due process hearing
findings and decisions to the State advisory panel and make those findings and
decisions available to the public. 34 CFR §§300.513(d) and 300.514(c).
Question A-10:

How long does the mediation process take?

Answer:

The IDEA does not specifically address the timing of the mediation process.
However, mediation is intended to facilitate prompt resolution of disputes
between parents and public agencies at the local level and decrease the use of
more costly and divisive due process proceedings and civil litigation. 64 FR
12611 (March 12, 1999). Therefore, a State’s procedures governing
mediation must ensure that: (1) the mediation process is not used to deny or
delay a parent’s right to a hearing on the parent’s due process complaint, or to
deny any other rights afforded under Part B of the IDEA; and (2) each session
in the mediation process is scheduled in a timely manner.
34 CFR §300.506(b)(1)(ii) and (5). The length of the mediation process
depends on a number of factors, including the type and complexity of issues
presented, the availability of the parties, and the willingness of the parties to

13

The IDEA statute and regulations provide that the hearing officer can find that a child did not receive FAPE on
substantive grounds and, under certain circumstances, based on procedural inadequacies. 34 CFR §300.513(a)(2).
See also 71 FR 46707 (August 14, 2006).

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Questions and Answers on IDEA Part B Dispute Resolution Procedures

cooperate. Also, the length of the mediation process will depend on the
individual techniques used by the mediator. Unless the parties agree to an
extension, the use of mediation may not affect the 30-day resolution period
timeline or the 45-day due process hearing timeline established in
34 CFR §§300.510 and 300.515. Likewise, the use of mediation may not
affect the 60-day State complaint resolution time limit established in
34 CFR §300.152(a) unless the parties agree to an extension.
34 CFR §300.152(b)(1)(ii).
Question A-11:

Does the IDEA address where mediation sessions are held?

Answer:

The IDEA provides that each session in the mediation process must be held in
a location that is convenient to the parties to the dispute.
34 CFR §300.506(b)(5). OSEP encourages the parties to work together to
determine a convenient location for a mediation session that is acceptable to
both parties. If the parties are comfortable with the location of the mediation
session, it is more likely that they will work cooperatively to achieve a
resolution of their dispute.

Question A-12:

Who may participate in, or attend, the mediation session? May parents or
public agencies bring their attorneys to mediation sessions and, if so, under
what circumstances?

Answer:

The IDEA does not address who may accompany a party at the mediation
session. Because successful mediation often requires that both parties
understand and feel satisfied with the plan for conducting a mediation session,
it is a best practice to discuss and disclose who, if anyone, will be
accompanying the party at the mediation session prior to that session.
Because mediation is voluntary on the part of the parties, either party has the
right not to participate for any reason, including if the party objects to the
person the other party wishes to bring to the mediation session. This could
include a party’s objection to the attendance of an attorney representing either
the parent or the public agency. For example, if the parent wishes to bring an
attorney to the mediation session and the LEA objects, the parent may choose
not to participate.

Question A-13:

May a child with a disability who is the subject of the mediation process
attend the mediation session with his or her parent?

Answer:

The IDEA does not address whether the child who is the subject of the
mediation can attend the mediation session; therefore, a parent may choose to
have his or her child present for all or part of the mediation session. The age
and maturity of the child should be considered in determining the
appropriateness of having the child attend the mediation with his or her
parent. For some youth with disabilities, observing and even participating in

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Questions and Answers on IDEA Part B Dispute Resolution Procedures
the mediation may be a self-empowering experience where they can learn to
advocate for themselves. Also, if a State provides that all rights accorded to
parents under the IDEA transfer to the student who has reached the age of
majority consistent with 34 CFR §300.520, then the right to participate in
mediation would also transfer to the student.
Question A-14:

What options are available if a parent declines a public agency’s request to
engage in mediation?

Answer:

As noted previously, the IDEA and its implementing regulations do not allow
a public agency to require a parent to participate in mediation because
mediation is voluntary. However, a public agency may establish procedures
to offer parents and schools that choose not to use the mediation process an
opportunity to meet, at a time and location convenient to the parents, with a
disinterested third party: (1) who is under contract with an appropriate
alternative dispute resolution entity, or a parent training and information
center or community parent resource center in the State established under
section 671 or 672 of the IDEA; and (2) who would explain the benefits of,
and encourage the use of, the mediation process to the parents.
34 CFR §300.506(b)(2). Public agencies that choose to establish these
procedures must make clear to parents and schools that they have the
opportunity to participate in the meeting with the disinterested third party, but
that their participation is voluntary. The disinterested third party would
explain the benefits of mediation, including that it is voluntary, and if
successful, could result in the resolution of the dispute without the need to use
more formal, costly, and adversarial due process proceedings.

Question A-15:

May a State use IDEA funds for recruitment and training of mediators?

Answer:

Yes. Under 34 CFR §300.704(b)(3)(ii), some portion of the funds the SEA
reserves for other State-level activities must be used to establish and
implement the mediation process required by section 615(e) of the IDEA and
34 CFR §300.506, including providing for the costs of mediators and support
personnel. This can also include the recruitment and training of mediators.

Question A-16:

Who pays for the mediation process?

Answer:

The IDEA provides that the State must bear the cost of the mediation process
required under section 615(e) of the IDEA and 34 CFR §300.506, including
the fee charged by the mediator and the costs of meetings described in
34 CFR §300.506(b)(2) to discuss the benefits of the mediation process.
Therefore, States may not require their LEAs to use Part B funds to pay the
costs of mediation. 71 FR 46624 (August 14, 2006). In addition, the IDEA
does not allow States that choose to make mediation available to parties other

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Questions and Answers on IDEA Part B Dispute Resolution Procedures
than parents or offer mediation on matters not addressed in the IDEA to use
IDEA funds for those activities.
Question A-17:

How is a mediator selected?

Answer:

The success of mediation is closely related to the mediator’s ability to obtain
the trust of both parties and commitment to the process. 64 FR 12612 (March
12, 1999). One important way to establish this trust is the selection of a
qualified and impartial mediator. To build trust and commitment in the
process of selecting a mediator, the IDEA provides several mechanisms for
selecting a mediator. The State must maintain a list of individuals who are
qualified mediators and knowledgeable in laws and regulations related to the
provision of special education and related services.
34 CFR §300.506(b)(3)(i). The State must select a mediator from this list on a
random, rotational, or some other impartial basis. 34 CFR §300.506(b)(3)(ii).
The State’s selection of mediators on an impartial basis would include
permitting the parties involved in a dispute to agree on a mediator. 71 FR
46695 (August 14, 2006).

Question A-18:

May more than one mediator be selected to conduct mediation under the
IDEA?

Answer:

No. The mediation process required under the IDEA specifies that the
mediation is conducted by a qualified and impartial mediator who is trained in
effective mediation techniques. 34 CFR §300.506(b)(1)(iii). The use of a
single mediator is important to ensure clear communication and
accountability. 64 FR 12611-12612 (March 12, 1999). Therefore, it is
impermissible for States to use a panel of mediators to resolve disputes
between parents and public agencies involving matters arising under
34 CFR part 300.

Question A-19:

May current LEA employees serve as mediators?

Answer:

The IDEA provides that a mediator under 34 CFR §300.506 may not be an
employee of the SEA or the LEA that is involved in the education or care of
the child and must not have a personal or professional interest that conflicts
with the person’s objectivity. 34 CFR §300.506(c)(1). Therefore, it is
impermissible under the IDEA for a current employee of an LEA that is
involved in the education or care of the child to serve as a mediator for his or
her own LEA. However, if an employee of a different LEA that is not
involved in the education or care of the child has no personal or professional
interest that would conflict with his or her objectivity and possesses the
requisite qualifications, that individual can serve as a mediator in a dispute
involving the parents and the LEA that their child attends. Notice of Proposed

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Questions and Answers on IDEA Part B Dispute Resolution Procedures
Rulemaking Implementing the IDEA Amendments of 2004, 70 FR 35782,
35808 (Jun. 21, 2005).
Question A-20:

Is it a conflict of interest if a mediator is paid by a State agency?

Answer:

No. A person who otherwise qualifies as a mediator is not an employee of an
LEA or State agency solely because he or she is paid by the State agency to
serve as a mediator. 34 CFR §300.506(c)(2).

Question A-21:

Does the IDEA address what would constitute effective mediation techniques?

Answer:

No. The IDEA requires that a mediation session be conducted by a qualified
and impartial mediator who is knowledgeable in laws and regulations relating
to the provision of special education and related services and is trained in
effective mediation techniques. 34 CFR §300.506(b)(1)(iii) and (b)(3)(i).
The IDEA requirement for the use of a qualified and impartial mediator
trained in effective mediation techniques helps ensure that decisions about the
effectiveness of specific techniques, such as the need for face-to-face
negotiation or telephone communications are based upon the mediator’s
independent judgment and expertise. Because of the need to allow flexibility
in the independent judgment and expertise of each mediator and the unique
issues of each dispute, other than providing for the confidentiality of
discussions that occur during mediation, the IDEA does not address the
specific techniques or procedures that States may require their mediators to
use. Whether formal training and certification for mediators are required is a
decision left to each State, depending on State policy. 71 FR 46695 (August
14, 2006).

Question A-22:

If the parties to the mediation process resolve their dispute, must the
agreement reached by the parties be in writing?

Answer:

Yes. If the parties resolve a dispute through the mediation process, the parties
must execute a legally binding written agreement that sets forth that resolution
and states that all discussions that occurred during the mediation process will
remain confidential and may not be used as evidence in any subsequent due
process hearing or civil proceeding. In order for the agreement to be legally
binding, it must be in writing. The agreement must be signed by both the
parent and a representative of the public agency who has the authority to bind
the agency. 34 CFR §300.506(b)(6). It is important that the parties
understand that the mediation agreement is legally binding and that it is
enforceable in any State court of competent jurisdiction or in a district court of
the United States or by the SEA, if applicable. 34 CFR §§300.506(b)(7) and
300.537. Parties are free to consult with others before entering into a
mediation agreement.

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Questions and Answers on IDEA Part B Dispute Resolution Procedures

Question A-23:

Are discussions that occur in the mediation process automatically confidential
or is the confidentiality of the mediation session a matter that must be
mediated and documented as a part of the mediation agreement?

Answer:

Under 34 CFR §300.506(b)(8), discussions that occur during the mediation
process must be confidential and may not be used as evidence in any
subsequent due process hearing or civil proceeding of any Federal court or
State court of a State receiving assistance under 34 CFR part 300. This
requirement is automatic and may not be altered or modified by parties to
mediation conducted under 34 CFR §300.506. Further, this confidentiality
requirement applies regardless of whether the parties resolve a dispute through
the mediation process. If the parties resolve a dispute through the mediation
process, they must execute a legally binding agreement that also includes a
statement that all discussions that occurred during the mediation process will
remain confidential. 34 CFR §300.506(b)(6)(i).

Question A-24:

Must a written mediation agreement be kept confidential?

Answer:

While discussions that occur during the mediation process must be
confidential, neither the IDEA nor its implementing regulations specifically
address whether the mediation agreement itself must remain confidential.
However, the confidentiality of information provisions in the Part B
regulations in 34 CFR §§300.611-300.626 and the Family Educational Rights
and Privacy Act (FERPA), and its implementing regulations in 34 CFR part
99 would apply. Further, there is nothing in the IDEA or its implementing
regulations that would prohibit the parties from agreeing voluntarily to include
in their mediation agreement a provision that limits disclosure of the
mediation agreement, in whole or in part, to third parties. Also, there is
nothing in the IDEA that would prohibit the parties from agreeing to permit
the agreement to be released to the public.

Question A-25:

Does the IDEA allow discussions that occur during the mediation process to
be disclosed during the resolution of a State complaint?

Answer:

No. As noted above, the IDEA requires that discussions that occur during the
mediation process must be confidential. 34 CFR §300.506(b)(8). Similarly, if
the parties execute a written agreement as a result of mediation, that
agreement must include a statement that all discussions that occurred during
the mediation process must remain confidential. 34 CFR §300.506(b)(6)(i).
Neither the IDEA nor its implementing regulations create exceptions to these
confidentiality requirements for discussions that occurred during the
mediation process when the State resolves a State complaint pursuant to
34 CFR §§300.151-300.153. Maintaining the confidentiality of mediation

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Questions and Answers on IDEA Part B Dispute Resolution Procedures
discussions during subsequent State complaint resolution activities is essential
to protect the integrity of both processes.
Question A-26:

May parties to the mediation process be required to sign a confidentiality
pledge or agreement prior to, or as a precondition, to the commencement of
the mediation process?

Answer:

No. In the Notice of Proposed Rulemaking implementing the IDEA
Amendments of 2004, the Department included a provision that would have
required parties to a mediation to sign a confidentiality pledge, without regard
to whether the mediation ultimately resolved the dispute. 70 FR 35870 (June
21, 2005). This proposed provision was based on Note 208 of Conf. Rpt.
(Conference Report) No. 108-779, p. 216 (2004). 14 However, the Department
decided to remove this proposed provision when the final Part B regulations
were published in 2006 based on the statutory requirement in section
615(e)(2)(G) that discussions that occur during the mediation process must
remain confidential and may not be used as evidence in any subsequent due
process hearing or civil proceeding. 71 FR 46696 (August 14, 2006).
Additionally, if the parties resolve a dispute through the mediation process, as
noted above, 34 CFR §300.506(b)(6)(i) requires that the legally binding
written agreement contain a statement that all discussions that occurred during
the mediation process will remain confidential and may not be used as
evidence in any subsequent due process hearing or civil proceeding.
34 CFR §300.506(b)(6)(i). This is so even if the parties do not enter into a
mediation agreement. However, nothing in these regulations is intended to
prevent States from allowing parties to sign a confidentiality pledge to ensure
that discussions during the mediation process remain confidential, irrespective
of whether the mediation results in a legally binding written agreement
resolving the dispute. 71 FR 46696 (August 14, 2006).

Question A-27:

May a State use nonjudicial mechanisms (e.g., State complaint procedures) to
resolve allegations that the public agency did not implement a mediation
agreement?

Answer:

Yes, as long as the use of those mechanisms is voluntary and does not operate
to deny or delay the parties’ right to seek judicial enforcement of mediation
agreements. The IDEA provides that parties who resolve a dispute through
the mediation process under 34 CFR §300.506 must execute a legally binding
written agreement that sets forth that resolution. 34 CFR §300.506(b)(6). A
written, signed mediation agreement is enforceable in any State court of

14

Conference Report refers to the joint explanatory statement of the Committee of Conference. This report
accompanied HR 1350, the bill to reauthorize the IDEA in 2004.

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Questions and Answers on IDEA Part B Dispute Resolution Procedures

competent jurisdiction or in a district court of the United States.
34 CFR §300.506(b)(7). However, notwithstanding the provisions in
34 CFR §§300.506(b)(7) addressing judicial enforcement of mediation
agreements and 300.510(d)(2), addressing judicial enforcement of resolution
agreements, nothing in part 300 would prevent the SEA from using other
mechanisms to seek enforcement of those agreements, provided that the use of
the State’s mechanisms is not mandatory and does not delay or deny a party
the right to seek enforcement of the written agreement in a State court of
competent jurisdiction or in a district court of the United States.
34 CFR §300.537. Therefore, in addition to judicial enforcement of mediation
and resolution agreements, 34 CFR §300.537 gives States the flexibility to
allow enforcement of those agreements through other State mechanisms such
as their State complaint resolution procedures in 34 CFR §§300.151-300.153.
71 FR 46604-46605 and 71 FR 46703 (August 14, 2006).
Question A-28:

May a parent file a State complaint on matters that were not addressed in, or
that arose after the time covered by, the mediation agreement?

Answer:

Yes. If the mediation agreement covers a specific time period and that time
period has passed, the parent may file a State complaint if the issues that were
the subject of the mediation agreement recur or if new issues arise. Also, if
there are issues that were not addressed by the mediation agreement, the
parent may file a State complaint to seek to resolve those issues. However,
once both parties have executed a legally binding mediation agreement, the
parties are bound by that agreement and a parent cannot seek to change the
terms of that agreement by filing a State complaint to alter that agreement.

Key regulatory references related to the mediation process, as cited above, can be found at
http://idea.ed.gov/explore/home, and include the following:
▪ 34 CFR §300.140
▪ 34 CFR §§300.151-300.153
▪ 34 CFR §300.506
▪ 34 CFR §300.520
▪ 34 CFR §300.537
▪ 34 CFR §§300.611-300.626
The Q&A documents cited in this section can be found at:
▪
▪

Questions and Answers on Highly Qualified Teachers Serving Children with Disabilities,
January 2007:
http://idea.ed.gov/explore/view/p/%2Croot%2Cdynamic%2CQaCorner%2C2%2C
Questions and Answers on Serving Children with Disabilities Placed by Their Parents in
Private Schools, April 2011:
http://idea.ed.gov/explore/view/p/%2Croot%2Cdynamic%2CQaCorner%2C1%2C

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Questions and Answers on IDEA Part B Dispute Resolution Procedures

B.

State Complaint Procedures

Authority:

The requirements for State complaint procedures are found in the regulations
at 34 CFR §§300.151-300.153.

Question B-1:

Why are States required to have complaint procedures when the IDEA statute
does not contain those procedures?

Answer:

States have been required to establish and implement their own State
complaint procedures, separate from their due process procedures, since 1977,
when the initial regulations implementing Part B of the EHA were published
(45 CFR §121a.602). The EHA regulations were moved to part 76 of the
Education Department General Administrative Regulations (EDGAR) in the
early 1980s and were returned to the Part B of the IDEA regulations in 1992
when the Department decided to move the regulations out of EDGAR and
place them in program regulations for the major formula grant programs. 71
FR 46600 (August 14, 2006). In responding to public comments questioning
the basis for the State complaint provisions in 34 CFR §§300.151-300.153, the
Department provided the following explanation when the final Part B
regulations were published:
Although Congress did not specifically detail a State complaint
process in the Act, we believe that the State complaint process is
fully supported by the Act and necessary for the proper
implementation of the Act and these regulations. We believe a
strong State complaint system provides parents and other
individuals an opportunity to resolve disputes early without having
to file a due process complaint and without having to go to a due
process hearing. 71 FR 46600 (August 14, 2006).
In addition to the regulations addressing State complaint procedures, there are
also a number of statutory provisions in the IDEA that recognize the State
complaint process. 15
Accordingly, through its Part B State complaint procedures, each State has a
powerful tool to address noncompliance with Part B of the IDEA and its
implementing regulations in a manner that both supports and protects the

15

The State complaint procedures are referred to in the following three sections of the IDEA: section
611(e)(2)(B)(i), requiring States to expend a portion of Part B funds that they can use for State-level activities for
complaint investigation; section 612(a)(14)(E), which provides that a parent is not prevented from filing a State
complaint under part 300 with the SEA about staff qualifications; and section 615(f)(3)(F), clarifying that nothing
in the Act’s due process provisions should be construed to affect the right of a parent to file a complaint with the
SEA.

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Questions and Answers on IDEA Part B Dispute Resolution Procedures

interests of children with disabilities and their parents and facilitates ongoing
compliance by the State and its public agencies with the IDEA and its
implementing regulations. 71 FR 46601 (August 14, 2006).
Question B-2:

What are some differences between a State complaint and a due process
complaint?

Answer:

Some differences include who can file each type of complaint, subject matter,
timing, procedures, and appeal processes. More parties are eligible to file a
State complaint than a due process complaint. As explained in Question B-3,
a State complaint may be filed by an organization or individual, including one
from another State. In contrast, only a parent 16 or a public agency 17 may file a
due process complaint. 18 Therefore, while a parent has the option of filing a
State complaint or a due process complaint to request a due process hearing,
an organization or individual, other than a child’s parent may not file a due
process complaint to request a due process hearing.
Another difference is the subject matter of each type of complaint. A State
complaint must allege that a public agency has violated a requirement of Part
B of the IDEA or the Part B regulations, but a due process complaint is
available for matters regarding the identification, evaluation, or educational
placement of a child with a disability, or the provision of FAPE to the child.
Therefore, while a matter that could be the subject of a due process complaint
could also be the subject of a State complaint, the reverse is not always true.
Next, the time period within which each type of complaint can be filed is not
the same. A State complaint must allege a violation that occurred not more
than one year prior to the date that the complaint is received in accordance
with 34 CFR §300.151; although States have the option of accepting
complaints alleging a violation that occurred within a longer time period (see
Question B-19). In contrast, a due process complaint must allege a violation
that occurred not more than two years before the parent or public agency
knew or should have known about the alleged action that forms the basis for
the due process complaint, or, if the State has an explicit time limitation, in
the time allowed by State law. 34 CFR §300.507(a)(2). The regulations
provide explicit exceptions to the two-year or State-established timeline.
34 CFR §300.511(f). See Question C-5 of this Q&A document for a
description of these exceptions.

16

See Footnote 5 in Section A of this Q&A document for the definition of the term “parent” and for information
about the transfer of rights accorded to parents under Part B of the IDEA to a student who has reached the age of
majority under State law.
17
See Footnote 6 in Section A of this Q&A document for the definition of the term “public agency.”
18
Compare, 34 CFR §300.153(a) with 34 CFR §300.507(a)(1).

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Questions and Answers on IDEA Part B Dispute Resolution Procedures
Different procedures apply to written decisions for State complaints and due
process complaints. 19 For State complaints, the SEA must issue a written
decision to the complainant that addresses each allegation in the complaint
within 60 days of the date that the complaint was filed, except that certain
specific extensions are allowable as described in Question B-21. In contrast,
if a parent files a due process complaint to request a due process hearing and
the due process hearing occurs, then a hearing decision must be issued not
later than 45 days after the expiration of the resolution period described in
34 CFR §300.510. Note though that a hearing officer may grant a specific
extension of the 45-day timeline at the request of either party. See Sections C
and D of this Q&A document.
The regulations are silent as to whether a decision on a State complaint may
be appealed, but see Question B-32 for a discussion of how State appeal and
reconsideration procedures can be implemented consistent with Part B. Also,
as described in the response to Question B-34, the Part B regulations do not
provide for Secretarial review of a final decision on a State complaint. In
contrast, a decision reached in a due process hearing is final, unless a party
aggrieved by the decision appeals by requesting a State-level review, if
applicable, or by bringing a civil action in an appropriate State or Federal
court. 34 CFR §§300.514 and 300.516.
Question B-3:

Who may file a State complaint?

Answer:

Any organization or individual, including one from another State, may file a
signed written State complaint that meets the requirements in
34 CFR §300.153. 34 CFR §300.151(a).

Question B-4:

Are there any mechanisms that an SEA must provide to assist parents and
other parties in filing a State complaint?

Answer:

Yes. Under 34 CFR §300.509, each SEA must develop model forms to assist
parents and other parties in filing a State complaint; however, the SEA or
LEA may not require the use of the model forms. Parents and other parties
may use the appropriate model form, or another form or document, so long as
the form or document that is used meets the content requirements in
34 CFR §300.153 for filing a State complaint. If the SEA’s model form
includes content not required by 34 CFR §300.153, the form must identify that
content and specify that it is optional.

19

Compare, 34 CFR §300.152(a) with 34 CFR §§300.507-300.508.

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Questions and Answers on IDEA Part B Dispute Resolution Procedures

Question B-5:

If a parent wishes to challenge a public agency’s eligibility determination,
may a parent file a State complaint?

Answer:

Yes. The Department’s long-standing position is that an SEA may not refuse
to resolve a parent’s State complaint challenging a public agency’s eligibility
determination through its complaint resolution procedures even though the
complaint concerns a matter that could also be the subject of a due process
complaint to request a due process hearing.

Question B-6:

How should an SEA resolve a State complaint challenging a public agency’s
eligibility determination?

Answer:

In resolving a State complaint challenging a public agency’s eligibility
determination, an SEA should determine not only whether the public agency
has followed the required Part B procedures to reach its determination, but
also whether the public agency has reached a determination consistent with
Part B requirements governing the evaluation and eligibility determination in
34 CFR §§300.304-300.311, in light of the individual child’s abilities and
needs. The SEA must determine whether the child was determined eligible
based on evidence that he or she met the definition of “child with a disability”
under 34 CFR §300.8 and fell within the age ranges specified at
34 CFR §§300.101 and 300.102. To do so, the SEA may need to review the
evaluation data in the child’s record or any additional data provided by the
parties to the complaint. In addition, the SEA may need to review the
explanation included in the public agency’s prior written notice to the parents
under 34 CFR §300.503 explaining why the agency made the challenged
eligibility determination (and/or refused to make an alternative determination
requested by the parents or others). If necessary, the SEA may need to
interview appropriate individuals to determine: (1) whether the public agency
followed procedures and applied standards that are consistent with State
standards, including the requirements of Part B; and (2) whether the public
agency’s eligibility determination is consistent with those standards and
supported by the evaluation and other data included in the child’s record or
the information provided by the parties to the complaint. The SEA may find
that the public agency has complied with Part B requirements if the public
agency has followed required procedures, applied required standards, and
reached a determination that is reasonably supported by the child-specific data
and is consistent with Part B.
If the SEA determines that the public agency’s eligibility determination is not
supported by the child-specific facts, the SEA can order the public agency, on
a case-by-case basis, to reconsider the eligibility determination in light of
those facts. In addition, a parent always has the right to challenge the public
agency’s eligibility determination by filing a due process complaint to request

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Questions and Answers on IDEA Part B Dispute Resolution Procedures
a due process hearing and may also engage in mediation with the public
agency to seek to resolve the dispute.
Question B-7:

If a parent wishes to challenge a public agency’s decision regarding the
provision or denial of FAPE to a child with a disability, may a parent file a
State complaint?

Answer:

Yes. As is true for State complaints challenging a public agency’s eligibility
determination, the Department’s long-standing position is that an SEA may
not refuse to resolve a State complaint alleging a denial of FAPE. This is true
even if the SEA believes that the parent should file a due process complaint
against the LEA or that the due process hearing process is a more appropriate
mechanism to resolve such disputes. If a parent believes that the program
offered or provided to his or her child with a disability does not constitute
FAPE and files a State complaint instead of a due process complaint, the SEA
must resolve the State complaint. This responsibility includes resolving a
State complaint by a parent, who has unilaterally placed his or her child in a
private school at her or her own expense, alleging a denial of FAPE.

Question B-8:

How should an SEA resolve a State complaint challenging a public agency’s
decision regarding the provision or denial of FAPE to a child with a
disability?

Answer:

In resolving a State complaint challenging whether a public agency’s decision
regarding the provision or denial of FAPE to a child is correct, an SEA may
need to determine not only whether the public agency has followed the
required Part B procedures to reach its determination, but also whether the
public agency has properly addressed the individual child’s abilities and
needs. Thus, the SEA would need to review any data provided by the parties
to the complaint and the child’s record, including evaluation data and any
explanations included in the public agency’s prior written notice to the parents
under 34 CFR §300.503 as to why the public agency made its decision
regarding the child’s educational program or services (and/or refused to make
an alternative decision requested by the parents or others). If necessary, the
SEA may need to interview appropriate individuals to determine: (1) whether
the agency followed procedures and applied standards that are consistent with
State standards, including the requirements of Part B; and (2) whether the
determination made by the public agency is consistent with those standards
and supported by the data on the individual child’s abilities and needs. The
SEA may find that the public agency has complied with Part B requirements if
the evidence clearly demonstrates that the agency has followed required
procedures, applied required standards, and reached a determination that is
reasonably supported by the child-specific data. 71 FR 46601
(August 14, 2006).

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Questions and Answers on IDEA Part B Dispute Resolution Procedures
If the SEA finds a violation of FAPE for the child, it must address the
violation. This includes, as appropriate, ordering an IEP Team to reconvene
to develop a program that ensures the provision of FAPE for that child or
ordering compensatory services. See Question B-10 for remedies. In
addition, a parent alleging a denial of FAPE has the right to challenge the IEP
Team’s decision by filing a due process complaint to request a due process
hearing and may also engage in mediation with the public agency to seek to
resolve the dispute.
Question B-9:

May the State complaint procedures, including the remedies outlined in
34 CFR §300.151(b), be used to address the problems of a group of children,
i.e., a complaint alleging systemic noncompliance?

Answer:

Yes. An SEA is required to resolve any complaint that meets the
requirements of 34 CFR §300.153. This includes a complaint alleging that a
public agency has not provided FAPE to an individual child or a group of
children in accordance with Part B. As noted in the response to Question B-1,
State complaint procedures provide a powerful tool to enable a State to fulfill
its general supervisory responsibility to monitor implementation of Part B
requirements in the State. This responsibility applies to the monitoring of its
public agencies’ compliance with Part B with respect to both systemic and
child-specific issues. 34 CFR §§300.149 and 300.600(a).
A State complaint alleging systemic noncompliance could be one that alleges
that a public agency has a policy, procedure, or practice applicable to a group
of children that is inconsistent with Part B or the Part B regulations. An
example of a complaint alleging systemic noncompliance is a complaint
alleging that an LEA has a policy, procedure, or practice that would limit
extended school year (ESY) services to children in particular disability
categories or the type, amount, or duration of services that can be provided as
ESY services.
If the complaint names certain children and alleges that the same violations
apply to a class, category, or similarly situated children, the SEA must review
all relevant information to resolve the complaint, but would not need to
examine additional children if no violations are identified in the policies,
procedures, or practices for the named children. However, if the SEA
identifies violations for any of the named children, the SEA’s complaint
resolution must include measures to ensure correction of the violations for all
children affected by the alleged systemic noncompliance described in the
complaint. Additionally, the SEA would need to examine the policies,
procedures, and practices that may be causing the violations and the SEA’s
written decision on the complaint must contain procedures for effective
implementation of that decision, including corrective actions to achieve
compliance. 34 CFR §§300.152(b)(2)(iii), 300.149(a)(2)(ii), and 300.600(e).

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Questions and Answers on IDEA Part B Dispute Resolution Procedures

Question B-10:

If there is a finding in a State complaint that a child or group of children has
been denied FAPE, what are the remedies?

Answer:

In resolving a complaint in which there is a finding that a public agency has
not provided appropriate services, whether to an individual child or a group of
children, an SEA, through its general supervisory authority under Part B, is
required to address: (1) the failure to provide appropriate services, including
corrective action appropriate to address the needs of the child (such as
compensatory services or monetary reimbursement); and (2) appropriate
future provision of services for all children with disabilities.
34 CFR §300.151(b). Thus, an SEA, pursuant to its general supervisory
authority, has broad flexibility to determine appropriate remedies to address
the denial of appropriate services to an individual child or group of children.

Question B-11:

How does an SEA resolve a complaint when an organization or individual,
other than a child’s parent, files a State complaint regarding a specific child?

Answer:

An SEA is required to resolve any complaint that meets the requirements of
34 CFR §300.153 filed by an organization or individual, including one from
another State. This includes a signed written complaint alleging that a public
agency has violated a requirement of Part B of the IDEA or the Part B
regulations regarding a particular child with a disability, regardless of whether
the State complaint has been filed by the child’s parent or by an organization
or individual other than the child’s parent. Thus, in resolving such a
complaint, the SEA would be required to follow the minimum State complaint
procedures in 34 CFR §300.152 as it would for any other State complaint that
alleges that a public agency has violated a requirement of Part B of the IDEA
or the Part B regulations.
If a complaint is filed by an organization or individual other than the parent,
parental consent must be obtained before an SEA may provide personally
identifiable information about a child to a non-parent complainant as part of
the complaint decision. 34 CFR §§99.30 and 300.622.
If parental consent is not obtained, any personally identifiable information
about the child who is the subject of the complaint must be redacted from the
SEA’s written decision on the complaint. Because the complaint resolution
would likely involve the child’s personally identifiable information, it may not
be possible for the SEA’s decision to be issued to a non-parent complainant.
The SEA must make this determination case by case, but should not withhold
relevant nonpersonally identifiable information from the complainant
regarding the results of the SEA’s complaint resolution. Moreover, even if the
SEA would be unable to issue a written decision to the complainant because
of its personally identifiable nature, the SEA still must ensure that it resolves
the complaint, issues a written decision that addresses each allegation in the

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Questions and Answers on IDEA Part B Dispute Resolution Procedures
complaint, and ensures timely implementation of its written decision,
including, if appropriate, corrective actions to achieve compliance and
remedies for the denial of appropriate services. 34 CFR §§300.152(b)(2) and
300.151(b).
Question B-12:

How does an SEA resolve a complaint against itself?

Answer:

An SEA must resolve a complaint alleging that it has violated a requirement of Part B or the Part B regulations just as
it must resolve any other signed written complaint that meets the requirements in 34 CFR §300.153. Under
34 CFR §300.33, the term “public agency” includes the SEA. Therefore, an SEA must resolve a complaint alleging
that the SEA (a public agency) has violated a requirement of Part B or the Part B regulations.

In resolving a complaint filed against the SEA, an SEA may either appoint its
own personnel or may make arrangements with an outside party to resolve the
complaint. Regardless of whether the SEA chooses to resolve the complaint
on its own or chooses to use an outside party, the SEA must ensure that all of
the procedures in 34 CFR §§300.151-300.153 are followed. Specifically, an
independent on-site investigation must be conducted, if necessary, consistent
with 34 CFR §300.152(a)(1) and the SEA must take appropriate steps to
ensure this occurs. Additionally, the SEA must ensure that all relevant
information is reviewed and that an independent determination is made as to
whether the public agency (in this case the SEA) has violated a requirement of
Part B or the Part B regulations with respect to the complaint.
34 CFR §300.152(a)(4).
The SEA also must ensure that it or an outside party, whichever resolves the
complaint, considers all available remedies in the case of a denial of
appropriate services consistent with 34 CFR §300.151(b). Regardless of
whether the complaint is resolved by the SEA or by an outside party that the
SEA designates to resolve the complaint, the SEA must comply with all
corrective actions, including remedies, set out in the final decision. 71 FR
46602 (August 14, 2006).
Question B-13:

May States establish procedures permitting a State complaint to be filed
electronically?

Answer:

Yes. Under 34 CFR §300.153(a), a complaint must be signed and written.
This regulation does not address whether States can accept State complaints
filed electronically with digital or electronic signatures. Because the IDEA
does not prohibit this practice, States considering accepting, or choosing to
accept, electronic submissions of State complaints with electronic signatures
would need to ensure that there are appropriate safeguards to protect the

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Questions and Answers on IDEA Part B Dispute Resolution Procedures

integrity of the process. 71 FR 46629 (August 14, 2006) (regarding whether
States can accept electronic parental consent).
In developing the appropriate safeguards, States should consider that the
Department has addressed criteria for accepting electronic signatures to satisfy
the signed written consent requirements in the FERPA regulations in
34 CFR part 99. Under 34 CFR §99.30(d), “signed and dated written consent”
may include a record and signature in electronic form that identifies and
authenticates a particular person as the source of the consent and indicates
such person’s approval of the information contained in the electronic consent.
Applying these criteria to electronic complaint submissions, it would be
reasonable for States that either are considering accepting, or have chosen to
accept, electronic filings of Part B State complaints with electronic signatures
to ensure that their process includes safeguards sufficient to identify or
authenticate the complainant and indicate that the complainant approves of the
information in the complaint. In other words, these safeguards should be
sufficient to ensure that an organization or individual submitting a complaint
electronically understands that the complaint has the same effect as if it were
filed in writing. States would also need to ensure that the same confidentiality
requirements that apply to signed written State complaints apply to State
complaints filed electronically. 34 CFR §§300.611-300.626. States that are
considering or have chosen to accept State complaints filed electronically with
electronic signatures also should consult any relevant State laws governing
electronic transactions.
Question B-14:

Must States have procedures for tracking when State complaints are received,
including State complaints filed electronically, if applicable?

Answer:

Yes. Each SEA must include in its minimum State complaint procedures a
time limit of 60 days after the date that the complaint is filed to resolve the
complaint. 34 CFR §300.152(a). This includes all signed written complaints,
including complaints filed electronically, if applicable. The Department
interprets this requirement to mean that States must ensure that the 60-day 20
time limit for complaint resolution begins on the date that a complaint is
received. While a State has some discretion in determining when a complaint
is considered received, the SEA must ensure that its procedures allow for the
timely resolution of complaints and are uniformly applied, consistent with
34 CFR §300.152(a) and (b). For example, if a State complaint is filed
electronically on a day that is not considered a business day (e.g., the
weekend), the State could consider the complaint received on the date the
complaint is filed or on the next business day.

20

Under 34 CFR §300.11(a), “[d]ay means calendar day unless otherwise indicated as business day or school day.”

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Questions and Answers on IDEA Part B Dispute Resolution Procedures
Under 34 CFR §300.151(a)(2), the State must adopt procedures for widely
disseminating to parents and other interested individuals, including parent
training and information centers, community parent resource centers,
protection and advocacy agencies, independent living centers, and other
appropriate entities, the State complaint resolution procedures under
34 CFR §§300.151-300.153. These must include criteria the State uses for
determining when the State considers a State complaint to be received.
Likewise, information about filing and timelines for resolving State
complaints must also be included in the explanation of State complaint
procedures in the procedural safeguards notice to parents in accordance with
34 CFR §300.504(c)(5). The procedural safeguards notice must be provided
to parents at least one time a school year, upon receipt of the first State
complaint in a school year, and in the other circumstances specified in
34 CFR §300.504(a).
Question B-15:

What is an SEA’s responsibility to resolve a complaint if the complaint
submitted to the SEA does not include all of the content required in
34 CFR §300.153?

Answer:

The regulations do not specifically address an SEA’s responsibility in this
situation. Under 34 CFR §300.153, a complaint must include a statement that
a public agency has violated a requirement of Part B of the Act or the Part B
regulations; the facts on which the statement is based; and the signature and
contact information for the complainant. If the complaint alleges a violation
with respect to a specific child, the complaint also must include the name and
address of the residence of the child; the name of the school the child is
attending; in the case of a homeless child or youth, available contact
information for the child and the name of the school the child is attending; a
description of the problem of the child, including facts relating to the problem;
and a proposed resolution of the problem to the extent known and available to
the party at the time the complaint is filed. When an SEA receives a
complaint that is not signed or does not include contact information, or any
other information required in 34 CFR §300.153(b), the SEA may choose to
dismiss the complaint. 71 FR 46606 (August 14, 2006). In general, a State
complaint may not be dismissed for not including a proposed resolution of the
problem unless an SEA can clearly demonstrate that the resolution is known
to the complaining party at the time the complaint is filed.
In general, an SEA should adopt proper notice procedures for such situations.
For example, an SEA could provide notice indicating that the complaint will
be dismissed for not meeting the content requirements or that the complaint
will not be resolved and the time limit not commence until the missing content
is provided. The SEA could also include this information in its written
procedures for resolving State complaints pursuant to 34 CFR §300.151(a).

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Questions and Answers on IDEA Part B Dispute Resolution Procedures
To ensure that a State’s complaint resolution procedures are not inconsistent
with Part B, in general, an SEA may not adopt procedures that limit or
diminish the parent’s or other complainant’s ability to present a State
complaint and obtain timely resolution of the issues presented.
Question B-16:

May an SEA dismiss a complaint alleging systemic noncompliance because
the complainant did not include a proposed resolution of the problem?

Answer:

No. Under 34 CFR §300.153(b)(4)(v), the requirement for the complaint to
include a proposed resolution of the problem to the extent known and
available to the party at the time the complaint is filed applies only to
complaints alleging violations with respect to a specific child.

Question B-17:

What is an SEA’s responsibility to resolve a complaint if the complainant
does not provide a copy of the complaint to the LEA or public agency serving
the child at the same time the complaint is filed with the SEA?

Answer:

Under 34 CFR §300.153(d), the complainant must provide a copy of the
complaint to the LEA or public agency serving the child at the same time the
complaint is filed with the SEA. The regulations do not specifically address a
situation where the complainant only provides the complaint to the SEA and
does not forward it to the LEA or public agency serving the child. An SEA
should include the actions that will be taken under these circumstances in its
complaint procedures established under 34 CFR §300.151(a) and provide
proper notice of its procedures. An SEA’s complaint procedures should
address how the complainant’s failure to provide the required copy to the LEA
or public agency serving the child will affect the initiation of the complaint
resolution and/or the time limit for completing the complaint resolution.
For example, an SEA could adopt procedures that include advising the
complainant in writing that the complaint resolution will not proceed and the
60-day time limit will not begin until the complainant provides the LEA or
public agency serving the child with a copy of the complaint as required by
the regulations. 71 FR 46606 (August 14, 2006). As an additional protection
for parents, consistent with 34 CFR §300.199, we encourage States to adopt
procedures that ensure that the SEA provides a copy of the complaint to the
LEA or public agency serving the child if the complainant does not do so.
To ensure that a State’s complaint resolution procedures are not inconsistent
with Part B, in general, an SEA may not adopt procedures that limit or
diminish the parent’s or other complainant’s ability to present a State
complaint and obtain timely resolution of the issues presented.

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Questions and Answers on IDEA Part B Dispute Resolution Procedures

Question B-18:

May a complaint be filed with an SEA over an alleged violation that occurred
more than one year prior to the date of the complaint?

Answer:

Prior to October 13, 2006, (the effective date of the August 14, 2006, Part B
regulations), States were required to accept complaints that alleged violations
that occurred not more than one year prior to the date that the complaint was
received, unless a longer period of time was reasonable because the violation
was continuing or the complainant was requesting compensatory services for a
violation that occurred not more than three years prior to the date that the
complaint was received. 64 FR 12465 (March 12, 1999). This provision was
removed in the 2006 Part B regulations. Under 34 CFR §300.153(c), a
complaint must allege a violation that occurred not more than one year prior
to the date that the complaint is received. This requirement applies even if the
alleged violation is continuing or if the complainant is requesting
compensatory services. However, as described in Question B-19, a State may
choose to accept and resolve complaints alleging violations that occurred
more than one year prior to the SEA’s receipt of the complaint as an
additional protection for parents. 71 FR 46606 (August 14, 2006).

Question B-19:

Does an SEA have the option to accept and resolve complaints alleging
violations of the IDEA that occurred more than one year prior to the SEA’s
receipt of the complaint? What is the SEA’s responsibility if such a procedure
is permitted?

Answer:

As with other procedural protections, a State may elect to provide more
protections for children with disabilities and their parents than those
specifically required by the IDEA, provided that the State procedure is not
inconsistent with the IDEA. Therefore, an SEA may adopt a policy or
procedure to accept and resolve complaints regarding alleged violations that
occurred outside the one-year timeline in 34 CFR §300.153(c). In general,
such a procedure would be treated as an additional protection for children with
disabilities and their parents and not inconsistent with Part B. 71 FR 46606
(August 14, 2006).
Pursuant to 34 CFR §300.199(a)(2), the State must identify in writing to LEAs
located in the State and the Secretary of Education any rule, regulation, or
policy as a State-imposed requirement that is not required by Part B of the
IDEA and Federal regulations. Stakeholders, including parents, parent
training and information centers, protection and advocacy agencies,
independent living centers, and other appropriate entities, must be informed of
the State’s complaint resolution procedures pursuant to
34 CFR §300.151(a)(2). Therefore, if an SEA adopts a policy or procedure to
accept and resolve complaints alleging violations that occurred outside of the
one-year timeline, stakeholders must be informed of the policy or procedure
through the State’s complaint procedures so that they will be able to make

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Questions and Answers on IDEA Part B Dispute Resolution Procedures
informed decisions about how and when they may use the State complaint
procedures. Additionally, a public agency’s notice of procedural safeguards,
which must be given to parents one time a year and upon receipt of the first
State complaint under 34 CFR §§300.151-300.153 in a school year, must
include a full explanation of all of the procedural safeguards available to
parents. This notice must include an explanation of the opportunity to present
and resolve complaints through the State complaint procedures, including,
among other information, the time period in which a parent may file a State
complaint. 34 CFR §300.504(c)(5)(i).
Question B-20:

Must an SEA conduct an independent on-site investigation for every
complaint filed?

Answer:

No. An SEA is required to conduct an independent on-site investigation only
if it determines that such an investigation is necessary.
34 CFR §300.152(a)(1). The standards to be used in determining whether to
conduct an on-site investigation are left to each State. If the SEA determines
that there is no need to conduct an independent on-site investigation, the SEA
must comply with all other applicable requirements in 34 CFR §300.152(a)
and (b) in resolving the complaint.

Question B-21:

When can the SEA extend the 60-day time limit for resolution of a State
complaint? Can OSEP identify examples of situations when States have not
been permitted to extend the 60-day complaint resolution time limit due to
exceptional circumstances?

Answer:

The regulations specify two allowable reasons for extending the 60-day time
limit for complaint resolution. Under 34 CFR §300.152(b)(1), the SEA may
extend this time limit only if: (1) exceptional circumstances exist with respect
to a particular complaint; or (2) the parent (or individual or organization, if
mediation or other alternative means of dispute resolution is available to the
individual or organization under State procedures) and the public agency
involved agree to extend the time to engage in mediation or other alternative
means of dispute resolution, if available in the State. States need to determine
case by case whether it is appropriate to extend the 60-day resolution time
limit for a particular complaint due to exceptional circumstances.
OSEP has found that the following do not constitute exceptional
circumstances that would warrant an extension of the 60-day time limit: State
staff shortages or heavy caseloads; school vacations and breaks; the use of
mediation or alternative dispute resolution without agreement by the parent
(or individual or organization under State procedures) and the public agency
to extend the 60-day time limit.

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Question B-22:

Must an SEA make mediation available when a State complaint is filed?

Answer:

Under 34 CFR §300.152(a)(3)(ii), the SEA must provide an opportunity for a
parent who has filed a State complaint and the public agency to voluntarily
engage in mediation consistent with 34 CFR §300.506. This should provide a
potential way of promptly resolving disputes between parents and public
agencies at the local level. Resolving a complaint through mediation could
also prove to be less costly if it avoids the need for the SEA to resolve the
complaint, particularly if the SEA were to determine that an on-site
investigation would be necessary. Ultimately, children with disabilities will
be the beneficiaries of a local resolution because disputes about their
educational programs can be resolved in a more timely manner. 71 FR 46603
(August 14, 2006).
While the IDEA does not require that mediation under 34 CFR §300.506 be
made available to parties other than parents, there is nothing in the IDEA or
its implementing regulations that would prevent States from offering
voluntary mediation, or other alternative means of dispute resolution, if
available in the State, to parties other than parents. 71 FR 46603-46604
(August 14, 2006). This matter is also discussed in Question A-4 of this Q&A
document. An SEA may not require, but may request, that mediation (under
34 CFR §300.506) or other forms of alternative dispute resolution made
available in the State take place before its complaint resolution.

Question B-23:

What are the procedures related to an extension of the time limit for resolving
a State complaint when the parties are engaged in mediation?

Answer:

Under 34 CFR §300.152(b)(1)(ii), the 60-day time limit for complaint
resolution may be extended if the parent (or individual or organization, if
mediation or other alternative means of dispute resolution is available to them
under State procedures) and the public agency involved agree to extend the
time to engage in mediation under 34 CFR §300.152(a)(3)(ii), or to engage in
other alternative means of dispute resolution, if available in the State. The
SEA may not treat mediation, in and of itself, as an exceptional circumstance
under 34 CFR §300.152(b)(1)(i) that would warrant an extension of the time
limit for complaint resolution. Rather, the parties engaged in mediation or
other alternative means of dispute resolution, if available in the State, must
agree to extend the time limit.
If the parties involved agree to engage in mediation once the State complaint
is filed but do not agree to the extension of the complaint resolution time limit
and the mediation is not successful in resolving the dispute, the State must
ensure that the complaint is resolved within 60 days after the complaint was
filed, as specified in 34 CFR §300.152(a). At any time that either party
withdraws from mediation or other alternative means of dispute resolution, or

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Questions and Answers on IDEA Part B Dispute Resolution Procedures
withdraws agreement to the extension of the time limit, the extension of the
time limit for complaint resolution would end. 71 FR 46604 (August 14,
2006).
Question B-24:

If the complainant is a party other than a parent, may the parties use the
mediation process to attempt to resolve the issues in the State complaint?

Answer:

Under 34 CFR §300.152(a)(3)(ii), an SEA is required to offer the parent and
the public agency the opportunity to voluntarily engage in mediation to
resolve the issues in a State complaint when the parent has filed a State
complaint. The regulations do not require an SEA to provide an opportunity
for mediation when an organization or individual other than the child’s parent
files a State complaint. However, the Department encourages SEAs and their
public agencies to consider alternative means of resolving disputes between
public agencies and organizations or other individuals, at the local level,
consistent with State law and administrative procedures. It is up to each State,
however, to determine whether non-parents can use mediation or other
alternative means of dispute resolution. 71 FR 46604 (August 14, 2006).

Question B-25:

Can an SEA dismiss allegations raised in a State complaint that were
addressed in a previous settlement agreement resulting from mediation or the
resolution process?

Answer:

If a State complaint alleges violations specific to the child who is the subject
of a prior settlement agreement resulting from mediation or the resolution
process, the SEA may determine that the settlement agreement is binding on
the parties as to those issues and inform the complainant to that effect.
However, if the State complaint alleges systemic noncompliance or the State
has reason to believe that the violations are systemic, it must resolve the
allegations through its complaint resolution procedures. If the State finds
systemic violations, it must provide for appropriate remedies for all students
covered in the complaint, which could include prescribing in its complaint
decision remedies for the denial of appropriate services, including corrective
actions to address both past violations and future compliance.
34 CFR §§300.151(b) and 300.152(b)(2)(iii).

Question B-26:

Can an issue that is the subject of a State complaint also be the subject of a
due process complaint requesting a due process hearing?

Answer:

Yes. An issue in a State complaint can also be the subject of a due process
complaint requesting a due process hearing, as long as the issue relates to a
matter regarding the identification, evaluation, or educational placement of a
child with a disability, or the provision of FAPE to the child, as described in
34 CFR §300.507(a)(1) or to a disciplinary matter as described in
34 CFR §§300.530-300.532. If a due process complaint is filed on an issue

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Questions and Answers on IDEA Part B Dispute Resolution Procedures
that is also the subject of a pending State complaint, the State must set aside
any part of the State complaint that is being addressed in the due process
hearing until the hearing officer issues a final decision. However, any issue in
the State complaint that is not part of the due process action must be resolved
using the 60-day time limit and procedures described in 34 CFR §300.152(a)
and (b). 34 CFR §300.152(c)(1).
Question B-27:

If a parent has filed a State complaint and the State’s resolution is still in
process, can the parent request a due process hearing pending resolution of the
State complaint?

Answer:

Yes. A parent who has filed a State complaint is not prevented from filing a
due process complaint on the same or similar issues. However, if a parent
files a due process complaint and the hearing officer rules on that issue, the
due process hearing decision is binding as to that issue. Therefore, while the
State may have begun the process of resolving a State complaint prior to the
receipt of a due process complaint, pursuant to 34 CFR §300.152(c)(1), the
State must set aside any issues in the State complaint that are being addressed
in the due process hearing. As indicated in Question B-26, any issue in the
State complaint that is not part of the due process action must be resolved
using the State complaint resolution procedures in accordance with
34 CFR §300.152(a) and (b). 34 CFR §300.152(c).

Question B-28:

May a State complaint be filed on an issue that was previously decided in a
due process hearing?

Answer:

Under 34 CFR §300.152(c)(2)(i), if a hearing officer has previously ruled on
an issue at a due process hearing involving the same parties, the decision is
binding on that issue. If a State complaint involving the same parties is filed
on the same issue that was previously decided by the hearing officer, the SEA
must inform the complainant that the hearing decision is binding on that issue.
34 CFR §300.152(c)(2)(ii). However, the SEA must use its State complaint
resolution procedures to resolve any issue in the complaint that was not
decided in the due process hearing. In determining that it will not resolve an
issue in a State complaint because that issue was previously decided in a due
process hearing, the SEA must ensure that the legal and factual issues are
identical.

Question B-29:

May the State complaint procedures be used to resolve a complaint that
alleges that a public agency has failed to implement a hearing officer’s
decision?

Answer:

Yes. Under 34 CFR §300.152(c)(3), if a State complaint alleges that a public
agency has failed to implement a due process hearing decision, the complaint
must be resolved by the SEA.

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Questions and Answers on IDEA Part B Dispute Resolution Procedures

Question B-30:

Once an SEA resolves a State complaint, what must the SEA’s written
decision contain?

Answer:

Within 60 days of the date that the complaint was filed, subject to allowable
extensions, an SEA is required to issue a written decision to the complainant
that addresses each allegation in the complaint and contains: (1) findings of
fact and conclusions; and (2) the reasons for the SEA’s final decision.
34 CFR §300.152(a)(5). In addition, under 34 CFR §300.152(b)(2), the SEA
must have procedures for effective implementation of its final decision, if
needed, including technical assistance activities, negotiations, and corrective
actions to achieve compliance. Therefore, if necessary to implement the
SEA’s final decision, the SEA’s written decision must contain remedies for
the denial of appropriate services, including corrective actions that are
appropriate to address the needs of the child or group of children involved in
the complaint. If appropriate, remedies could include compensatory services
or monetary reimbursement, and measures to ensure appropriate future
provision of services for all children with disabilities. 34 CFR §300.151(b).

Question B-31:

What is the SEA’s responsibility after a written decision on a State complaint
is issued?

Answer:

The SEA must ensure that the public agency involved in the complaint
implements the written decision on the complaint in a timely manner. The
State’s complaint procedures must include procedures for effective
implementation of the SEA’s final decision, if needed, including technical
assistance activities, negotiations, and corrective actions to achieve
compliance. 34 CFR §300.152(b)(2).
To ensure corrective action and pursuant to its general supervisory
responsibilities in 34 CFR §§300.149 and 300.600, the SEA must inform the
public agency that is involved in the complaint of any findings of
noncompliance and the required corrective action, and ensure that the
corrective action is completed as soon as possible and within the timeframe
specified in the SEA’s written decision, and in no case later than one year of
the State’s identification of the noncompliance. 34 CFR §300.600(e).

Question B-32:

May a State complaint decision be appealed?

Answer:

The regulations are silent as to whether a State complaint decision may be
appealed. The regulations neither prohibit nor require the establishment of
procedures to permit either party to request reconsideration of a State
complaint decision, although as noted below, the parent or public agency may
use mediation or file a due process complaint to request a due process hearing
to resolve disputed issues.

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Questions and Answers on IDEA Part B Dispute Resolution Procedures
Under 34 CFR §300.152(a), the SEA is required to issue a written decision on
each complaint within 60 days after the complaint is filed, unless the SEA
extends the time limit because exceptional circumstances exist with respect to
the particular complaint or the parties agree to extend the time limit to engage
in mediation, or other alternative means of dispute resolution, if available in
the State. This means that, absent an allowable extension of the time limit for
a particular complaint, the State must issue a final decision within 60 days of
the date the complaint is filed.
A State may choose to establish procedures for reconsideration of complaint
decisions that would result in a decision on the reconsideration within 60 days
of the date on which the complaint was originally filed. Alternatively, a State
may establish procedures for the reconsideration when the reconsideration
process would not be completed until later than 60 days after the original
filing of the complaint, but only if the public agency’s implementation of any
corrective action required in the SEA’s final decision is not delayed pending
the reconsideration process. Therefore, if the reconsideration process is
completed later than 60 days after the filing of the State complaint, the public
agency must implement any required corrective actions while the
reconsideration process is pending.
Also, if the issue is still in dispute, the parent or public agency may, if they
have not already done so, use mediation under 34 CFR §300.506 or file a due
process complaint to request a due process hearing in accordance with
34 CFR §§300.507-300.508, subject to any applicable exceptions described in
Questions C-9 and C-10 of this Q&A document.
Question B-33:

Is a State required to make written decisions on State complaints available to
the public?

Answer:

No. There is no requirement in Part B of the IDEA for a State to make written
State complaint decisions available to the public. If the State chooses to do
so, through such means as posting on its Web site, it must ensure that the
confidentiality of any personally identifiable information in the complaint
decision is protected from unauthorized disclosure. 34 CFR §§300.622 and
99.30. An SEA also should consult State law for its public records
requirements.

Question B-34:

When did the Department remove the Secretarial review provision from the
Part B regulations? Is an SEA required to develop a process to replace
Secretarial review?

Answer:

The prior regulation in 34 CFR §300.661(d), permitting Secretarial review of
State complaints filed under 34 CFR §§300.660-300.662 (the predecessor to
34 CFR §§300.151-300.153), was removed when the 1999 final Part B

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Questions and Answers on IDEA Part B Dispute Resolution Procedures
regulations were published, and took effect on May 11, 1999. Under the prior
regulation, an organization or individual who was dissatisfied with the State’s
complaint resolution had the option of requesting that the Office of Special
Education and Rehabilitative Services review the SEA’s final decision. The
decision whether to grant Secretarial review was discretionary and most
requests for Secretarial review were denied because the Department was not
in the position to evaluate factual disputes in individual cases. 64 FR 12646
(March 12, 1999). The regulations do not require a State to establish a
procedure to replace Secretarial review.
Key regulatory references related to the State complaint process, as cited above, can be found at
http://idea.ed.gov/explore/home, and include the following:
▪ 34 CFR §300.149
▪ 34 CFR §§300.151-300.153
▪ 34 CFR §300.199
▪ 34 CFR §§300.506-300.516
▪ 34 CFR §§300.530-300.532
▪ 34 CFR §300.537
▪ 34 CFR §300.600
▪ 34 CFR §§300.611-300.626

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Questions and Answers on IDEA Part B Dispute Resolution Procedures

C.
Due Process Complaints and
Due Process Hearing Procedures
Authority:

The requirements for due process complaints and due process hearings are
found in the regulations at 34 CFR §§300.507-300.516.

Question C-1:

Why does the IDEA require that a party file a due process complaint in order
to request a due process hearing?

Answer:

The IDEA Amendments of 2004 made significant changes to IDEA’s due
process procedures, and parties no longer have the right to request a due
process hearing directly. Rather, in order to request a due process hearing
under the IDEA, a party (a parent 21 or a public agency 22) or the attorney
representing the party, first must file a due process complaint consistent with
34 CFR §§300.507 and 300.508. When a parent or a parent’s attorney files a
due process complaint, the IDEA provides for a 30-day resolution period,
subject to certain adjustments, prior to the initiation of a due process hearing.
34 CFR §300.510. The purpose of the resolution process 23 is to attempt to
achieve a prompt resolution of the parent’s due process complaint as early as
possible at the local level and to avoid the need for a more costly, adversarial,
and time-consuming due process proceeding. Thus, the IDEA’s due process
procedures emphasize prompt and early resolution of disputes between
parents and public agencies through informal mechanisms at the local level
without resorting to the more formal and costly due process hearing
procedures and potential for civil litigation.

Question C-2:
Answer:

Who may file a due process complaint?
A parent or a public agency may file a due process complaint to request a due
process hearing on any matter relating to the identification, evaluation, or
educational placement of a child with a disability or the provision of FAPE to
the child. 34 CFR §300.507(a).

21

See Footnote 5 in Section A of this Q&A document for the definition of the term “parent” and for information
about the transfer of rights accorded to parents under Part B of the IDEA to a student who has reached the age of
majority under State law.
22
See Footnote 6 in Section A of this Q&A document for the definition of the term “public agency.”
23
For more information on the resolution process, see Section D of this Q&A document.

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Questions and Answers on IDEA Part B Dispute Resolution Procedures
Question C-3:

What happens after a due process complaint is submitted?

Answer:

Under 34 CFR §300.508(a), the party filing the due process complaint, or the
attorney representing the party, must forward a copy of the complaint to the
other party and to the SEA, and that complaint must remain confidential. A
due process complaint must meet the content requirements in
34 CFR §300.508(b) and therefore, must contain: the name of the child; the
address of the residence of the child; the name of the school the child is
attending; in the case of a homeless youth, available contact information for
the child and the name of the school the child is attending; a description of the
nature of the problem, including relevant facts; and a proposed resolution of
the problem to the extent known and available to the party at the time.
The next step in the process is to determine whether the complaint can be
deemed sufficient—i.e., whether the due process complaint contains the
information outlined above. Section 300.508(d)(1) provides that the due
process complaint must be deemed sufficient, unless the receiving party
notifies the other party and the hearing officer in writing, within 15 days of
receiving the complaint, that the receiving party believes the complaint does
not meet the content requirements in 34 CFR §300.508(b). Under
34 CFR §300.508(d)(2), the hearing officer has five days to make a
determination on the sufficiency of the complaint (i.e., whether the due
process complaint meets the applicable content requirements). This
determination is made based on the hearing officer’s review of the complaint
alone. The hearing officer must immediately notify both parties in writing of
the determination of whether the due process complaint meets the content
requirements in 34 CFR §300.508(b). If the hearing officer determines that
the due process complaint notice is not sufficient, the hearing officer’s
decision must identify how the notice is insufficient so that the filing party can
amend the due process complaint, if appropriate. 71 FR 46698 (August 14,
2006).
In addition, with the one exception described below, the party receiving a due
process complaint must send the other party a response, which specifically
addresses the issues raised in the due process complaint, within 10 days of
receiving notice of the complaint from the other party. The one exception is if
the LEA receiving the due process complaint has not sent the parent a prior
written notice consistent with 34 CFR §300.503, concerning the subject matter
of the parent’s due process complaint. If the LEA has not done so before the
parent’s due process complaint has been filed, the LEA must send the parent a
prior written notice, consistent with 34 CFR §300.503, which explains, among
other matters, why the LEA proposed or refused to take the action raised in
the due process complaint.
Prior to the initiation of a due process hearing, within 15 days of receiving
notice of the parent’s due process complaint, the LEA must convene a
resolution meeting with the parent and the relevant member or members of the

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Questions and Answers on IDEA Part B Dispute Resolution Procedures
IEP Team to discuss the issues in the parent’s due process complaint, unless
the parent and the LEA agree in writing to waive the meeting or the parties
agree to use mediation under 34 CFR §300.506. 24 If the LEA has not resolved
the due process complaint to the satisfaction of the parent within 30 days of
the receipt of the due process complaint, the due process hearing may occur.
34 CFR §300.510(b)(1).
Question C-4:

What happens if a hearing officer determines that a due process complaint is
insufficient?

Answer:

As explained in the Analysis of Comments and Changes to the final Part B
regulations:
If the hearing officer determines the notice [due process complaint]
is not sufficient, the hearing officer’s decision will identify how
the notice is insufficient, so that the filing party can amend the
notice, if appropriate. 71 FR 46698 (August 14, 2006).
A party may amend its due process complaint only if the other party consents
in writing to the amendment and is given the opportunity to resolve the due
process complaint through a meeting held pursuant to 34 CFR §300.510
(opportunity for a resolution meeting or, the parent and the LEA agree in
writing to waive the meeting, or if the parties agree to use the mediation
process in §300.506); or the hearing officer grants permission to amend the
complaint at any time not later than five days before the due process hearing
begins. 34 CFR §300.508(d)(3)(ii). If a party files an amended due process
complaint, the timelines for the resolution meeting and resolution period begin
again with the filing of the amended due process complaint.
34 CFR §300.508(d)(4). If the hearing officer determines that the complaint
is insufficient and the complaint is not amended, the complaint may be
dismissed. 71 FR 46698 (August 14, 2006).
In general, a party may refile a due process complaint if the complaint remains
within the applicable timeline for filing, whether the IDEA timeline or the
State-established timeline, under 34 CFR §§300.507(a)(2) and 300.511(f).

Question C-5:

What is the timeline for filing a due process complaint?

Answer:

The due process complaint must allege a violation that occurred not more than
two years before the date the parent or public agency knew or should have
known about the alleged action that forms the basis of the due process

24

For more information on mediation, see Section A of this Q&A document.

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Questions and Answers on IDEA Part B Dispute Resolution Procedures

complaint, or, if the State has an explicit time limitation for filing a due
process complaint under 34 CFR part 300, in the time allowed by that State
law. 34 CFR §300.507(a)(2). The applicable timelines described above do
not apply to a parent if the parent was prevented from filing a due process
complaint due to: (1) specific misrepresentations by the LEA that it had
resolved the problem forming the basis of the due process complaint; or (2)
the LEA’s withholding of information from the parent it was required under
part 300 to provide to the parent. 34 CFR §300.511(f). There is nothing in
the IDEA or the Part B regulations that would preclude a State from having a
time limit for filing a due process complaint that is shorter or longer than two
years. 71 FR 46697 (August 14, 2006). The time limitation for filing a due
process complaint used by the State, whether the IDEA timeline or the Stateestablished timeline, must be included in the notice of procedural safeguards
that must be given to parents one time a year and upon receipt of the first due
process complaint under 34 CFR §300.507 in a school year.
34 CFR §§300.504(a)(2) and 300.504(c)(5)(i).
Question C-6:

May States establish procedures permitting a due process complaint to be filed
electronically?

Answer:

Yes. Under 34 CFR §300.508(a)(1), the public agency must have procedures
that require the party or the attorney representing the party to provide to the
other party a due process complaint (which must remain confidential). The
party filing the due process complaint must forward a copy of the complaint to
the SEA, and the complaint must include specific content as described in
Question C-3. 34 CFR §300.508(a)(2) and (b). So long as these requirements
are met, there is nothing in the Part B regulations that would prohibit a State
from accepting due process complaints that are filed electronically. Because
the IDEA does not prohibit this practice, States considering accepting, or
choosing to accept, electronic filings of due process complaints would need to
ensure that there are appropriate safeguards to protect the integrity of the
process. Compare, 71 FR 46629 (August 14, 2006) (regarding whether States
can accept electronic parental consent).
In developing the appropriate safeguards, States also should consider that the
Department has addressed criteria for accepting electronic signatures to satisfy
the signed, written consent requirements in the FERPA regulations in
34 CFR part 99. Under 34 CFR §99.30(d), “signed and dated written consent”
may include a record and signature in electronic form that identifies and
authenticates a particular person as the source of the consent and indicates
such person’s approval of the information contained in the electronic consent.
Applying these criteria to electronic due process complaint submissions, it
would be reasonable for States that either are considering accepting, or have
chosen to accept, electronic filings of due process complaints to ensure that
their process includes safeguards sufficient to identify or authenticate the

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Questions and Answers on IDEA Part B Dispute Resolution Procedures
party filing the complaint and indicate that the party approves of the
information in the due process complaint. In other words, these safeguards
should be sufficient to ensure that a party filing a due process complaint
electronically understands that the complaint has the same effect as if it were
filed in writing. States would also need to ensure that the same confidentiality
requirements that apply to written due process complaints apply to due
process complaints filed electronically. 34 CFR §§300.611-300.626. States
that are considering or have chosen to accept due process complaints filed
electronically should also consult any relevant State laws governing electronic
transactions.
Question C-7:

Must States have procedures for tracking when due process complaints are
received, including due process complaints filed electronically if a State
accepts due process complaints filed electronically?

Answer:

Yes. States must have procedures, which may be determined by State law, to
determine when due process complaints are received, whether filed in hard
copy or electronically, including mechanisms to ensure the timely resolution
of due process complaints in accordance with 34 CFR §300.510 and for the
timely resolution of due process hearings in accordance with
34 CFR §300.515. While a State has some discretion in establishing
procedures for determining when a due process complaint notice is considered
received, the State remains responsible for ensuring that its procedures allow
for the timely resolution of due process complaints and due process hearings
and are uniformly applied, consistent with 34 CFR §§300.510 and 300.515.
For example, if a due process complaint notice is filed electronically on a day
that is not considered a business day (e.g., the weekend), the State could
consider the due process complaint notice received on the date the due process
complaint notice is filed or on the next business day.
Under 34 CFR §300.504(c)(5), the State must include an explanation of the
State’s due process complaint procedures in the notice of procedural
safeguards, which must be given to parents one time a year and upon receipt
of the first due process complaint under 34 CFR §300.507 in a school year.
Because these procedures must include filing and decisional deadlines, these
procedures would need to address the criteria that the State uses for
determining when the State considers a due process complaint notice to be
received, including due process complaint notices filed electronically, if the
State permits due process complaints to be filed electronically.

Question C-8:

Are there any mechanisms that an SEA must provide to assist parents and
public agencies in filing a due process complaint?

Answer:

Under 34 CFR §300.509, each SEA must develop model forms to assist
parents and public agencies in filing a due process complaint; however, the

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Questions and Answers on IDEA Part B Dispute Resolution Procedures
SEA or LEA may not require the use of the model forms. Parents and public
agencies may use the appropriate model form, or another form or document,
so long as the form or document that is used meets the content requirements in
34 CFR §300.508(b) for filing a due process complaint. If the SEA’s model
form includes content not required by 34 CFR §300.508(b), the form must
identify that content and specify that it is optional.
Question C-9:

May a parent file a due process complaint because his or her child’s teacher is
not highly qualified?

Answer:

No. The regulations in 34 CFR §300.18(f) state that there is no right of action
on behalf of an individual student or class of students for the failure of a
particular SEA or LEA employee to be highly qualified. See also
34 CFR §300.156(e). However, a parent may file a State complaint with the
SEA or use the mediation process under 34 CFR §300.506 to resolve issues
regarding staff qualifications. See also Question C-1 in Questions and
Answers on Highly Qualified Teachers Serving Children with Disabilities,
dated January 2007 and Question A-6 of this Q&A document.

Question C-10:

Under what circumstances does the IDEA permit parents of parentally-placed
private school children with disabilities to use IDEA’s due process
procedures?

Answer:

The Department provided the following explanation in Question L-1 in
Questions and Answers on Serving Children with Disabilities Placed by Their
Parents in Private Schools, April 2011:
As provided in 34 CFR §300.140(b), a parent of a child enrolled by
that parent in a private school has the right to file a due process
complaint regarding the child find requirements in
34 CFR §300.131, including the requirements in
34 CFR §§300.300 through 300.311. The due process provisions
in section 615 of the Act and 34 CFR §§300.504 through 300.519
of the regulations do not apply to issues regarding the provision of
services to any particular parentally-placed private school child
with disabilities whom an LEA has agreed to serve because there is
no individual right to services for such children under the IDEA.
34 CFR §300.140(a).
However, as described in Question A-7 of this Q&A document, disputes that
arise about equitable services are subject to the State complaint procedures in
34 CFR §§300.151-300.153. 25 34 CFR §300.140(c)(1). A parent wishing to

25

For more information on State complaint procedures, see Section B of this Q&A document.

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Questions and Answers on IDEA Part B Dispute Resolution Procedures
file a complaint alleging that an SEA or LEA has violated the requirements in
34 CFR §§300.132-300.135 and §§300.137-300.144 may file a State
complaint with the SEA in accordance with the State complaint procedures in
34 CFR §§300.151-300.153.
In addition, under 34 CFR §300.148 and Supreme Court case law, where
FAPE is at issue, parents of a parentally-placed private school child with a
disability may utilize the due process procedures, including mediation, if
seeking reimbursement for the private school placement based on a denial of
FAPE.
Question C-11:

Under what circumstances may a public agency use IDEA’s due process
procedures to override a parent’s refusal to consent?

Answer:

A public agency may use the due process procedures to override a parent’s
refusal to consent or failure to respond to a request to provide consent only for
initial evaluations and reevaluations of children enrolled, or seeking to be
enrolled, in public schools. If a parent of a child enrolled in public school, or
seeking to be enrolled in public school, does not provide consent for an initial
evaluation, or the parent fails to respond to a request to provide consent, the
public agency may, but is not required to, pursue the initial evaluation of the
child by utilizing the due process procedures in 34 CFR §§300.507-300.516, if
appropriate, except to the extent inconsistent with State law relating to such
parental consent. 34 CFR §300.300(a)(3)(i). Also, a public agency may, but
is not required to, use the due process procedures to seek to override a
parent’s refusal to provide consent to a reevaluation, if the parent has enrolled
his or her child or is seeking to enroll the child in a public school.
34 CFR §300.300(c)(1)(ii).
However, if a parent of a child who is home schooled or parentally-placed in a
private school by the parent at the parent’s expense does not provide consent
(or fails to respond to a request to provide consent) for the initial evaluation or
reevaluation of his or her child, the public agency may not use the due process
procedures under 34 CFR §§300.507-300.516 in order to obtain agreement or
a ruling that the evaluation or reevaluation may be provided to the child.
34 CFR §300.300(d)(4).
In addition, if a parent fails to respond to a request for, or refuses to consent
to, the initial provision of special education and related services to his or her
child, the public agency may not use the due process procedures under
34 CFR §§300.507-300.516 in order to obtain agreement or a ruling that the
services may be provided to the child. 34 CFR §300.300(b)(3). Further, if at
any time subsequent to the initial provision of special education and related
services, a parent revokes consent in writing for the continued provision of
special education and related services to his or her child, the public agency
may not use the due process procedures under 34 CFR §§300.507-300.516 in

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Questions and Answers on IDEA Part B Dispute Resolution Procedures
order to obtain agreement or a ruling that the services may be provided to the
child. 34 CFR §300.300(b)(4).
Question C-12:

If a parent wishes to obtain an independent educational evaluation (IEE) at
public expense pursuant to 34 CFR §300.502(b)(1), and the public agency
believes that its evaluation is appropriate, must the public agency file a due
process complaint to request a due process hearing?

Answer:

Yes. Under 34 CFR §300.502(b)(2), if a parent requests an IEE at public
expense, the public agency must, without unnecessary delay, either file a due
process complaint to request a hearing to show that its evaluation is
appropriate or ensure that an IEE is provided at public expense, unless the
agency demonstrates in a hearing pursuant to 34 CFR §§300.507-300.513 that
the evaluation obtained by the parent did not meet agency criteria. If the
public agency files a due process complaint to request a hearing and the final
decision is that the agency’s evaluation is appropriate, the parent still has the
right to an IEE, but not at public expense. Once a final decision is rendered, a
parent aggrieved by that decision would have the right to appeal that decision
to the SEA pursuant to 34 CFR §300.514, if applicable, or to bring a civil
action in an appropriate State or Federal court pursuant to 34 CFR §300.516.

Question C-13:

If both parents have legal authority to make educational decisions for their
child and one parent revokes consent for the provision of special education
and related services pursuant to 34 CFR §300.9(c), may the other parent file a
due process complaint to override the revocation of consent?

Answer:

No. As long as the parent has legal authority pursuant to applicable State law
or a court order to make educational decisions for the child, the public agency
must accept either parent’s revocation of consent under
34 CFR §300.300(b)(4). A parent who disagrees with the other parent’s
revocation of consent does not have the right to use the due process
procedures to override the other parent’s revocation of consent for their
child’s continued receipt of special education and related services. The IDEA
does not address this issue as State law governs the resolution of
disagreements between parents. However, the public agency may, based on
State or local law, provide or refer parents to alternative dispute resolution
systems to attempt to resolve their disagreements.

Question C-14:
Answer:

Does the IDEA address where due process hearings and reviews are held?
The Part B regulations require that each hearing and each review involving
oral arguments must be conducted at a time and place that is reasonably
convenient to the parents and child involved. 34 CFR §300.515(d). OSEP
believes that it is important for public agencies to be flexible in scheduling
due process hearings to enable parents to participate. While a public agency

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Questions and Answers on IDEA Part B Dispute Resolution Procedures
must make a good faith effort to accommodate the parent’s scheduling
request, consistent with 34 CFR §300.515(d), public agencies are not
precluded from also considering their own scheduling needs when
accommodating the parent’s request and in setting a time and place for
conducting the due process hearing and/or review.
Question C-15:

What requirements apply to the qualifications and impartiality of hearing
officers?

Answer:

The Part B regulations are designed to ensure the independence of hearing
officers, while maintaining minimum qualifications. Under
34 CFR §300.511(c), a hearing officer must not be: (1) an employee of the
SEA or the LEA that is involved in the education or care of the child; or (2) a
person having a personal or professional interest that conflicts with the
person’s objectivity in the hearing. This provision addresses independence.
Under 34 CFR §300.511(c)(1)(ii)-(iv), a hearing officer also must: (1)
possess knowledge of, and the ability to understand, the provisions of the
IDEA, Federal and State regulations pertaining to the IDEA, and legal
interpretations of the IDEA by Federal and State courts; (2) possess the
knowledge and ability to conduct hearings in accordance with appropriate,
standard legal practice; and (3) possess the knowledge and ability to render
and write decisions in accordance with appropriate, standard legal practice.
This provision addresses minimum qualifications for impartial hearing
officers.
Also, 34 CFR §300.511(c)(2) provides that a person who otherwise qualifies
to conduct a hearing under 34 CFR §300.511(c)(1) is not an employee of the
agency solely because he or she is paid by the agency to serve as a hearing
officer. This provision clarifies that hearing officers may be reimbursed for
serving as hearing officers without compromising their impartiality. 71 FR
46705 (August 14, 2006).

Question C-16:

Does the SEA have the authority to determine whether a due process
complaint constitutes a new issue compared to a previously adjudicated due
process complaint between the same parties?

Answer:

No. The Analysis of Comments and Changes accompanying the 1999 final
Part B regulations reflects the Department’s long-standing position that this
matter is an issue for the hearing officer to decide and is not a decision that
can be made by the public agency, including an LEA or an SEA. Therefore, a
public agency does not have the authority to deny a parent’s due process
complaint requesting a due process hearing on the basis that it believes the
parent’s issues are not new. Rather, IDEA leaves these determinations to a
hearing officer. 64 FR 12613 (March 12, 1999).

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Questions and Answers on IDEA Part B Dispute Resolution Procedures

Question C-17:

May State law authorize the SEA to unilaterally dismiss or otherwise limit the
issues that can be the subject of a party’s due process complaint?

Answer:

No. Under the IDEA, hearing officers have complete authority to determine
the sufficiency of all due process complaints filed and to determine
jurisdiction of issues raised in due process complaints consistent with
34 CFR §§300.508(d) and 300.513.

Question C-18:

Do hearing officers have jurisdiction over issues raised by either party during
the prehearing or hearing which were not raised in the due process complaint?

Answer:

Pursuant to 34 CFR §300.511(d), the party requesting the due process hearing
may not raise issues at the due process hearing that were not raised in the due
process complaint filed under 34 CFR §300.508(b), unless the other party
agrees. The IDEA does not address whether the non-complaining party may
raise other issues at the hearing that were not raised in the due process
complaint. Therefore, the decision as to whether such matters can be raised at
the hearing should be left to the discretion of the hearing officer in light of the
particular facts and circumstances of the case. 71 FR 46706 (August 14,
2006).

Question C-19:

Do hearing officers have the authority to raise and address issues of
noncompliance that were not raised by the parties?

Answer:

The IDEA does not address whether hearing officers may raise and resolve
issues of noncompliance if the party requesting the hearing does not raise the
issues. Such decisions are best left to States and are generally addressed in
their procedures for conducting due process hearings. 71 FR 46706 (August
14, 2006).

Question C-20:

Under what circumstances may a State prohibit hearing officers from
reviewing the appropriateness, and ordering the implementation of, settlement
agreements reached under the IDEA?

Answer:

The IDEA provides that agreements reached through the mediation or
resolution processes may be enforced in an appropriate State or Federal court,
or by the SEA if applicable. 34 CFR §§300.506(b)(7), 300.510(d)(2), and
300.537. Neither the IDEA nor the Part B regulations specifically address the
authority of hearing officers to review or approve these settlement
agreements. Also, the IDEA does not specifically address enforcement by
hearing officers of settlement agreements reached by the parties outside of the
IDEA’s mediation and resolution processes. Therefore, in the absence of
controlling case law, a State may have uniform rules relating to a hearing
officer’s authority or lack of authority to review and/or enforce settlement

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Questions and Answers on IDEA Part B Dispute Resolution Procedures
agreements reached outside of the IDEA’s mediation and/or resolution
processes. However, such rules must have general application and may not be
limited to proceedings involving children with disabilities and their parents.
Question C-21:

Once the 30-day resolution period or adjusted resolution period expires, what
is the timeline for issuing a final hearing decision?

Answer:

The public agency conducting the due process hearing (either the SEA or the
public agency directly responsible for the education of the child) must ensure
that not later than 45 days after the expiration of the 30-day resolution period
described in 34 CFR §300.510(b) or the adjustments to the time period
permitted in 34 CFR §300.510(c), a final decision is reached in the due
process hearing and a copy of the decision is mailed to each of the parties.
The SEA is responsible for monitoring compliance with this timeline, subject
to any allowable extensions described in Question C-22. 34 CFR §§300.149
and 300.600.

Question C-22:

When would it be permissible for a hearing officer to extend the 45-day
timeline for issuing a final decision in a due process hearing on a due process
complaint or for a reviewing officer to extend the 30-day timeline for issuing
a final decision in an appeal to the SEA, if applicable?

Answer:

The timelines for due process hearings and reviews described in
34 CFR §300.515(a) and (b) may only be extended if a hearing officer or
reviewing officer exercises the authority to grant a specific extension of time
at the request of a party to the hearing or review. 34 CFR §300.515(c).
A hearing officer may not unilaterally extend the 45-day due process hearing
timeline. Also, a hearing officer may not extend the hearing decision timeline
for an unspecified time period, even if a party to the hearing requests an
extension but does not specify a time period for the extension. Likewise, a
reviewing officer may not unilaterally extend the 30-day timeline for
reviewing the hearing decision. In addition, a reviewing officer may not
extend the review decision timeline for an unspecified time period, even if a
party to the review requests an extension but does not specify a time period
for the extension.

Question C-23:
Answer:

Page 44

If an SEA contracts with another agency to conduct due process hearings on
its behalf, can those decisions be appealed to the SEA?
No. In a one-tier system, the SEA conducts due process hearings. In a twotier system, the public agency directly responsible for the education of the
child conducts due process hearings. The determination of which entity
conducts due process hearings is based on State statute, State regulation, or a
written policy of the SEA. 34 CFR §300.511(b). In a one-tier system, a party

Questions and Answers on IDEA Part B Dispute Resolution Procedures
aggrieved by the SEA’s findings and decision has the right to appeal by
bringing a civil action in any State court of competent jurisdiction or in a
district court of the United States without regard to the amount in controversy.
34 CFR §300.516(a). In a one-tier system, an aggrieved party has no right of
appeal to the SEA. However, in a two-tier system, an aggrieved party has the
right to appeal the public agency’s decision to the SEA which must conduct
an impartial review of the findings and decision appealed. 34 CFR
§300.514(b). A party dissatisfied with the decision of the SEA’s reviewing
official has the right to bring a civil action in any State court of competent
jurisdiction or in a district court of the United States without regard to the
amount in controversy. 34 CFR §§300.514(d) and 300.516(a). There is
nothing in the IDEA that would prohibit a State with a one-tier due process
system from carrying out its responsibility by retaining impartial hearing
officers under contract to conduct the hearings or contracting with another
agency that is not a public agency under the IDEA to conduct the hearings.
Because the SEA is the entity responsible for conducting the hearing, there is
no right of appeal to the SEA.
Question C-24:

Does a parent have the right to receive a hearing record at no cost, even
though the applicable time period to appeal the hearing decision has expired?

Answer:

Yes. The IDEA provides specific rights to a party to a due process hearing
conducted pursuant to 34 CFR §§300.507-300.513, or a party appealing the
due process hearing decision to the SEA pursuant to 34 CFR §300.514(b), if
applicable, or a party to an expedited due process hearing conducted pursuant
to 34 CFR §300.532. A party to these proceedings has the right to obtain a
written, or, at the option of the parents, an electronic, verbatim record of the
hearing. A party to these proceedings also has the right to obtain a written, or,
at the option of the parents, electronic findings of fact and decisions.
34 CFR §300.512(a)(4) and (5). Parents must be given the right to have the
record of the hearing and the findings of fact and decisions provided at no
cost. 34 CFR §300.512(c)(3).
The IDEA and the Part B regulations do not establish a time period within
which a parent must request a record of the hearing or the findings of fact and
decisions; nor do they otherwise limit the time period of a parent’s right to
receive the hearing record and findings of fact and decisions at no cost. We
also note that in very limited circumstances, judicial principles of fairness may
allow a reviewing officer or court to waive the timeline for a specific appeal.
Moreover, the information contained in a hearing record or in the findings of
fact and decisions could be used for purposes other than appealing a due
process hearing decision. There could be situations where a parent would
need the information contained in the hearing record or decision for an IEP
Team meeting or for mediation or in a subsequent State complaint or due
process complaint.

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Questions and Answers on IDEA Part B Dispute Resolution Procedures
In addition, States and their public agencies are required to retain records to
show compliance with programmatic requirements for a three-year period. If
any litigation involving the records has been started before the expiration of
the three-year period, the records must be retained until completion of the
action and resolution of all issues which arise from it, or until the end of the
regular three-year period, whichever is later. 34 CFR §§76.731 and 80.42(b).
Question C-25:

Are “motions for reconsideration” permitted after a hearing officer has issued
findings of fact and a decision in a due process hearing?

Answer:

As explained in Question C-23, in a one-tier system where the due process
hearing is conducted by the SEA, or its agent, a party does not have the right
to appeal a decision to the SEA or make a motion for reconsideration. Under
34 CFR §300.514(a), a decision made in a due process hearing conducted by
the SEA is final, except that a party aggrieved by that decision may appeal the
decision by bringing a civil action in any State court of competent jurisdiction
or in a district court of the United States under 34 CFR §300.516.
Once a final decision has been issued, no motion for reconsideration is
permissible. However, a State can allow motions for reconsideration prior to
issuing a final decision, but the final decision must be issued within the 45day timeline or a properly extended timeline. For example, motions for
reconsideration of interim orders made during the hearing would be
permissible as long as the final decision is issued within the 45-day timeline
or a properly extended timeline. Proper notice should be given to parents if
State procedures allow for amendments and a reconsideration process may not
delay or deny parents’ right to a decision within the time periods specified for
hearings and appeals. 64 FR 12614 (March 12, 1999).
There may be situations in which the final due process hearing decision
contains technical or typographical errors. It is permissible for a party to
request correction of such errors when the correction does not change the
outcome of the hearing or substance of the final hearing decision. This type
of request does not constitute a request for reconsideration as discussed within
this response.

Question C-26:

What is the SEA’s responsibility after a due process hearing decision is
issued?

Answer:

Hearing decisions must be implemented within the timeframe prescribed by
the hearing officer, or if there is no timeframe prescribed by the hearing
officer, within a reasonable timeframe set by the State as required by
34 CFR §§300.511-300.514. The SEA, pursuant to its general supervisory
responsibility under 34 CFR §§300.149 and 300.600, must ensure that the
public agency involved in the due process hearing implements the hearing

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Questions and Answers on IDEA Part B Dispute Resolution Procedures
officer’s decision in a timely manner, unless either party appeals the decision.
If necessary to achieve compliance from the LEA, the SEA may use
appropriate enforcement actions consistent with its general supervisory
responsibility under 34 CFR §§300.600 and 300.608.
Question C-27:

Which public agency is responsible for transmitting the findings and decisions
in a hearing to the State advisory panel (SAP) and making those findings and
decisions available to the public?

Answer:

The entity that is responsible for conducting the hearing transmits the findings
and decisions to the SAP and makes them available to the public. In a twotier system where the hearing is conducted by the public agency directly
responsible for the education of the child (i.e., the LEA), that public agency,
after deleting any personally identifiable information, must transmit the
findings and decisions in the hearing to the SAP and make those findings and
decisions available to the public. In a one-tier system where the hearing is
conducted by the SEA, the SEA must first delete any personally identifiable
information and then transmit the findings and decisions in the hearing to the
SAP and make those findings and decisions available to the public.
34 CFR §300.513(d). If a State has a two-tier due process system and the
decision is appealed, the SEA, after deleting any personally identifiable
information, must transmit the findings and decisions in the review to the SAP
and make those findings and decisions available to the public.
34 CFR §300.514(c). In carrying out these responsibilities, SEAs and LEAs
must comply with the confidentiality of information provisions in
34 CFR §§300.611-300.626. 34 CFR §300.610.
OSEP has advised that in a one-tier due process system, the SEA may meet
these requirements by means such as posting the redacted decisions on its
Web site or another Web site location dedicated for this purpose and directing
SAP members or members of the public to that information.

Key regulatory references related to due process complaints and due process hearings, as cited
above, can be found at http://idea.ed.gov/explore/home, and include the following:
▪ 34 CFR §300.140
▪ 34 CFR §300.149
▪ 34 CFR §300.167
▪ 34 CFR §§300.507-300.516
▪ 34 CFR §300.520
▪ 34 CFR §300.600
▪ 34 CFR §§300.611-300.626

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Questions and Answers on IDEA Part B Dispute Resolution Procedures
The Q&A documents cited in this section can be found at:
▪
▪

Questions and Answers on Highly Qualified Teachers Serving Children with Disabilities,
January 2007:
http://idea.ed.gov/explore/view/p/%2Croot%2Cdynamic%2CQaCorner%2C2%2C
Questions and Answers on Serving Children with Disabilities Placed by Their Parents in
Private Schools, April 2011:
http://idea.ed.gov/explore/view/p/%2Croot%2Cdynamic%2CQaCorner%2C1%2C

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Questions and Answers on IDEA Part B Dispute Resolution Procedures

D.

Resolution Process

Authority:

The requirements for the resolution process are found in the regulations at
34 CFR §300.510.

Question D-1:
Answer:

What is the purpose of the resolution meeting?
The purpose of the resolution meeting is to achieve a prompt and early
resolution of a parent’s 26 due process complaint to avoid the need for a more
costly, adversarial, and time-consuming due process hearing and the potential
for civil litigation. Section 300.510(a)(1) of the Part B regulations, consistent
with section 615(f)(1)(B)(i) of the IDEA, provides that within 15 days of
receiving notice of the parent’s due process complaint, and prior to the
initiation of an impartial due process hearing under 34 CFR §300.511, the
LEA must convene a meeting with the parent and the relevant members of the
IEP Team who have specific knowledge of the facts identified in the due
process complaint. 27 The two exceptions to this requirement are described in
Question D-6. In the Analysis of Comments and Changes accompanying the
August, 2006 final Part B regulations, the Department described the purpose
of a resolution meeting as follows:
The purpose of the [resolution] meeting is for the parent to discuss
the due process complaint and the facts that form the basis of the
due process complaint so that the LEA has an opportunity to
resolve the dispute. 71 FR 46700 (August 14, 2006).
If the LEA has not resolved the due process complaint to the satisfaction of
the parent within 30 days of the receipt of the due process complaint, the due
process hearing may occur. 34 CFR §300.510(b)(1).

26

See Footnote 5 in Section A of this Q&A document for the definition of the term “parent” and for information
about the transfer of rights accorded to parents under Part B of the IDEA to a student who has reached the age of
majority under State law.
27
For expedited due process complaints, the resolution meeting must occur within seven days of receiving notice of
the parent’s due process complaint. 34 CFR §300.532(c)(3). The resolution process requirements for expedited
due process complaints are described in more detail in Section E of this Q&A document.

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Questions and Answers on IDEA Part B Dispute Resolution Procedures

Question D-2:

Why is a resolution meeting not required when an LEA files a due process
complaint?

Answer:

The IDEA requires an LEA to convene a resolution meeting only if the parent
is the complaining party. 28 Section 615(f)(1)(B)(i) of the IDEA is clear that
the LEA’s obligation to convene a resolution meeting prior to the initiation of
a due process hearing is triggered within 15 days of receiving notice of a
parent’s due process complaint, and the implementing regulation in
34 CFR §300.510(a) reflects this statutory provision. As explained in Note
212 of Conf. Rpt. (Conference Report) No. 108-779, p. 217 (2004), “[b]oth
the House Bill and Senate amendment require the LEA and parent of a child
with a disability to meet within 15 days of a parent’s complaint being filed to
attempt to resolve the complaint.” Thus, as also explained in the Analysis of
Comments and Changes accompanying the Part B regulations, “[t]here is no
provision requiring a resolution meeting when an LEA is the complaining
party. The Department’s experience has shown that LEAs rarely initiate due
process proceedings.” 71 FR 46700 (August 14, 2006). Therefore, we expect
that LEAs will attempt to resolve disputes with parents prior to filing a due
process complaint. This includes communicating with a parent about the
disagreement and convening an IEP Team meeting, as appropriate, to discuss
the matter and attempt to reach a solution. The LEA and parent may also
choose to voluntarily engage in the mediation process described in
34 CFR §300.506 or another appropriate alternative dispute resolution
mechanism available in the State to resolve the issue.
Because there is no requirement to convene a resolution meeting when an
LEA files a due process complaint, the 45-day timeline for issuing a final
decision in a due process hearing begins the day after the LEA’s due process
complaint is received by the other party and the SEA.

Question D-3:

Does the parent still have the right to challenge the sufficiency of the due
process complaint when an LEA files a due process complaint? Must the
parent respond to the LEA’s due process complaint?

Answer:

A parent’s rights and obligations are not altered even though the resolution
process requirements do not apply when an LEA files a due process
complaint. The parent still retains the right to challenge the sufficiency of the
due process complaint within 15 days of receipt of the complaint, consistent
with 34 CFR §300.508(d). It should be noted that one way for an LEA to
amend a due process complaint that is not sufficient is for the parent to agree

28

It should be noted, however, that one way for an LEA to amend a due process complaint that is not sufficient, is
for the parent to agree in writing and be given an opportunity to resolve the LEA’s due process complaint through
a resolution meeting. 34 CFR §300.508(d)(3)(i).

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Questions and Answers on IDEA Part B Dispute Resolution Procedures

in writing and be given an opportunity to resolve the LEA’s due process
complaint through a resolution meeting. 34 CFR §300.508(d)(3)(i). Also, the
parent must send a response to the LEA that addresses the issues raised in the
due process complaint within 10 days of receiving the complaint.
34 CFR §300.508(f).
Question D-4:

If a due process complaint is amended and the 15-day timeline to conduct a
resolution meeting starts over, must the LEA conduct another resolution
meeting?

Answer:

Yes. Under 34 CFR §300.508(d)(3), a party may amend its due process
complaint subject to the following conditions. The other party must consent
in writing to the amendment and be given the opportunity to resolve the
complaint through a meeting held pursuant to 34 CFR §300.510.
Alternatively, the hearing officer may grant permission to amend the
complaint at any time not later than five days before the due process hearing
begins. This process is intended to ensure that the parties involved understand
the nature of the complaint before the due process hearing begins. 71 FR
46698 (August 14, 2006).
Under 34 CFR §300.508(d)(4), when a due process complaint is amended, the
timeline for the resolution meeting and the time period for resolving the
complaint begin again with the filing of the amended due process complaint.
71 FR 46698 (August 14, 2006).

Question D-5:

If a parent files a due process complaint with the LEA or public agency but
does not forward a copy of the due process complaint to the SEA, when does
the timeline for convening a resolution meeting begin?

Answer:

The Part B regulations do not address this specific question. In establishing
procedures for administering the due process complaint system, States should
address how a parent’s failure to provide the required copy of the due process
complaint to the LEA or public agency and SEA will affect the resolution
process and due process hearing timelines. However, such procedures must
be consistent with the due process requirements of Part B of the IDEA.
For example, a State could require that the LEA advise the parent in writing
that the timeline for starting the resolution process will not begin until the
parent provides the SEA with a copy of the due process complaint as required
by the regulations. As an additional protection for parents, consistent with
34 CFR §300.199, we encourage States to adopt procedures that ensure the
LEA or public agency provides a copy of the due process complaint to the
SEA and proceeds with the established timelines.

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Questions and Answers on IDEA Part B Dispute Resolution Procedures

Question D-6:

Are there circumstances in which an LEA would not be required to convene a
resolution meeting when it receives notice of a parent’s due process
complaint?

Answer:

Yes. Under 34 CFR §300.510(a)(3), there are two occasions when a
resolution meeting need not occur: (1) when the parent and LEA agree in
writing to waive the meeting; and (2) when the parent and LEA agree to use
the mediation process described in 34 CFR §300.506 to resolve the due
process complaint. There are no provisions in the IDEA that allow a parent or
an LEA to unilaterally waive the resolution meeting, because the resolution
meeting is “a required vehicle for the parent and the LEA to attempt to resolve
their differences prior to initiating a due process hearing.” 71 FR 46702
(August 14, 2006). Likewise, an agreement to use another alternative dispute
resolution mechanism if available in the State, by itself, would not relieve the
LEA of its obligation to convene a resolution meeting.

Question D-7:

Does the timeline for a due process hearing decision always begin after the
30-day resolution period?

Answer:

No. The Part B regulations allow adjustments to the 30-day resolution period.
These adjustments may result in a shorter or longer period to resolve the due
process complaint and affect when the timeline for a due process hearing
decision begins.
If the LEA has not resolved the due process complaint to the satisfaction of
the parent within 30 days of the receipt of the due process complaint, the due
process hearing may occur. 34 CFR §300.510(b)(1). However, under
34 CFR §300.510(c), there are three circumstances which permit the
resolution period to be made shorter than 30 days or longer than 30 days.
Note that the 45-day due process hearing timeline in 34 CFR §300.515(a)
starts the day after one of the following events: (1) both parties agree in
writing to waive the resolution meeting; (2) after either the mediation or
resolution meeting starts but before the end of the 30-day resolution period,
the parties agree in writing that no agreement is possible; or (3) if both parties
agree in writing to continue the mediation at the end of the 30-day resolution
period, but later, the parent or public agency withdraws from the mediation
process.
In addition, as set out in Question D-13, a hearing officer may begin the
timeline for a due process hearing decision after receiving a parent’s request
to begin that timeline, under 34 CFR §300.510(b)(5), based on the LEA’s
failure to hold the resolution meeting within 15 days of receiving notice of a
parent’s due process complaint or failure to participate in the resolution
meeting.

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Questions and Answers on IDEA Part B Dispute Resolution Procedures
Further, except where the parties jointly agree to waive the resolution process
or use mediation, the failure of the parent filing a due process complaint to
participate in the resolution meeting will delay the timelines for the resolution
process and due process hearing until the resolution meeting is held.
34 CFR §300.510(b)(3). As explained in Question D-13, an LEA may request
a hearing officer to dismiss a complaint when the LEA has been unable to
obtain the participation of the parent in a resolution meeting despite making
reasonable efforts to do so. 34 CFR §300.510(b)(4).
Question D-8:

Which individuals participate in the resolution meeting?

Answer:

Under 34 CFR §300.510(a)(4), the parent and the LEA determine the relevant
members of the IEP Team to attend the resolution meeting. The LEA must
convene a resolution meeting with the parent and relevant member(s) of the
IEP Team who have specific knowledge of the facts identified in the parent’s
due process complaint. The resolution meeting must include a representative
of the public agency who has decision-making authority on behalf of that
agency. An attorney of the LEA may not attend the resolution meeting unless
the parent is accompanied by an attorney. 34 CFR §300.510(a)(1). This is
true even if a non-attorney advocate attends the meeting on behalf of the
parent. We encourage LEAs and parents to cooperate in determining who will
attend the resolution meeting, because a resolution meeting is unlikely to
result in any resolution of the dispute if the parties cannot agree on who
should attend. 71 FR 46701 (August 14, 2006).

Question D-9:

May the LEA bring its attorney to a resolution meeting when the parent is
accompanied by a non-attorney or qualified representative or advocate with
the authority under State law to represent the parent at a due process hearing?

Answer:

No. Under 34 CFR §300.510(a)(1)(ii), an LEA’s attorney may not participate
in the resolution meeting unless the parent is accompanied by an attorney.
Therefore, the attendance of an LEA’s attorney is expressly limited to
instances where the parent brings an attorney, not a non-attorney advocate or
other qualified individual, to the resolution meeting. While the IDEA states
that parties to a due process hearing may be accompanied and advised by nonattorneys, the issue of whether non-attorneys may “represent” parties to a due
process hearing is a matter that is left to each State to decide.
34 CFR §300.512(a)(1) and 73 FR 73006, 73017, and 73027 (Dec. 1, 2008).

Question D-10:

Must an LEA include the days when schools are closed due to scheduled
breaks and holidays in calculating the timeline for convening a resolution
meeting?

Answer:

Yes. Even during periods when school is closed, the LEA must hold the
resolution meeting within 15 days of receiving notice of the parent’s due

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Questions and Answers on IDEA Part B Dispute Resolution Procedures
process complaint. 34 CFR §300.510(a). The only exceptions to this
requirement are if the parent and the LEA agree in writing to waive the
resolution meeting, or the parent and the LEA agree to use mediation under
34 CFR §300.506.
Under 34 CFR §300.11(a), “[d]ay means calendar day unless otherwise
indicated as business day or school day.” Therefore, the SEA or LEA may not
suspend the 15-day timeline for convening a resolution meeting while schools
are closed for breaks or holidays. Such a delay would be inconsistent with the
15-day timeline for convening the resolution meeting and the 30-day
resolution period described in 34 CFR §300.510, and also would delay the
initiation of the 45-day timeline for issuing a final decision in a due process
hearing under 34 CFR §300.515(a). 71 FR 46704 (August 14, 2006).
Question D-11:

What is an LEA’s responsibility to convene a resolution meeting when the
parent cannot attend within the 15-day timeline?

Answer:

The LEA must attempt to schedule an in person meeting with the parent
within 15 days of receiving the parent’s due process complaint. If the LEA
notifies the parent of its intent to schedule a resolution meeting within the 15day timeline and the parent informs the LEA in advance of the meeting that
circumstances prevent the parent from attending the meeting in person, it
would be appropriate for an LEA to offer to use alternative means to ensure
parent participation, such as video conferences or conference telephone calls,
subject to the parent’s agreement. 71 FR 46701 (August 14, 2006). Whether
the meeting is conducted in person or by alternative means, the LEA must
include the required participants and be prepared to discuss with the parent the
facts that form the basis of the due process complaint and any possible
resolution of the complaint.

Question D-12:

Must the LEA continue its attempts to convince a parent to participate in a
resolution meeting throughout the 30-day resolution period?

Answer:

Yes. If a parent fails or refuses to participate in a resolution meeting that the
LEA attempts to convene within 15 days of receiving notice of the parent’s
due process complaint, an LEA must continue to make diligent efforts
throughout the remainder of the 30-day resolution period to convince the
parent to participate in a resolution meeting. At the conclusion of the 30-day
resolution period, an LEA may request that a hearing officer dismiss the
complaint when the LEA is unable to obtain the participation of a parent in a
resolution meeting, despite making reasonable efforts to obtain the parent’s
participation and documenting its efforts, using the procedures in
34 CFR §300.322(d). 71 FR 46702 (August 14, 2006).

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Questions and Answers on IDEA Part B Dispute Resolution Procedures
Examples of appropriate efforts LEAs can make to obtain the participation of
the parent in the resolution meeting include detailed records of telephone calls
made or attempted and the results of those calls and copies of correspondence
sent to the parents and any responses received. 34 CFR §300.510(b)(4). In
making such efforts, it also would be appropriate for an LEA to inform the
parent that the LEA may seek the intervention of a hearing officer to dismiss
the parent’s due process complaint if the parent does not participate in the
resolution meeting.
Question D-13:

If a party fails to participate in the resolution meeting, must the other party
seek the hearing officer’s intervention to address the pending due process
hearing on the parent’s due process complaint?

Answer:

Yes. The regulations in 34 CFR §300.510(b)(4) provide that an LEA may
request a hearing officer to dismiss a complaint when the LEA has been
unable to obtain the participation of the parent in a resolution meeting despite
making reasonable efforts to do so and documenting those efforts. Under
34 CFR §300.510(b)(5), if an LEA fails to hold a resolution meeting within
the required timelines or fails to participate in a resolution meeting, the parent
may seek the intervention of a hearing officer to begin the due process hearing
timeline. The appropriate party must seek the hearing officer’s intervention to
either dismiss the complaint or to initiate the hearing timeline, depending on
the circumstances.

Question D-14:

If a party fails to participate in the resolution meeting, and neither party seeks
the hearing officer’s intervention to address the pending due process
complaint, would the timeline for a due process hearing decision still apply?

Answer:

Yes. If there is no adjustment to the 30-day resolution period timeline as
described in Question D-7, and if the LEA or the parent does not seek the
hearing officer’s intervention as described in Question D-13, regardless of the
reasons for the parties’ inaction, the 45-day timeline for a due process hearing
decision would remain in effect. 34 CFR §§300.510(b)(2) and 300.515(a).

Question D-15:

What is the SEA’s responsibility for ensuring that LEAs comply with the
resolution process requirements?

Answer:

As explained in the Analysis of Comments and Changes, the Department fully
expects that only in very rare situations will an LEA fail to meet its obligation
to convene a resolution meeting within 15 days of receiving notice of the
parent’s due process complaint, delay the due process hearing by scheduling
meetings at times or places that are inconvenient for the parent, or otherwise
not participate in good faith in the resolution process. In instances of
noncompliance, parents are able to request a hearing officer to allow the due
process hearing to proceed. 71 FR 46702 (August 14, 2006).

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Questions and Answers on IDEA Part B Dispute Resolution Procedures
In addition, an SEA has an affirmative obligation to ensure its LEAs’
compliance with the resolution process timelines, consistent with its general
supervisory and monitoring responsibilities. 34 CFR §§300.149 and
300.600(d)(2). The SEA must monitor LEAs located in the State for
compliance with the requirements for resolution meetings in
34 CFR §300.510. Accordingly, the State must ensure that its LEAs convene
a resolution meeting within 15 days of receiving notice of the parent’s due
process complaint. If the LEA fails to convene a resolution meeting and the
parties have not agreed to use mediation or agreed in writing to waive the
meeting, the State must ensure the LEA corrects the noncompliance as soon as
possible and in no case more than one year after the State’s identification of
noncompliance, as required in 34 CFR §300.600(e). If necessary to achieve
compliance, the SEA may use appropriate enforcement actions consistent with
its general supervisory responsibility under 34 CFR §§300.600 and 300.608 to
ensure that the LEA complies.
Also, as part of the State’s general supervisory responsibility, the SEA must
ensure that due process hearing decision timelines are properly calculated and
enforced. Therefore, the SEA must establish a mechanism for tracking the
resolution process to determine when the resolution period has concluded and
the 45-day due process hearing timeline in 34 CFR §300.515(a) (or the
expedited due process hearing timeline in 34 CFR §300.532(c)(2)) begins.
The SEA has the flexibility to determine its procedures and the appropriate
mechanism for tracking the resolution process, given the State’s unique
circumstances.
Question D-16:

May an LEA require a parent to sign a confidentiality agreement as a
precondition to conducting a resolution meeting?

Answer:

No. An LEA may not require a confidentiality agreement as a precondition to
conducting a resolution meeting. The only reasons that an LEA would be
excused from the requirement to convene a resolution meeting with the parent
within 15 days of receiving notice of the parent’s due process complaint are
those specified in 34 CFR §300.510(a)(3) and discussed in Question D-6.
Neither of these exceptions addresses confidentiality agreements. Nor is there
any separate requirement, such as that in 34 CFR §300.506(b)(8) for
mediation discussions, requiring parties to resolution meetings to keep the
discussions that occur in those meetings confidential. However, as noted in
the Analysis of Comments and Changes, there is nothing in the IDEA or its
implementing regulations that would prohibit the parties to a resolution
meeting from entering into a confidentiality agreement as part of their
resolution agreement resolving the dispute that gave rise to the parent’s
complaint. 71 FR 46704 (August 14, 2006).

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Questions and Answers on IDEA Part B Dispute Resolution Procedures

Question D-17:

Are there any provisions in the IDEA that require discussions that occur in
resolution meetings to remain confidential?

Answer:

In general, the answer is no. Unlike mediation, IDEA and its implementing
regulations do not prohibit or require discussions that occur during a
resolution meeting to remain confidential. However, the confidentiality
requirements in section 617(c) of the IDEA and the Part B regulations at
34 CFR §§300.611-300.626 and FERPA and its implementing regulations in
34 CFR part 99 apply.

Question D-18:

Do the Part B regulations allow information discussed at a resolution meeting
to be introduced at a due process hearing or civil proceeding?

Answer:

In general, yes. Unlike mediation, the IDEA and its implementing regulations
contain no requirement for discussions in resolution meetings to be kept
confidential and not be introduced in a subsequent due process hearing or civil
proceeding. There is nothing in the IDEA or its implementing regulations that
would prevent the parties from voluntarily agreeing that the resolution
meeting discussions will remain confidential, including prohibiting the
introduction of those discussions at any subsequent due process hearing or
civil proceeding. Absent an enforceable agreement by the parties requiring
that these discussions remain confidential, either party may introduce
information discussed during the resolution meeting at a due process hearing
or civil proceeding when presenting evidence and confronting or crossexamining witnesses consistent with 34 CFR §300.512(a)(2). As noted in
Question D-16, neither an SEA nor an LEA may require the parties to enter
into such an agreement as a precondition to participation in the resolution
meeting. 71 FR 46704 (August 14, 2006).

Question D-19:

Must a settlement agreement be signed and executed at the resolution meeting,
or may a settlement agreement be signed and executed by the parties prior to
the conclusion of the 30-day resolution period?

Answer:

Pursuant to 34 CFR §300.510(d), if a resolution to the dispute is reached at the
resolution meeting, the parties must execute a legally binding agreement.
Either party may void the agreement within three business days of the
agreement’s execution. This regulation contemplates that an agreement may
not be finalized at the resolution meeting and therefore allows for a 30-day
resolution period. At a time subsequent to the resolution meeting, the parties
may have additional discussions and may execute a written settlement
agreement within the 30-day resolution period. Only a legally binding
agreement reached during the 30-day period that meets the requirements of
34 CFR §300.510(d) and (e), is considered an agreement under the resolution
process requirements.

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Questions and Answers on IDEA Part B Dispute Resolution Procedures

Question D-20:

If the parties reach agreement on all issues in the parent’s due process
complaint and execute a written settlement agreement, what happens to the
due process complaint?

Answer:

The Part B regulations do not address the status of the due process complaint
or which party is responsible for requesting that the due process complaint be
dismissed or withdrawn once a resolution agreement is reached and the threebusiness-day review period has passed. Such matters are left to the discretion
of the State and the hearing officer.

Question D-21:

How can written settlement agreements reached through IDEA’s resolution
process be enforced if a party believes the agreement is not being
implemented?
A written settlement agreement reached through IDEA’s resolution process is
enforceable in any State court of competent jurisdiction or in a district court of
the United States. 34 CFR §300.510(d)(2). Even though this regulation
provides for judicial enforcement of resolution agreements, it also provides an
SEA the option of using other mechanisms or procedures that permit parties to
seek enforcement of resolution agreements. However, this can occur only if
use of those mechanisms is not mandatory and does not delay or deny a party
the right to seek enforcement of the written agreement in an appropriate State
or Federal court. 34 CFR §300.537.

Answer:

Question D-22:

If an agreement is not reached during the resolution meeting, must mediation
continue to be available?

Answer:

Yes. Under 34 CFR §300.506, the public agency must ensure that mediation
is available to allow parties to disputes involving any matter under this part,
including matters arising prior to the filing of a due process complaint, to
resolve disputes through the mediation process described in 34 CFR §300.506.
However, mediation must be voluntary on the part of both parties, and may
not be used to deny or delay a parent’s right to a due process hearing on a due
process complaint.

Question D-23:

Does the 30-day resolution period apply if the parties elect to use mediation
under 34 CFR §300.506 rather than convene a resolution meeting?

Answer:

Yes. If the parties choose to use mediation rather than participate in a
resolution meeting, the 30-day resolution period is still applicable. Under
34 CFR §300.510(c), the resolution period applies to the use of mediation
after the filing of a due process complaint requesting a due process hearing.
When the parties engage in mediation, the resolution period may be adjusted

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Questions and Answers on IDEA Part B Dispute Resolution Procedures
in accordance with 34 CFR §300.510(c)(2) and (3). Adjustments to the
resolution period when mediation is used are described in Question D-24.
Question D-24:

What is the impact of mediation on the resolution and due process hearing
timelines?

Answer:

If both parties agree to use the mediation process described in
34 CFR §300.506 instead of the resolution process described in
34 CFR §300.510, the resolution meeting does not need to be held but the 30day resolution period would still apply. 34 CFR §300.510(a)(3)(ii). If the
parties agree in writing to continue the mediation process beyond the end of
the 30-day resolution period that began when the due process complaint was
received, the 45-day due process hearing timeline does not begin until one of
the parties withdraws from the mediation process or the parties agree in
writing that no agreement can be reached through mediation.
34 CFR §300.510(c)(2) and (3).

Question D-25:

If the LEA and parents wish to continue the mediation process at the
conclusion of the 30-day resolution period must the hearing officer agree to
the extension in order for the parties to continue the mediation process?

Answer:

In general, no. The regulations contemplate that the parties may agree in
writing to continue the mediation at the end of the 30-day resolution period
pursuant to 34 CFR §300.510(c)(3). Therefore, such agreements would not
require hearing officer involvement or approval, but notice to the hearing
officer of the agreement would be appropriate.
To the extent that the hearing officer already has established a hearing
schedule that is inconsistent with the extension agreed to by the parties, either
party may request a specific extension of time from the hearing officer.
34 CFR §300.515(c).

Key regulatory references related to the resolution process, as cited above, can be found at
http://idea.ed.gov/explore/home, and include the following:
▪ 34 CFR §300.11
▪ 34 CFR §300.149
▪ 34 CFR §§300.506-300.516
▪ 34 CFR §300.537
▪ 34 CFR §300.600
▪ 34 CFR §§300.611-300.626

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E.

Expedited Due Process Hearings

Authority:

The requirements for expedited due process hearings are found in the
regulations at 34 CFR §§300.532-533.

Question E-1:

What is an expedited due process hearing?

Answer:

An expedited due process hearing is a hearing involving a due process
complaint regarding a disciplinary matter, which is subject to shorter timelines
than a due process hearing conducted pursuant to 34 CFR §§300.507-300.516.
Under 34 CFR §300.532(a), a parent 29 of a child with a disability who
disagrees with any decision regarding placement under 34 CFR §§300.530
and 300.531, or the manifestation determination under 34 CFR §300.530(e),
or an LEA that believes that maintaining the child’s placement is substantially
likely to result in injury to the child or to 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 one of these circumstances the SEA or
LEA is responsible for arranging an expedited due process hearing, which
must occur within 20 school days of the date that the due process complaint
requesting the hearing is filed. The hearing officer must make a determination
within 10 school days after the hearing. 34 CFR §300.532(c)(2). Although
this hearing must be conducted on an expedited basis under these shortened
timelines, it is an impartial due process hearing subject to the requirements of
34 CFR §§300.507, 300.508(a)-(c), and §§300.510-300.514, except as
provided in 34 CFR §300.532(c)(2)-(4), as described in Question E-3.
34 CFR §300.532(c)(1).
The shortened timelines for conducting expedited due process hearings in
disciplinary situations should enable hearing officers to make prompt
decisions about disciplinary matters while ensuring that all of the due process
protections in 34 CFR §§300.510-300.514 are maintained.
Note that when a due process complaint requesting an expedited due process
hearing is filed either by the parent or the LEA, the child must remain in the
alternative educational setting chosen by the IEP Team pending the hearing
officer’s decision or until the time period for the disciplinary action expires,
whichever occurs first, unless the parent and the public agency agree
otherwise. 34 CFR §300.533 and 71 FR 46726 (August 14, 2006).

29

See Footnote 5 in Section A of this Q&A document for the definition of the term “parent” and for information
about the transfer of rights accorded to parents under Part B of the IDEA to a student who has reached the age of
majority under State law.

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Questions and Answers on IDEA Part B Dispute Resolution Procedures

Question E-2:
Answer:

What is the hearing officer’s authority in an expedited due process hearing?
An impartial hearing officer conducting an expedited due process hearing
under 34 CFR §300.511 hears, and makes a determination regarding, the due
process complaint. Under 34 CFR §300.532(b)(2), a hearing officer also has
the authority to determine whether the child’s removal from his or her
placement violated 34 CFR §300.530 (authority of school personnel); whether
a child’s behavior was a manifestation of his or her disability; and whether
maintaining the child’s current placement is substantially likely to result in
injury to the child or to others. In determining what is the appropriate relief, if
any, the hearing officer may return the child to the placement from which he
or she was removed or may order that a child’s placement be changed to an
appropriate interim alternative educational setting for no more than 45 school
days if the hearing officer determines that maintaining the current placement
of the child is substantially likely to result in injury to the child or to others.
34 CFR §300.532(b)(2). These procedures may be repeated if the LEA
believes that returning the child to the original placement is substantially
likely to result in injury to the child or to others. 34 CFR §300.532(b)(3).
A decision in an expedited due process hearing may be appealed consistent
with 34 CFR §§300.514 and 300.516. 34 CFR §300.532(c)(5). In a one-tier
system, where the SEA conducts the expedited due process hearing, a party
aggrieved by the findings and decision has the right to appeal by bringing a
civil action in a State court of competent jurisdiction or in a district court of
the United States without regard to the amount in controversy. 34 CFR
§§300.516(a) and 300.532(c)(5). In a two-tier system, where the public
agency directly responsible for the education of the child conducts the
expedited due process hearing, the findings and decision in the hearing can be
appealed to the SEA. 34 CFR §300.514(b). If a party is dissatisfied with the
SEA’s decision, the party may appeal by bringing a civil action in an
appropriate State or Federal court, pursuant to 34 CFR §300.516. 34 CFR
§300.514(d).

Question E-3:

How is the timeline for conducting an expedited due process hearing
calculated? Does this timeline begin after the resolution period?

Answer:

The following shortened timelines apply when a due process complaint
requesting an expedited due process hearing is filed. The resolution meeting
must occur within seven days of receiving notice of the parent’s due process
complaint (34 CFR §300.532(c)(3)(i)), unless the parents and the 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)). 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, for expedited due process

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Questions and Answers on IDEA Part B Dispute Resolution Procedures

hearings, there is a 15-day resolution period from the date the parent’s due
process complaint requesting an expedited due process hearing is received,
and the time period for resolution is measured in terms of calendar days, not
school days. Under 34 CFR §300.11(a), “[d]ay means calendar day, unless
otherwise indicated as business day or school day.” The Part B regulations
define school day as “any day, including a partial day that children are in
attendance at school for instructional purposes. School day has the same
meaning for all children in school, including children with and without
disabilities.” 34 CFR §300.11(c).
Further, the expedited due process hearing must occur within 20 school days
from the date that the parent’s due process complaint requesting a due process
hearing is filed. Thus, the resolution period is part of, and not separate from,
the expedited due process hearing timeline. If an expedited due process
hearing occurs, the hearing officer must make a determination within 10
school days after the hearing. 34 CFR §300.532(c)(2).
Question E-4:

May the parties mutually agree to extend the resolution period to resolve an
expedited due process complaint?

Answer:

No. There is no provision in the IDEA or the Part B regulations that permits
adjustments to the 15-day resolution period for expedited due process
complaints. 34 CFR §300.532(c). Also, there is no provision in the Part B
regulations permitting the parties to agree to extend this time period.
Therefore, when the parties have participated in a resolution meeting or
engaged in mediation and the dispute has not been resolved to the satisfaction
of both parties within 15 days of the receipt of the due process complaint, the
expedited due process hearing may proceed. 34 CFR §300.532(c)(3)(ii).

Question E-5:

How must SEAs and LEAs apply the timeline requirements for expedited due
process hearings if the due process complaint is filed when school is not in
session?

Answer:

When a due process complaint requesting an expedited due process hearing is
filed during the summer or when school is not otherwise in session, the SEA
or LEA responsible for arranging the expedited due process hearing is not
required to count those days in calculating the expedited due process hearing
timelines. A school day has the same meaning for all children in school,
including children with and without disabilities. 34 CFR §300.11(c)(2).
Therefore, any day that children without disabilities are not in school is not
counted as a school day, and is not considered in calculating the expedited due
process hearing timelines. For example, a day on which a public agency only
provides extended school year services to children with disabilities and does
not operate summer school programs for all children cannot be counted as a
“school day.” 71 FR 46552 (August 14, 2006). In contrast, if a due process

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Questions and Answers on IDEA Part B Dispute Resolution Procedures
complaint requesting a hearing is filed under 34 CFR §§300.507-300.516,
when school is not in session, the SEA is required to meet the 30-day
resolution period and 45-day hearing timelines in 34 CFR §§300.510 and
300.515(a).
Question E-6:

May a party challenge the sufficiency of a due process complaint requesting
an expedited due process hearing?

Answer:

No. The sufficiency provision in 34 CFR §300.508(d), described previously
in Questions C-3 and C-4 of this Q&A document, does not apply to expedited
due process complaints. Because of the shortened timelines that apply to
conducting an expedited due process hearing, it would be impractical to
extend the timeline in order for this provision to apply. 34 CFR §300.532(a)
and 71 FR 46725 (August 14, 2006).

Question E-7:

May a hearing officer extend the timeline for making a determination in an
expedited due process hearing?

Answer:

No. The SEA or LEA is responsible for arranging the expedited due process
hearing, which must occur within 20 school days of the date the due process
complaint requesting the hearing is filed. The hearing officer must make a
determination within 10 school days after the hearing.
34 CFR §300.532(c)(2). There is no provision in the Part B regulations that
would give a hearing officer conducting an expedited due process hearing the
authority to extend the timeline for issuing this determination at the request of
a party to the expedited due process hearing.
A State may establish different procedural rules for expedited due process
hearings than it has established for other due process hearings, but except for
the timelines in 34 CFR §300.532(c)(3), those rules must be consistent with
34 CFR §§300.510 through 300.514.

Question E-8:

How can the parties meet the requirement in 34 CFR §300.512(b) to disclose
evaluations and recommendations to all parties at least five business days
before an expedited due process hearing begins?

Answer:

Because the 15-day resolution period for a due process complaint requesting
an expedited due process hearing concludes well before the 20-school-day
period within which the hearing must occur, the parties should 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. Also, there
is nothing in the IDEA that would prevent the parties from agreeing to
disclose relevant information to all other parties less than five business days
prior to an expedited due process hearing. 71 FR 46706 (August 14, 2006).

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Questions and Answers on IDEA Part B Dispute Resolution Procedures

Question E-9:

May a school district proceed directly to court for a temporary injunction to
remove a student from his or her current educational placement for
disciplinary reasons or must the school district exhaust administrative
remedies by first filing a due process complaint to request an expedited due
process hearing?

Answer:

While this situation is not addressed specifically by the Part B regulations, the
Department’s position, in the context of discipline, is that a school district
may seek judicial relief through measures such as a temporary restraining
order when necessary and legally appropriate. In addition, there is extensive
case law addressing exigent circumstances where exhaustion of administrative
remedies is not required or where the failure to exhaust administrative
remedies may be excused. In general, a school district that goes directly to
court seeking to remove a child with a disability would need to show that the
proposed removal is appropriate (e.g., that other interventions will not reduce
the immediate risk of injury) and that exhaustion of the expedited due process
hearing process should not be required (e.g., due to the exigency of the
situation). If appropriate, prior to seeking a court order, the LEA should
attempt other interventions which could include, but are not limited to, the use
of positive behavioral interventions and supports and other strategies to
address the behavior giving rise to the proposed removal. See
34 CFR §§300.324(a)(2)(i) and 300.530(e)-(f).

Key regulatory references related to expedited due process hearings, as cited above, can be found
at http://idea.ed.gov/explore/home, and include the following:
▪ 34 CFR §300.11
▪ 34 CFR §§300.506-300.516
▪ 34 CFR §§300.530-300.533

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