Code of Maine Rules › 05 - DEPARTMENT OF EDUCATION › 071 - EDUCATION - GENERAL › Chapter 101 - MAINE UNIFIED SPECIAL EDUCATION REGULATION BIRTH TO AGE TWENTY-TWO › Appendix 071-101-1 - Notice of Procedural Safeguards

Current through 2024-29, July 17, 2024
In the Individuals with Disabilities Improvement Act
				  of 2004 (the reauthorization of the IDEA, 2004), the Congress required the U.S.
				  Department of Education to publish and widely disseminate 'model forms', that
				  are "consistent with the requirements of [Part B of the IDEA]" and "sufficient
				  to meet the requirements." This notice of procedural safeguards has been
				  provided to the states.
NOTE: Italicized text signifies
				  State requirements.
Non-italicized Time Roman text signifies federal
				  statutory or regulatory requirements
Opportunity to examine records; parent participation in
				  meetings.
34
				  CFR §
											300.501
(a)
Opportunity to examine records.
The
				  parents of a child with a disability must be afforded, in accordance with the
				  procedures of §§ 300.613 through 300.621, an opportunity to inspect
				  and review all education records with respect to-
(1) The identification, evaluation, and educational placement
				  of the child; and
(2) The provision of FAPE to the child.
(b)
Parent participation in meetings.
(1) The parents of a child with a disability must be afforded
				  an opportunity to participate in meetings with respect to-
(i) The identification, evaluation, and educational placement
				  of the child; and
(ii) The provision of FAPE to the child.
(2) Each public agency must provide notice consistent with
				  §300.322(a)(1) and (b)(1) to ensure that parents of children with
				  disabilities have the opportunity to participate in meetings described in
				  paragraph (b)(1) of this section.
(3) A meeting does not include informal or unscheduled
				  conversations involving public agency personnel and conversations on issues
				  such as teaching methodology, lesson plans, or coordination of service
				  provision. A meeting also does not include preparatory activities that public
				  agency personnel engage in to develop a proposal or response to a parent
				  proposal that will be discussed at a later meeting.
(c)
Parent involvement in placement
				  decisions.
(1) Each public agency must ensure that a parent of each
				  child with a disability is a member of any group that makes decisions on the
				  educational placement of the parent's child.
(2) In implementing the requirements of paragraph (c)(1) of
				  this section, the public agency must use procedures consistent with the
				  procedures described in §300.322(a) through (b)(1).
(3) If neither parent can participate in a meeting in which a
				  decision is to be made relating to the educational placement of their child,
				  the public agency must use other methods to ensure their participation,
				  including individual or conference telephone calls, or video
				  conferencing.
(4) A placement decision may be made by a group without the
				  involvement of a parent, if the public agency is unable to obtain the parent's
				  participation in the decision. In this case, the public agency must have a
				  record of its attempt to ensure their involvement.
Communication of Procedural Safeguards
34
				  CFR §
											300.504
(a) A copy of the procedural safeguards available to the
				  parents of a child with a disability
or an adult student with a
				  disability
must be given to the parents
or the adult
				  student
only one time a school year, except that a copy also must be
				  given to the parents -
(1) Upon initial referral or parent request for
				  evaluation;
(2) Upon receipt of the first State complaint and upon
				  receipt of the first due process
hearing request;
(3) In accordance with discipline procedures
(see
Procedures When Disciplining a Child with
				  Disabilities,
below);
and
(4) Upon request by a parent
or adult
				  student.
(b) Internet Web site.
The School Administrative Unit
				  (SAU)
may place a current copy of the procedural safeguards notice on
				  its Internet Web site if a web site exists.
Sources the parent may contact for assistance in
				  understanding the parent's rights include the Due Process Office of the Maine
				  Department of Education (207-624-6650), Maine Parent Federation
				  (1-800-870-7746), the Disability Rights Center (1-800-452-1948) and Southern
				  Maine Parent Awareness (1-800-564-9696), and KIDS LEGAL
				  (1-866-624-7787).
A parent may file a dispute resolution request
				  with the Maine Department of Education if the parent believes the school
				  administrative unit (SAU) has violated a requirement under the Maine Special
				  Education Regulations. (See Dispute Resolution Section
				  below.)
Parental Participation
As the parent of a child who has or may have a
				  disability, you are entitled to participate in meetings regarding your child's
				  eligibility determination, initial evaluation or reevaluation, educational
				  placement or the provision of early intervention services for your child age
				  birth through 22 years or the provision of a free appropriate public education
				  for your child age 3 and under 22 years of age. If you are an adult student,
				  you have the right to participate in meetings regarding your eligibility
				  determination, initial evaluation or reevaluation, educational placement or the
				  provision of a free appropriate public education.
WRITTEN NOTICE
34
				  CFR §
											300.503
Notice
Your school administrative unit (SAU) must give you written
				  notice (provide you certain information in writing),
at least 7 days
				  prior to the date the school administrative unit:
1. Proposes to initiate or to change the identification,
				  evaluation, or educational placement of your child, or the provision of
early intervention services for your child age birth to 2 years,
				  or
a free appropriate public education (FAPE)
to your child
				  age 3 and under 22 years of age;
or
2. Refuses to initiate or to change the identification,
				  evaluation, or educational placement of your child, or the provision of
early intervention services for your child age birth through 2 years,
				  or a FAPE
to your child
age 3 and under 22 years of
				  age
.
Content of notice
The written notice must:
1. Describe the action
regarding the referral,
				  evaluation, identification, programming or placement
that your SAU
				  proposes or refuses to take;
2. Explain why your SAU is proposing or refusing to take the
				  action;
3. Describe each evaluation procedure, assessment, record, or
				  report your SAU used in deciding to propose or refuse the action;
4. Include a statement that you have protections under the
				  procedural safeguards provisions in Part B of the IDEA;
5. Tell you how you can obtain a description of the
				  procedural safeguards if the action that your SAU is proposing or refusing is
				  not an initial referral for evaluation;
6. Include resources for you to contact for help in
				  understanding
your rights under
Part B of the IDEA,
such as and the Due Process Office of the Maine Department of Education
				  (207-624-6644), the Maine Parent Federation (1-800-870-7746), and Southern
				  Maine Parent Awareness (1-800-564-9696)
7. Describe any other choices that your child's
				  individualized education program (IEP) Team
, which includes
the parent, considered and the reasons why those choices were rejected;
8. Provide a description of other reasons why your SAU
				  proposed or refused the action.
9.
Include a summary of comments made by the parents,
				  including the parents' description of their child's progress;
				  and
10.
Names and titles of each member.
Notice in understandable language
The notice must be:
1. Written in language understandable to the general public;
and
2. Provided in your native language or other mode of
				  communication you use, unless it is clearly not feasible to do so.
If your native language or other mode of communication is not
				  a written language, your SAU must ensure that:
1. The notice is translated for you orally by other means in
				  your native language or other mode of communication;
2. You understand the content of the notice;
and
3. There is written evidence that 1 and 2 have been
				  met.
Native Language
34
				  CFR §
											300.29
Native language
,
when used with an
				  individual who has limited English proficiency, means the following, including
				  the translation of the procedural safeguards:
1. The language normally used by that person, or, in the case
				  of a child, the language normally used by the child's parents;
2. In all direct contact with a child (including evaluation
				  of the child), the language normally used by the child in the home or learning
				  environment.
For a person with deafness or blindness, or for a person with
				  no written language, the mode of communication is what the person normally uses
				  (such as sign language, Braille, or oral communication).
Electronic Mail
34
				  CFR §
											300.505
If your SAU offers parents the choice of receiving documents
				  by e-mail
and takes the necessary steps to ensure that there are
				  appropriate safeguards to protect the integrity of the process
, you
				  may choose to receive the following by e-mail:
1. Written notice;
2. Procedural safeguards notice;
3.
Advance written notice;
4. IEP;
5. Progress reports;
and
6. Notices related to a due process
hearing
				  request
.
Parental Consent - Definition
34
				  CFR §
											300.9
Consent
Consent means:
1. You have been fully informed in your native language or
				  other mode of communication (such as sign language, Braille, or oral
				  communication) of all information about the action for which you are giving
				  consent.
2. You understand and agree in writing to that action, and
				  the consent describes that action and lists the records (if any) that will be
				  released and to whom;
and
3. You understand that the consent is voluntary on your part
				  and you may withdraw your consent at any time.
Your withdrawal of consent does not negate (undo) an action
				  that has occurred after you gave your consent and before you withdrew
				  it.
If the parent revokes consent in writing for their child's
				  receipt of special education services after the child is initially provided
				  special education and related services, the public agency is not required to
				  amend the child's education records to remove any references to the child's
				  receipt of special education and related services because of the revocation of
				  consent.
Parental Consent
34
				  CFR §
											300.300
Consent for initial evaluation
Your SAU cannot conduct an initial evaluation of your child
				  to determine whether your child is eligible under Part B of the IDEA to receive
				  special education and related services without first providing you with prior
				  written notice of the proposed action and without obtaining your written
				  consent as described under the heading
Parental Consent
.
Your SAU must make reasonable efforts to obtain your informed
				  consent for an initial evaluation to decide whether your child is a child with
				  a disability.
Your consent for initial evaluation does not mean that you
				  have also given your consent for the SAU to start providing special education
				  and related services to your child. If your child is enrolled in public school
				  or you are seeking to enroll your child in a public school and you have refused
				  to provide consent or failed to respond to a request to provide consent for an
				  initial evaluation, your SAU may, but is not required to, seek to conduct an
				  initial evaluation of your child by utilizing the Act's mediation or due
				  process
hearing request
, resolution meeting, and impartial due
				  process hearing procedures (unless required to do so or prohibited from doing
				  so under State law). Your SAU will not violate its obligations to locate,
				  identify and evaluate your child if it does not pursue an evaluation of your
				  child in these circumstances, unless State law requires it to pursue the
				  evaluation.
Generally, either parent may grant consent. In the
				  case of divorced parents with shared parental rights and responsibilities
				  either parent may grant consent. However, in the event that one parent grants
				  consent and the other parent refuses, the school administrative unit is
				  obligated to initiate the action for which consent has been
				  granted.
Special rules for initial evaluation of wards of the
				  State
If a child is a ward of the State and is not living with
				  his/her parent -
The SAU does not need consent from the parent for an initial
				  evaluation to determine if the child is a child with a disability if:
1. Despite reasonable efforts to do so, the SAU cannot find
				  the child's parent;
2. The rights of the parents have been terminated in
				  accordance with State law;
or
3. A judge has assigned the right to make educational
				  decisions and to consent for an initial evaluation to an individual other than
				  the parent.
Ward of the State, as used in the IDEA, means a child who, as
				  determined by the State where the child lives, is:
1. A foster child;
2. Considered a ward of the State under State law;
or
3. In the custody of a public child welfare agency.
Parental consent for services
Your SAU must obtain your informed written consent before
				  providing special education and related services to your child for the first
				  time.
The SAU must make reasonable efforts to obtain your informed
				  consent before providing special education and related services to your child
				  for the first time.
If you do not respond to a request to provide your consent
				  for your child to receive special education and related services for the first
				  time, or if you refuse to give such consent, your SAU may not use the
				  procedural safeguards (i.e., mediation,
State
complaint,
				  resolution meeting, or an impartial due process hearing) in order to obtain
				  agreement or a ruling that the special education and related services
				  (recommended by your child's IEP Team) may be provided to your child without
				  your consent.
If you refuse to give your consent for your child to receive
				  special education and related services for the first time, or if you do not
				  respond to a request to provide such consent and the SAU does not provide your
				  child with the special education and related services for which it sought your
				  consent, your SAU:
1. Is not in violation of the requirement to
provide
				  appropriate services (for a child age birth through 2 years )or
make a
				  free appropriate public education (FAPE) available to your child (
age 3
				  and under 22 years of age)
for its failure to provide those services
				  to your child; and
2. Is not required to have an individualized education
				  program (IEP) meeting or develop an IEP for your child for the special
				  education and related services for which your consent was requested.
Parental consent for reevaluations
Your SAU must obtain your informed consent before it
				  reevaluates your child, unless your SAU can demonstrate that:
1. It took reasonable steps to obtain your consent for your
				  child's reevaluation;
and
2. You did not respond.
If you refuse to consent to your child's reevaluation, the
				  SAU may, but is not required to, pursue your child's reevaluation by using the
				  mediation, resolution meeting, and impartial due process hearing procedures to
				  seek to override your refusal to consent to your child's reevaluation. As with
				  initial evaluations, your SAU does not violate its obligations under Part B of
				  the IDEA if it declines to pursue the reevaluation in this manner.
Documentation of reasonable efforts to obtain parental
				  consent
Your school must maintain documentation of reasonable efforts
				  to obtain parental consent for initial evaluations, to provide special
				  education and related services for the first time, to reevaluation and to
				  locate parents of wards of the State for initial evaluations. The documentation
				  must include a record of the SAU's attempts in these areas, such as:
1. Detailed records of telephone calls made or attempted and
				  the results of those calls;
2. Copies of correspondence sent to the parents and any
				  responses received;
and
3. Detailed records of visits made to the parent's home or
				  place of employment and the results of those visits.
Other consent requirements
Your consent is not required before your SAU may:
1. Review existing data as part of your child's evaluation or
				  a reevaluation;
or
2. Give your child a test or other evaluation that is given
				  to all children unless, before that test or evaluation, consent is required
				  from all parents of all children.
Revisions to Parental Consent effective December 31,
				  2008:
§300.300 Parental consent.
1. If the parent of a child fails to respond to a request
				  for, or refuses to consent to, the initial provision of special education and
				  related services, the public agency-
a. May not use the procedures in subpart E of this part
				  (including the mediation procedures under §300.506 or the due process
				  procedures under §§300.507 through 300.516) in order to obtain
				  agreement or a ruling that the services may be provided to the child;
b. Will not be considered to be in violation of the
				  requirement to make FAPE available to the child because of the failure to
				  provide the child with the special education and related services for which the
				  parent refuses to or fails to provide consent; and
c. Is not required to convene an IEP Team meeting or develop
				  an IEP under §§300.320 and 300.324 for the child.
2. If, at any time subsequent to the initial provision of
				  special education and related services, the parent of a child revokes consent
				  in writing for the continued provision of special education and related
				  services, the public agency-
a. May not continue to provide special education and related
				  services to the child, but must provide prior written notice in accordance with
				  §300.503 before ceasing the provision of special education and related
				  services;
b. May not use the procedures in subpart E of this part
				  (including the mediation procedures under §300.506 or the due process
				  procedures under §§300.507 through 300.516) in order to obtain
				  agreement or a ruling that the services may be provided to the child;
c. Will not be considered to be in violation of the
				  requirement to make FAPE available to the child because of the failure to
				  provide the child with further special education and related services;
				  and
d. Is not required to convene an IEP Team meeting or develop
				  an IEP under §§300.320 and 300.324 for the child for further
				  provision of special education and related services.
Independent Educational Evaluations
34
				  CFR §
											300.502
General
As described below, you have the right to
request
an independent educational evaluation (IEE) of your
				  child
at no cost to you
if you disagree with the evaluation of
				  your child that was obtained by your SAU.
If you request an independent educational evaluation, the SAU
				  must provide you with information about where you may obtain an independent
				  educational evaluation and about the SAU's criteria that apply to independent
				  educational evaluations.
Definitions
Independent educational evaluation means an evaluation
				  conducted by a qualified examiner who is not employed by the SAU responsible
				  for the education of your child.
Public expense means that the SAU either pays for the full
				  cost of the evaluation or ensures that the evaluation is otherwise provided at
				  no cost to you, consistent with the provisions of Part B of the IDEA, which
				  allow each State to use whatever State, local, Federal and private sources of
				  support are available in the State to meet the requirements of Part B of the
				  Act.
Parent right to evaluation at public
				  expense
You have the right to an independent educational evaluation
				  of your child at public expense if you disagree with an evaluation of your
				  child obtained by your SAU, subject to the following conditions:
1. If you request an independent educational evaluation of
				  your child at public expense when you disagree with a school evaluation of your
				  child, your SAU must,
within 30 days
, either: (a) File a due
				  process
hearing request
to request a hearing to show that its
				  evaluation of your child is appropriate; or (b) Ensure that an independent
				  educational evaluation is provided at public expense, unless the SAU
				  demonstrates in a hearing that the evaluation of your child that you obtained
				  did not meet the SAU's criteria.
2. If your SAU requests a hearing and the final decision is
				  that your SAU's evaluation of your child is appropriate, you still have the
				  right to an independent educational evaluation, but not at public
				  expense.
3. If you request an independent educational evaluation of
				  your child, the SAU may ask why you object to the evaluation of your child
				  obtained by your SAU. However, your SAU may not require an explanation and may
				  not unreasonably delay either providing the independent educational evaluation
				  of your child at public expense or filing a due process
hearing
				  request
to request a due process hearing to defend the SAU's
				  evaluation of your child.
You are entitled to only one independent educational
				  evaluation of your child at public expense each time your SAU conducts an
				  evaluation of your child with which you disagree.
Parent-initiated evaluations
If you obtain an independent educational evaluation of your
				  child at public expense or you share with the SAU an evaluation of your child
				  that you obtained at private expense:
1. Your SAU must consider the results of the evaluation of
				  your child, if it meets the SAU's criteria for independent educational
				  evaluations, in any decision made with respect to the provision of a free
				  appropriate public education (FAPE) to your child;
and
2. You or your SAU may present the evaluation as evidence at
				  a due process hearing regarding your child.
Requests for evaluations by hearing officers
If a hearing officer requests an independent educational
				  evaluation of your child as part of a due process hearing, the cost of the
				  evaluation must be at public expense.
SAU criteria
If an independent educational evaluation is at public
				  expense, the criteria under which the evaluation is obtained, including the
				  location of the evaluation and the qualifications of the examiner, must be the
				  same as the criteria that the SAU uses when it initiates an evaluation (to the
				  extent those criteria are consistent with your right to an independent
				  educational evaluation). Except for the criteria described above, a SAU may not
				  impose conditions or timelines related to obtaining an independent educational
				  evaluation at public expense.
Confidentiality of Information
Definitions
34
				  CFR §
											300.611
As used under the heading
Confidentiality of
				  Information
:
Destruction means physical destruction or removal of
					 personal identifiers from information so that the information is no longer
					 personally identifiable.
									 Education records means the type of records covered
					 under the definition of ''education records'' in 34 CFR Part 99 (the
					 regulations implementing the Family Educational Rights and Privacy Act of 1974,
					 20 U.S.C.
					 1232g (FERPA)).
									 Participating agency means any SAU, agency or
					 institution that collects, maintains, or uses personally identifiable
					 information, or from which information is obtained, under Part B of the
					 IDEA.
Personally Identifiable
34
				  CFR §
											300.32
Personally identifiable means information that has:
(a) Your child's name, your name as the parent, or the name
				  of another family member;
(b) Your child's address;
(c) A personal identifier, such as your child's social
				  security number or student number;
or
(d) A list of personal characteristics or other information
				  that would make it possible to identify your child with reasonable
				  certainty.
Notice to Parents
34
				  CFR §
											300.612
The State Educational Agency must give notice that is
				  adequate to fully inform parents about confidentiality of personally
				  identifiable information, including:
1. A description of the extent to which the notice is given
				  in the native languages of the various population groups in the State;
2. A description of the children on whom personally
				  identifiable information is maintained, the types of information sought, the
				  methods the State intends to use in gathering the information (including the
				  sources from whom information is gathered), and the uses to be made of the
				  information;
3. A summary of the policies and procedures that
				  participating agencies must follow regarding storage, disclosure to third
				  parties, retention, and destruction of personally identifiable information;
and
4. A description of all of the rights of parents and children
				  regarding this information, including the rights under the Family Educational
				  Rights and Privacy Act (FERPA) and its implementing regulations in 34 CFR Part
				  99.
Before any major identification, location, or evaluation
				  activity (also known as "child find"), the notice must be published or
				  announced in newspapers or other media, or both, with circulation adequate to
				  notify parents throughout the State of the activity to locate, identify, and
				  evaluate children in need of special education and related services.
Access Rights
34
				  CFR §
											300.613
The participating agency must permit you to inspect and
				  review any education records relating to your child that are collected,
				  maintained, or used by your SAU under Part B of the IDEA. The participating
				  agency must comply with your request to inspect and review any education
				  records on your child without unnecessary delay and before any meeting
				  regarding an individualized education program (IEP), or any impartial due
				  process hearing (including a resolution meeting or a hearing regarding
				  discipline), and in no case more than 45 calendar days after you have made a
				  request.
Your right to inspect and review education records
				  includes:
1. Your right to a response from the participating agency to
				  your reasonable requests for explanations and interpretations of the
				  records;
2. Your right to request that the participating agency
				  provide copies of the records if you cannot effectively inspect and review the
				  records unless you receive those copies;
and
3. Your right to have your representative inspect and review
				  the records.
The participating agency may presume that you have authority
				  to inspect and review records relating to your child unless advised that you do
				  not have the authority under applicable State law governing such matters as
				  guardianship, or separation and divorce.
Record of Access
34
				  CFR §
											300.614
Each participating agency must keep a record of parties
				  obtaining access to education records collected, maintained, or used under Part
				  B of the IDEA (except access by parents and authorized employees of the
				  participating agency), including the name of the party, the date access was
				  given, and the purpose for which the party is authorized to use the
				  records.
Records on More Than One Child
34
				  CFR §
											300.615
If any education record includes information on more than one
				  child, the parents of those children have the right to inspect and review only
				  the information relating to their child or to be informed of that specific
				  information.
List of Types and Locations of
				  Information
34
				  CFR §
											300.616
On request, each participating agency must provide you with a
				  list of the types and locations of education records collected, maintained, or
				  used by the agency.
Fees
34
				  CFR §
											300.617
Each participating agency may charge a fee for copies of
				  records that are made for you under Part B of the IDEA, if the fee does not
				  effectively prevent you from exercising your right to inspect and review those
				  records.
A participating agency may not charge a fee to search for or
				  to retrieve information under Part B of the IDEA.
Amendment of Records at Parent's Request
34
				  CFR §
											300.618
If you believe that information in the education records
				  regarding your child collected, maintained, or used under Part B of the IDEA is
				  inaccurate, misleading, or violates the privacy or other rights of your child,
				  you may request the participating agency that maintains the information to
				  change the information.
The participating agency must decide whether to change the
				  information in accordance with your request within a reasonable period of time
				  of receipt of your request.
If the participating agency refuses to change the information
				  in accordance with your request, it must inform you of the refusal and advise
				  you of the right to a hearing for this purpose as described under the heading
below.
Opportunity for a Hearing
34
				  CFR §
											300.619
The participating agency must, on request, provide you an
				  opportunity for a hearing to challenge information in education records
				  regarding your child to ensure that it is not inaccurate, misleading, or
				  otherwise in violation of the privacy or other rights of your child.
Hearing Procedures
34
				  CFR §
											300.621
A hearing to challenge information in education records must
				  be conducted according to the procedures for such hearings under the Family
				  Educational Rights and Privacy Act (FERPA).
Result of Hearing
34
				  CFR §
											300.620
If, as a result of the hearing, the participating agency
				  decides that the information is inaccurate, misleading or otherwise in
				  violation of the privacy or other rights of the child, it must change the
				  information accordingly and inform you in writing.
If, as a result of the hearing, the participating agency
				  decides that the information is not inaccurate, misleading, or otherwise in
				  violation of the privacy or other rights of your child, it must inform you of
				  your right to place in the records that it maintains on your child a statement
				  commenting on the information or providing any reasons you disagree with the
				  decision of the participating agency.
Such an explanation placed in the records of your child
				  must:
1. Be maintained by the participating agency as part of the
				  records of your child as long as the record or contested portion is maintained
				  by the participating agency;
and
2. If the participating agency discloses the records of your
				  child or the challenged portion to any party, the explanation must also be
				  disclosed to that party.
Consent for Disclosure of Personally Identifiable
				  Information
34
				  CFR §
											300.622
Unless the information is contained in education records, and
				  the disclosure is authorized without parental consent under the Family
				  Educational Rights and Privacy Act (FERPA), your consent must be obtained
				  before personally identifiable information is disclosed to parties other than
				  officials of participating agencies. Except under the circumstances specified
				  below, your consent is not required before personally identifiable information
				  is released to officials of participating agencies for purposes of meeting a
				  requirement of Part B of the IDEA.
Your consent, or consent of an eligible child who has reached
18 years of age (or is emancipated)
under State law, must be
				  obtained before personally identifiable information is released to officials of
				  participating agencies providing or paying for transition services.
If your child is in, or is going to go to, a private school
				  that is not located in the same SAU you reside in, your consent must be
				  obtained before any personally identifiable information about your child is
				  released between officials in the SAU where the private school is located and
				  officials in the SAU where you reside.
Safeguards
34
				  CFR §
											300.623
Each participating agency must protect the confidentiality of
				  personally identifiable information at collection, storage, disclosure, and
				  destruction stages.
One official at each participating agency must assume
				  responsibility for ensuring the confidentiality of any personally identifiable
				  information.
All persons collecting or using personally identifiable
				  information must receive training or instruction regarding your State's
				  policies and procedures regarding confidentiality under Part B of the IDEA and
				  the Family Educational Rights and Privacy Act (FERPA).
Each participating agency must maintain, for public
				  inspection, a current listing of the names and positions of those employees
				  within the agency who may have access to personally identifiable
				  information.
Destruction of Information
34
				  CFR §
											300.624
Your SAU must inform you when personally identifiable
				  information collected, maintained, or used is no longer needed to provide
				  educational services to your child.
The information must be destroyed at your request. However, a
				  permanent record of your child's name, address, and phone number, his or her
				  grades, attendance record, classes attended, grade level completed, and year
				  completed may be maintained without time limitation.
Dispute resolution
20-A M.R.S.A. §7202 et
				  seq.
State Complaint Procedures
Difference between Due Process Hearing and State Complaint
				  Procedures
The regulations for Part B of IDEA set forth separate
				  procedures for State complaints and for due process hearings.
Maine
				  uses Part B dispute resolution processes for children served under Part
				  C.
As explained below, any individual or organization may file a State
				  complaint alleging a violation of any Part B requirement by a SAU, the State
				  Educational Agency, or any other public agency. Only you or a SAU may file a
				  due process
hearing request
on any matter relating to a
				  proposal or a refusal to initiate or change the identification, evaluation or
				  educational placement of a child with a disability, or the provision of
appropriate services (birth to 2 years) or
a free appropriate
				  public education (FAPE) to a child
(3 and under 22 years of
				  age
.) While staff of the State Educational Agency generally must
				  resolve a State complaint within a 60-calendar-day timeline, unless the
				  timeline is properly extended, an impartial due process hearing officer must
				  hear a due process
hearing request
(if not resolved through a
				  resolution meeting or through mediation) and issue a written decision within
				  45-calendar-days after the end of the resolution period, as described in this
				  document under the heading Resolution Process, unless the hearing officer
				  grants a specific extension of the timeline at your request or the SAU's
				  request. The State complaint, resolution and due process hearing procedures are
				  described more fully below.
Adoption of State Complaint Procedures
34
				  CFR §
											300.151
General
Each State Educational Agency must have written procedures
				  for:
1. Resolving any complaint, including a complaint filed by an
				  organization or individual from another State;
2. Widely disseminating the State complaint procedures to
				  parents and other interested individuals, including parent training and
				  information centers, protection and advocacy agencies, independent living
				  centers, and other appropriate entities
Remedies for denial of appropriate
				  services
In resolving a State complaint in which the State Educational
				  Agency has found a failure to provide appropriate services, the State
				  Educational Agency must address:
1.
The failure to provide appropriate services,
				  including corrective action appropriate to address the needs of the child;
and
2. Appropriate future provision of services for all children
				  with disabilities.
Minimum State Complaint Procedures
34
				  CFR §
											300.152
Time limit; minimum procedures
Each State Educational Agency must include in its State
				  complaint procedures a time limit of 60 calendar days after a complaint is
				  filed to:
1. Carry out an independent on-site investigation, if the
				  State Educational Agency determines that an investigation is necessary;
2. Give the complainant the opportunity to submit additional
				  information, either orally or in writing, about the allegations in the
				  complaint;
3. Provide the SAU or other public agency with the
				  opportunity to respond to the complaint, including, at a minimum: (a) at the
				  option of the agency, a proposal to resolve the complaint;
and
(b) an opportunity for a parent who
				  has filed a complaint and the agency to agree voluntarily to engage in
				  mediation;
4.
Review all relevant information and make an
				  independent determination as to whether the SAU or other public agency is
				  violating a requirement of Part B of the IDEA;
and
5. Issue a written decision to the complainant that addresses
				  each allegation in the complaint and contains: (a) findings of fact and
				  conclusions;
and
(b) the reasons for the
				  State Educational Agency's final decision.
Time extension; final decision;
				  implementation
The State Educational Agency's procedures described above
				  also must:
1. Permit an extension of the 60 calendar-day time limit only
				  if: (a) exceptional circumstances exist with respect to a particular State
				  complaint;
or
(b) the parent and the SAU
				  or other public agency involved voluntarily agree to extend the time to resolve
				  the matter through mediation or alternative means of dispute resolution, if
				  available in the State.
2. Include procedures for effective implementation of the
				  State Educational Agency's final decision, if needed, including: (a) technical
				  assistance activities; (b) negotiations;
and
(c) corrective actions to achieve
				  compliance.
State complaints and due process hearings
If a written State complaint is received that is also the
				  subject of a due process hearing as described below under the heading
Filing a Due Process Hearing Request,
or the State complaint
				  contains multiple issues of which one or more are part of such a hearing, the
				  State must set aside the State complaint, or any part of the State complaint
				  that is being addressed in the due process hearing until the hearing is over.
				  Any issue in the State complaint that is not a part of the due process hearing
				  must be resolved using the time limit and procedures described above.
If an issue raised in a State complaint has previously been
				  decided in a due process hearing involving the same parties (you and the SAU),
				  then the due process hearing decision is binding on that issue and the State
				  Educational Agency must inform the complainant that the decision is
				  binding.
A complaint alleging a SAU's or other public agency's failure
				  to implement a due process hearing decision must be resolved by the State
				  Educational Agency.
Filing a Complaint
34
				  CFR §
											300.153
An organization or individual may file a signed written State
				  complaint under the procedures described above.
The State complaint must include:
1. A statement that a SAU or other public agency has violated
				  a requirement of Part B of the IDEA or its regulations;
2. The facts on which the statement is based;
3. The signature and contact information for the complainant;
				  and
4. If alleging violations regarding a specific child:
(a) The name of the child and address of the residence of the
				  child;
(b) The name of the school the child is attending;
(c) 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;
(d) A description of the nature of the problem of the child,
				  including facts relating to the problem;
and
(e) A proposed resolution of the problem to the extent known
				  and available to the party filing the complaint at the time the complaint is
				  filed.
The complaint must allege a violation that occurred not more
				  than one year prior to the date that the complaint is received as described
				  under the heading
Adoption of State Complaint Procedures,
unless a longer period is reasonable because the complainant is
				  requesting compensatory services for a violation that allegedly occurred not
				  more than two years prior to the date that the written complaint is received by
				  the Department of Education.
The party filing the State complaint must forward a copy of
				  the complaint to the SAU or other public agency serving the child at the same
				  time the party files the complaint with the State Educational Agency.
The SEA, under
				  34 CFR
				  300.537, may determine the State enforcement
				  mechanisms for resolution session agreements and mediation agreements.
Due Process Hearing Procedures
Filing a Due Process Hearing Request
34
				  CFR §
											300.507
General
You or the SAU may file a due process
hearing
				  request
on any matter relating to a proposal or a refusal to initiate
				  or change the identification, evaluation or educational placement of your
				  child, or the provision of
appropriate services for your child age
				  birth through 2 years or
a free appropriate public education (FAPE) to
				  your child
age 3 and under 22 years of age
.
The due process
hearing request
must allege
				  a violation that happened not more than two years before you or the SAU knew or
				  should have known about the alleged action that forms the basis of the due
				  process
hearing request
.
The above timeline does not apply to you if you could not
				  file a due process
hearing request
within the timeline
				  because:
1. The SAU specifically misrepresented that it had resolved
				  the issues identified in the
hearing request;
or
2. The SAU withheld information from you that it was required
				  to provide you under Part B of the IDEA.
Information for parents
The SAU must inform you of any free or low-cost legal and
				  other relevant services available in the area if you request the information,
or
if you or the SAU file a due process
hearing request
.
Due Process Hearing Request
34
				  CFR §
											300.508
General
In order to request a hearing, you or the SAU (or your
				  attorney or the SAU's attorney) must submit a due process
hearing
				  request
to the other party. That
hearing request
must
				  contain all of the content listed below and must be kept confidential.
You or the SAU, whichever one filed the
hearing
				  request
, must also provide the State Educational Agency with a copy of
				  the
hearing request
. A
hearing request
will
				  be considered received, and the regulatory timelines applicable to a hearing in
				  effect, once the State Educational Agency has received its copy of a request
				  containing the required information and has received written confirmation that
				  the opposing party has also received the request.
Content of the
hearing
				  request
The due process
hearing request
must
				  include:
1. The name of the child;
2. The address of the child's residence;
3. The name of the child's school;
4. If the child is a homeless child or youth, the child's
				  contact information and the name of the child's school;
5. A description of the nature of the problem of the child
				  relating to the proposed or refused action, including facts relating to the
				  problem;
and
6. A proposed resolution of the problem to the extent known
				  and available to you or the SAU at the time.
Notice required before a hearing on a due process
hearing request
You or the SAU may not have a due process hearing until you
				  or the SAU (or your attorney or the SAU's attorney), files a due process
hearing request
that includes the information listed
				  above.
Sufficiency of
hearing request
In order for a due process
hearing request
to go forward, it must be considered sufficient. The due process
hearing request
will be considered sufficient (to have met the
				  content requirements above) unless the party receiving the due process
hearing request
(you or the SAU) notifies the hearing officer
				  and the other party in writing, within 15 calendar days of receiving the
hearing request
, that the receiving party believes that the
				  due process
hearing request
does not meet the requirements
				  listed above.
Within five calendar days of receiving the notification the
				  receiving party (you or the SAU) considers a due process
hearing
				  request
insufficient, the hearing officer must decide if the due
				  process
hearing request
meets the requirements listed above,
				  and notify you and the SAU in writing immediately.
Hearing request
amendment
You or the SAU may make changes to the
hearing
				  request
only if:
1. The other party approves of the changes in writing and is
				  given the chance to resolve the due process
hearing request
through a resolution meeting, described below;
or
2. By no later than five days before the due process hearing
				  begins, the hearing officer grants permission for the changes.
If the complaining party (you or the SAU) makes changes to
				  the due process
hearing request
, the timelines for the
				  resolution meeting (within 15 calendar days of receiving the
hearing
				  request
) and the time period for resolution (within 30 calendar days
				  of receiving the
request
) start again on the date the amended
hearing request
is filed.
Local educational agency (LEA) or SAU response to a due
				  process hearing request
If the SAU has not sent a prior written notice to you, as
				  described under the heading
Prior Written Notice
, regarding the
				  subject matter contained in your due process
hearing request
,
				  the SAU must, within 10 calendar days of receiving the due process
hearing request
, send to you a response that includes:
1. An explanation of why the SAU proposed or refused to take
				  the action raised in the due process
hearing request
;
2. A description of other options that your child's
				  individualized education program (IEP) Team considered and the reasons why
				  those options were rejected;
3. A description of each evaluation procedure, assessment,
				  record, or report the SAU used as the basis for the proposed or refused action;
and
4. A description of the other factors that are relevant to
				  the SAU's proposed or refused action.
Providing the information in items 1-4 above does not prevent
				  the SAU from asserting that your due process
hearing request
was insufficient.
Other party response to a due process hearing
				  request
Except as stated under the sub-heading immediately above,
Local educational agency (LEA) or SAU response to a due process hearing
				  request
, the party receiving a due process
hearing
				  request
must, within 10 calendar days of receiving the
request
, send the other party a response that specifically
				  addresses the issues in the
due process hearing
				  request
.
Model Forms
34
				  CFR §
											300.509
The State Educational Agency must develop model forms to help
				  you file a due process
hearing request
and a State complaint.
				  However, your State or the SAU may not require you to use these model forms. In
				  fact, you can use this form or another appropriate model form, so long as it
				  contains the required information for filing a due process
hearing
				  request
or a State complaint.
Mediation
34
				  CFR §
											300.506
General
The SAU must make mediation available to allow you and the
				  SAU to resolve disagreements involving any matter under Part B of the IDEA,
				  including matters arising prior to the filing of a due process
hearing
				  request
. Thus, mediation is available to resolve disputes under Part B
				  of the IDEA, whether or not you have filed a due process
hearing
				  request
to request a due process hearing as described under the
				  heading
Filing a Due Process Hearing Request.
Requirements
The procedures must ensure that the mediation process:
1. Is voluntary on your part and the SAU's part;
2. Is not used to deny or delay your right to a due process
				  hearing, or to deny any other rights you have under Part B of the IDEA;
and
3. Is conducted by a qualified and impartial mediator who is
				  trained in effective mediation techniques.
The SAU may develop procedures that offer parents and schools
				  that choose not to use the mediation process, an opportunity to meet, at a time
				  and location convenient to you, with a disinterested 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;
and
2. Who would explain the benefits and encourage the use of
				  the mediation process to you.
The State must have a list of people who are qualified
				  mediators and know the laws and regulations relating to the provision of
				  special education and related services. The State Educational Agency must
				  select mediators on a random, rotational, or other impartial basis. The State
				  is responsible for the cost of the mediation process, including the costs of
				  meetings. Each meeting in the mediation process must be scheduled in a timely
				  manner and held at a place that is convenient for you and the SAU.
If you and the SAU resolve a dispute through the mediation
				  process, both parties must enter into a legally binding agreement that sets
				  forth the resolution and that:
1. States that all discussions that happened during the
				  mediation process will remain confidential and may not be used as evidence in
				  any subsequent due process hearing or civil proceeding;
and
2. Is signed by both you and a representative of the SAU who
				  has the authority to bind the SAU.
A written, signed mediation agreement is enforceable in any
				  State court of competent jurisdiction (a court that has the authority under
				  State law to hear this type of case) or in a district court of the United
				  States.
(See Section
				  XV I(3)(B)(9)of this
				  rule)
Discussions that happened during the mediation process must
				  be confidential. They cannot be used as evidence in any future due process
				  hearing or civil proceeding of any Federal court or State court of a State
				  receiving assistance under Part B of IDEA.
Impartiality of mediator
The mediator:
1. May not be an employee of the State Educational Agency or
				  the SAU that is involved in the education or care of your child;
and
2. Must not have a personal or professional interest which
				  conflicts with the mediator's objectivity.
A person who otherwise qualifies as a mediator is not an
				  employee of a SAU or State agency solely because he or she is paid by the
				  agency or SAU to serve as a mediator.
An attorney may represent a school administrative
				  unit in a mediation only when an attorney represents the parents. An attorney
				  representing a parent shall provide the superintendent of the school
				  administrative unit and the Due Process Office of the Maine Department of
				  Education with at least 7 days written notice prior to the mediation that they
				  will be representing the parent at the mediation. Parties may consult with
				  their attorneys prior to and after engaging in mediation.
If both parties agree, the parties may sign a waiver
				  of the 7-day written notice of attendance of the parent's attorney in
				  mediation. A copy of the signed waiver must be provided to the Department of
				  Education Due Process Office.
If the parent does not choose to participate in
				  mediation the parent may be contacted by a due process consultant form the
				  Maine Department of Education who will discuss with the parent the benefits of
				  mediation. If the parent would like to request a mediation or would like more
				  information about mediation, the parent may contact the Due Process Office of
				  the Maine Department of Education at 624-6644.
The Child's Placement
Status
				  During Pendency of Appeals ("Stay Put")
34
				  CFR §
											300.518
Except as provided below under the heading
PROCEDURES
				  WHEN DISCIPLINING CHILDREN WITH DISABILITIES,
during the
				  pendency of a mediation or State complaint investigation request, or
once a due process
hearing request
is sent to the other
				  party,, and while waiting for the decision of any impartial due process hearing
				  or court proceeding, your child must remain in his or her current educational
				  placement unless you and the State or SAU agree otherwise,
If the due process
hearing request
involves
				  an application for initial admission to public school, your child, with your
				  consent, must be placed in the regular public school program until the
				  completion of all such proceedings.
If the due process
hearing request
involves
				  an application for initial services under Part B of the IDEA for a child who is
				  transitioning from being served under Part C of the IDEA to Part B of the IDEA
				  and who is no longer eligible for Part C services because the child has turned
				  three, the SAU is not required to provide the Part C services that the child
				  has been receiving. If the child is found eligible under Part B of the IDEA and
				  you consent for the child to receive special education and related services for
				  the first time, then, pending the outcome of the proceedings, the SAU must
				  provide those special education and related services that are not in dispute
				  (those which you and the SAU both agree upon).
Resolution Process
34
				  CFR §
											300.510
Resolution meeting
Within 15 calendar days of receiving notice of your due
				  process
hearing request
, and before the due process hearing
				  begins, the SAU must convene a meeting with you and the relevant member or
				  members of the individualized education program (IEP) Team who have specific
				  knowledge of the facts identified in your due process
hearing
				  request
. The meeting:
1. Must include a representative of the SAU who has
				  decision-making authority on behalf of the SAU;
and
2. May not include an attorney of the SAU unless you are
				  accompanied by an attorney.
You and the SAU determine the relevant members of the IEP
				  Team to attend the meeting.
The purpose of the meeting is for you to discuss your due
				  process
hearing request
, and the facts that form the basis of
				  the
hearing request
, so that the SAU has the opportunity to
				  resolve the dispute.
The resolution meeting is not necessary if:
1. You and the SAU agree in writing to waive the meeting;
or
2. You and the SAU agree to use the mediation process, as
				  described under the heading
Mediation
.
Resolution period
If the SAU has not resolved the due process
hearing
				  request
to your satisfaction within 30 calendar days of the receipt of
				  the
hearing request
(during the time period for the resolution
				  process), the due process hearing may occur.
The 45-calendar-day timeline for issuing a final decision
				  begins at the expiration of the 30- calendar-day resolution period, with
				  certain exceptions for adjustments made to the 30-calendar- day resolution
				  period, as described below.
Except where you and the SAU have both agreed to waive the
				  resolution process or to use mediation, your failure to participate in the
				  resolution meeting will delay the timelines for the resolution process and due
				  process hearing until you agree to participate in a meeting.
If after making reasonable efforts and documenting such
				  efforts, the SAU is not able to obtain your participation in the resolution
				  meeting, the SAU may, at the end of the 30-calendar-day resolution period,
				  request that a hearing officer dismiss your due process
hearing
				  request
. Documentation of such efforts must include a record of the
				  SAU's attempts to arrange a mutually agreed upon time and place, such
				  as:
1. Detailed records of telephone calls made or attempted and
				  the results of those calls;
2. Copies of correspondence sent to you and any responses
				  received; and
3. Detailed records of visits made to your home or place of
				  employment and the results of those visits.
If the SAU fails to hold the resolution meeting within 15
				  calendar days of receiving notice of your due process
hearing
				  request
or
fails to participate
				  in the resolution meeting, you may ask a hearing officer to order that the
				  45-calendar-day due process hearing timeline begin.
Adjustments to the 30-calendar-day resolution
				  period
If you and the SAU agree in writing to waive the resolution
				  meeting, then the 45-calendar-day timeline for the due process hearing starts
				  the next day.
After the start of mediation or the resolution meeting and
				  before the end of the 30-calendar-day resolution period, if you and the SAU
				  agree in writing that no agreement is possible, then the 45- calendar-day
				  timeline for the due process hearing starts the next day.
If you and the SAU agree to use the mediation process, at the
				  end of the 30-calendar-day resolution period, both parties can agree in writing
				  to continue the mediation until an agreement is reached. However, if either you
				  or the SAU withdraws from the mediation process, then the 45-calendar-day
				  timeline for the due process hearing starts the next day.
Written settlement agreement
If a resolution to the dispute is reached at the resolution
				  meeting, you and the SAU must enter into a legally binding agreement that
				  is:
1. Signed by you and a representative of the SAU who has the
				  authority to bind the SAU;
and
2. Enforceable in any State court of competent jurisdiction
				  (a State court that has authority to hear this type of case) or in a district
				  court of the United States. (See Section
				  XV I(11) (F))
Agreement review period
If you and the SAU enter into an agreement as a result of a
				  resolution meeting, either party (you or the SAU) may void the agreement within
				  3 business days of the time that both you and the SAU signed the
				  agreement.
Hearings on Due Process
Hearing
				  Requests
Impartial Due Process Hearing
34
				  CFR §
											300.511
General
Whenever a due process
hearing request
is
				  filed, you or the SAU involved in the dispute must have an opportunity for an
				  impartial due process hearing, as described in the
Due
				  Process
Hearing Request
and
Resolution
				  Process
sections.
Impartial hearing officer
At a minimum, a hearing officer:
1. Must not be an employee of the State Educational Agency or
				  the SAU that is involved in the education or care of the child. However, a
				  person is not an employee of the agency solely because he/she is paid by the
				  agency to serve as a hearing officer;
2. Must not have a personal or professional interest that
				  conflicts with the hearing officer's objectivity in the hearing;
3. Must be knowledgeable and understand the provisions of the
				  IDEA, and Federal and State regulations pertaining to the IDEA, and legal
				  interpretations of the IDEA by Federal and State courts;
and
4. Must have the knowledge and ability to conduct hearings,
				  and to make and write decisions, consistent with appropriate, standard legal
				  practice.
Each SAU must keep a list of those persons who serve as
				  hearing officers that includes a statement of the qualifications of each
				  hearing officer.
Subject matter of due process hearing
The party (you or the SAU) that requests the due process
				  hearing may not raise issues at the due process hearing that were not addressed
				  in the due process
hearing request
, unless the other party
				  agrees.
Timeline for requesting a hearing
You or the SAU must request an impartial hearing on a due
				  process
hearing request
within two years of the date you or
				  the SAU knew or should have known about the issue addressed in the
hearing request
.
Exceptions to the timeline
The above timeline does not apply to you if you could not
				  file a due process
hearing request
because:
1. The SAU specifically misrepresented that it had resolved
				  the problem or issue that you are raising in your
hearing
				  request
;
or
2. The SAU withheld information from you that it was required
				  to provide to you under Part B of the IDEA.
Hearing Rights
34
				  CFR §
											300.512
General
Any party to a due process hearing (including a hearing
				  relating to disciplinary procedures) has the right to:
1. Be accompanied and advised by a lawyer and/or persons with
				  special knowledge or training regarding the problems of children with
				  disabilities;
2. Present evidence and confront, cross-examine, and require
				  the attendance of witnesses;
3. Prohibit the introduction of any evidence at the hearing
				  that has not been disclosed to that party at least five business days before
				  the hearing;
4. Obtain a written, or, at your option, electronic,
				  word-for-word record of the hearing;
and
5. Obtain written, or, at your option, electronic findings of
				  fact and decisions.
Additional disclosure of information
At least five business days prior to a due process hearing,
				  you and the SAU must disclose to each other all evaluations completed by that
				  date and recommendations based on those evaluations that you or the SAU intend
				  to use at the hearing.
A hearing officer may prevent any party that fails to comply
				  with this requirement from introducing the relevant evaluation or
				  recommendation at the hearing without the consent of the other party.
Parental rights at hearings
You must be given the right to:
1. Have your child present;
2. Open the hearing to the public;
and
3. Have the record of the hearing, the findings of fact and
				  decisions provided to you at no cost.
Hearing Decisions
34
				  CFR §
											300.513
Decision of hearing officer
A hearing officer's decision on whether your child
(age birth through 2 years)
received
appropriate
				  services or (age 3 and under 22 years of age) received
a free
				  appropriate public education (FAPE) must be based on substantive
				  grounds.
In matters alleging a procedural violation, a hearing officer
				  may find that your child did not receive
appropriate services
				  or
FAPE only if the procedural inadequacies:
1. Interfered with your child's right to
appropriate
				  services or
a free appropriate public education;
2. Significantly interfered with your opportunity to
				  participate in the decision-making process regarding the provision of
appropriate services or
a free appropriate public education
				  (FAPE) to your child;
or
3. Caused a deprivation of an educational benefit.
Final Decision Notice
Every decision made at the conclusion of a proceeding
				  subject to this rule shall be in writing and shall include findings of fact
				  sufficient to apprise the parties and any interested member of the public of
				  the basis for the decision.
Construction clause
None of the provisions described above can be interpreted to
				  prevent a hearing officer from ordering a SAU to comply with the requirements
				  in the procedural safeguards section of the Federal regulations under Part B of
				  the IDEA (34 CFR
				  §§
										300.500 through
				  300.536).
Separate request for a due process
				  hearing
Nothing in the procedural safeguards section of the Federal
				  regulations under Part B of the IDEA (34 CFR §§
										300.500
				  through 300.536) can be interpreted to
				  prevent you from filing a separate due process
hearing request
on an issue separate from a due process
hearing request
already filed.
Findings and decision to advisory panel and general
				  public
The State Educational Agency or the SAU, (whichever was
				  responsible for your hearing) after deleting any personally identifiable
				  information, must:
1. Provide the findings and decisions in the due process
				  hearing or appeal to the State special education advisory panel;
and
2. Make those findings and decisions available to the
				  public.
Appeals
Finality of Decision; Appeal
34
				  CFR §
											300.514
Finality of hearing decision
A decision made in a due process hearing (including a hearing
				  relating to disciplinary procedures)
must be in writing and
is
				  final, except that any party involved in the hearing (you or the SAU) may
				  appeal the decision by bringing a civil action, as described below.
Timelines and Convenience of Hearings and
				  Reviews
34
				  CFR §
											300.515
The State Educational Agency must ensure that not later than
				  45 calendar days after the expiration of the 30-calendar-day period for
				  resolution meetings
or
, as described
				  under the sub-heading
Adjustments to the 30-calendar-day resolution
				  period
,
not later than 45 calendar days after the
				  expiration of the adjusted time period:
1. A final decision is reached in the hearing;
and
2. A copy of the decision is mailed to each of the
				  parties.
A hearing officer may grant specific extensions of time
				  beyond the 45-calendar-day time period described above at the request of either
				  party.
Each hearing must be conducted at a time and place that is
				  reasonably convenient to you and your child.
Civil Actions, Including the Time Period in Which to
				  File Those Actions 34 CFR
				  §
											300.516
General
Any party (you or the SAU) who does not agree with the
				  findings and decision in the due process hearing (including a hearing relating
				  to disciplinary procedures) has the right to bring a civil action with respect
				  to the matter that was the subject of the due process hearing. The action may
				  be brought in a State court of competent jurisdiction (a State court that has
				  authority to hear this type of case) or in a district court of the United
				  States without regard to the amount in dispute.
If the parent has any questions regarding this
				  requirement, they should be directed to the Due Process Office of the Maine
				  Department of Education at 624-6650.
Time limitation
The party (you or the SAU) bringing the action shall have
90 day from the receipt
of the decision of the hearing officer
				  to file a civil action.
Additional procedures
In any civil action, the court:
A. Receives the records of the administrative
				  proceedings;
B. Hears additional evidence at your request or at the SAU's
				  request;
and
C. Bases its decision on the preponderance of the evidence
				  and grants the relief that the court determines to be appropriate.
Jurisdiction of district courts
The district courts of the United States have authority to
				  rule on actions brought under Part B of the IDEA without regard to the amount
				  in dispute.
Rule of construction
Nothing in Part B of the IDEA restricts or limits the rights,
				  procedures, and remedies available under the U.S. Constitution, the Americans
				  with Disabilities Act of 1990, Title V of the Rehabilitation Act of 1973
				  (Section 504), or other Federal laws protecting the rights of children with
				  disabilities, except that before the filing of a civil action under these laws
				  seeking relief that is also available under Part B of the IDEA, the due process
				  procedures described above must be exhausted to the same extent as would be
				  required if the party filed the action under Part B of the IDEA. This means
				  that you may have remedies available under other laws that overlap with those
				  available under the IDEA, but in general, to obtain relief under those other
				  laws, you must first use the available administrative remedies under the IDEA
				  (i.e., the due process
hearing request
, resolution meeting,
				  and impartial due process hearing procedures) before going directly into
				  court.
Attorneys' Fees
34
				  CFR §
											300.517
General
In any action or proceeding brought under Part B of the IDEA,
				  if you prevail, the court, in its discretion, may award reasonable attorneys'
				  fees as part of the costs to you.
In any action or proceeding brought under Part B of the IDEA,
				  the court, in its discretion, may award reasonable attorneys' fees as part of
				  the costs to a prevailing State Educational Agency or SAU, to be paid by your
				  attorney, if the attorney: (a) filed a
due process hearing
				  request
or court case that the court finds is frivolous, unreasonable,
				  or without foundation;
or
(b) continued
				  to litigate after the litigation clearly became frivolous, unreasonable, or
				  without foundation;
or
In any action or
				  proceeding brought under Part B of the IDEA, the court, in its discretion, may
				  award reasonable attorneys' fees as part of the costs to a prevailing State
				  Educational Agency or SAU, to be paid by you or your attorney, if your request
				  for a due process hearing or later court case was presented for any improper
				  purpose, such as to harass, to cause unnecessary delay, or to unnecessarily
				  increase the cost of the action or proceeding.
Award of fees
A court awards reasonable attorneys' fees as follows:
1. Fees must be based on rates prevailing in the community in
				  which the action or hearing arose for the kind and quality of services
				  furnished. No bonus or multiplier may be used in calculating the fees
				  awarded.
2. Fees may not be awarded and related costs may not be
				  reimbursed in any action or proceeding under Part B of the IDEA for services
				  performed after a written offer of settlement to you if:
a. The offer is made within the time prescribed by Rule 68 of
				  the Federal Rules of Civil Procedure or, in the case of a due process hearing
				  or State-level review, at any time more than 10 calendar days before the
				  proceeding begins;
b. The offer is not accepted within 10 calendar days;
and
c. The court or administrative hearing officer finds that the
				  relief finally obtained by you is not more favorable to you than the offer of
				  settlement.
Despite these restrictions, an award of attorneys' fees and
				  related costs may be made to you if you prevail and you were substantially
				  justified in rejecting the settlement offer.
3. Fees may not be awarded relating to any meeting of the
				  individualized education program (IEP) Team unless the meeting is held as a
				  result of an administrative proceeding or court action.
A resolution meeting, as described under the heading
Resolution meeting
, is not considered a meeting convened as a
				  result of an administrative hearing or court action, and also is not considered
				  an administrative hearing or court action for purposes of these attorneys' fees
				  provisions.
The court reduces, as appropriate, the amount of the
				  attorneys' fees awarded under Part B of the IDEA, if the court finds
				  that:
1. You, or your attorney, during the course of the action or
				  proceeding, unreasonably delayed the final resolution of the dispute;
2. The amount of the attorneys' fees otherwise authorized to
				  be awarded unreasonably exceeds the hourly rate prevailing in the community for
				  similar services by attorneys of reasonably similar skill, reputation, and
				  experience;
3. The time spent and legal services furnished were excessive
				  considering the nature of the action or proceeding;
or
4. The attorney representing you did not provide to the SAU
				  the appropriate information in the due process request notice as described
				  under the heading
Due Process Hearing Request
.
However, the court may not reduce fees if the court finds
				  that the State or SAU unreasonably delayed the final resolution of the action
				  or proceeding or there was a violation under the procedural safeguards
				  provisions of Part B of the IDEA.
Procedures When Disciplining
Children with Disabilities
Authority of School Personnel
34
				  CFR §
											300.530
Case-by-case determination
School personnel may consider any unique circumstances on a
				  case-by-case basis, when determining whether a change of placement, made in
				  accordance with the following requirements related to discipline, is
				  appropriate for a child with a disability who violates a school code of student
				  conduct.
General
To the extent that they also take such action for children
				  without disabilities, school personnel may, for not more than
10 school
				  days
in a row, remove a child with a disability who violates a code of
				  student conduct from his or her current placement to an appropriate interim
				  alternative educational setting (which must be determined by the child's
				  individualized education program (IEP) Team), another setting, or suspension.
				  School personnel may also impose additional removals of the child of not more
				  than
10 school days
in a row in that same school year for separate
				  incidents of misconduct, as long as those removals do not constitute a change
				  of placement (see
Change of Placement Because of Disciplinary
				  Removals
for the definition, below).
Once a child with a disability has been removed from his or
				  her current placement for a total of
10 school days
in the same
				  school year, the SAU must, during any subsequent days of removal in that school
				  year, provide services to the extent required below under the sub-heading
Services
.
Additional authority
If the behavior that violated the student code of conduct was
				  not a manifestation of the child's disability (see
Manifestation
				  determination
, below) and the disciplinary change of placement would
				  exceed
10 school days
in a row, school personnel may apply the
				  disciplinary procedures to that child with a disability in the same manner and
				  for the same duration as it would to children without disabilities, except that
				  the school must provide services to that child as described below under
Services
. The child's IEP Team determines the interim alternative
				  educational setting for such services.
Services
The services that must be provided to a child with a
				  disability who has been removed from the child's current placement may be
				  provided in an interim alternative educational setting.
A SAU is only required to provide services to a child with a
				  disability who has been removed from his or her current placement for
10
				  school days or less
in that school year, if it provides services to a
				  child without disabilities who has been similarly removed.
A child with a disability who is removed from the child's
				  current placement for
more than 10 school days
must:
1.
Continue to receive educational services, so
				  as to enable the child to continue to participate in the general education
				  curriculum, although in another setting, and to progress toward meeting the
				  goals set out in the child's IEP;
and
2. Receive, as appropriate, a functional behavioral
				  assessment, and behavioral intervention services and modifications, that are
				  designed to address the behavior violation so that it does not happen
				  again.
After a child with a disability has been removed from his or
				  her current placement for
10 school days
in that same school year,
				  and
if
the current removal is for
10 school days
in a row or less
and
if the removal is
				  not a change of placement (see definition below),
then
school personnel, in consultation
				  with at least one of the child's teachers, determine the extent to which
				  services are needed to enable the child to continue to participate in the
				  general education curriculum, although in another setting, and to progress
				  toward meeting the goals set out in the child's IEP. If the removal is a change
				  of placement (see definition below), the child's IEP Team determines the
				  appropriate services to enable the child to continue to participate in the
				  general education curriculum, although in another setting, and to progress
				  toward meeting the goals set out in the child's IEP.
Manifestation determination
Within
10 school days
of any decision to change
				  the placement of a child with a disability because of a violation of a code of
				  student conduct (except for a removal that is for
10 school days
in a row or less and not a change of placement), the SAU, the parent, and
				  relevant members of the IEP Team (as determined by the parent and the SAU) must
				  review all relevant information in the student's file, including the child's
				  IEP, any teacher observations, and any relevant information provided by the
				  parents to determine:
1. If the conduct in question was caused by, or had a direct
				  and substantial relationship to, the child's disability;
or
2. If the conduct in question was the direct result of the
				  SAU's failure to implement the child's IEP.
If the SAU, the parent, and relevant members of the child's
				  IEP Team determine that either of those conditions was met, the conduct must be
				  determined to be a manifestation of the child's disability.
If the SAU, the parent, and relevant members of the child's
				  IEP Team determine that the conduct in question was the direct result of the
				  SAU's failure to implement the IEP, the SAU must take immediate action to
				  remedy those deficiencies.
Determination that behavior was a manifestation of the
				  child's disability
If the SAU, the parent, and relevant members of the IEP Team
				  determine that the conduct was a manifestation of the child's disability, the
				  IEP Team must either:
1. Conduct a functional behavioral assessment, unless the SAU
				  had conducted a functional behavioral assessment before the behavior that
				  resulted in the change of placement occurred, and implement a behavioral
				  intervention plan for the child;
or
2. If a behavioral intervention plan already has been
				  developed, review the behavioral intervention plan, and modify it, as
				  necessary, to address the behavior.
Except as described below under the sub-heading
Special
				  circumstances
, the SAU must return the child to the placement from which
				  the child was removed, unless the parent and the district agree to a change of
				  placement as part of the modification of the behavioral intervention
				  plan.
Special circumstances
Whether or not the behavior was a manifestation of the
				  child's disability, school personnel may remove a student to an interim
				  alternative educational setting (determined by the child's IEP Team) for up to
				  45 school days, if the child:
1. Carries a weapon (see the definition below) to school or
				  has a weapon at school, on school premises, or at a school function under the
				  jurisdiction of the State Educational Agency or a SAU;
2. Knowingly has or uses illegal drugs (see the definition
				  below), or sells or solicits the sale of a controlled substance, (see the
				  definition below), while at school, on school premises, or at a school function
				  under the jurisdiction of the State Educational Agency or a SAU;
or
3. Has inflicted serious bodily injury (see the definition
				  below) upon another person while at school, on school premises, or at a school
				  function under the jurisdiction of the State Educational Agency or a
				  SAU.
Definitions
Controlled substance
means a drug or other
				  substance identified under schedules I, II, III, IV, or V in section 202(c) of
				  the Controlled Substances Act (21 U.S.C.
				  812(c)).
Illegal drug
means a controlled substance; but
				  does not include a controlled substance that is legally possessed or used under
				  the supervision of a licensed health-care professional or that is legally
				  possessed or used under any other authority under that Act or under any other
				  provision of Federal law.
Serious bodily injury
has the meaning given the
				  term ''serious bodily injury'' under paragraph (3) of subsection (h) of section
				  1365 of title 18, United States Code:
Bodily injury that involves a
				  substantial risk of death; extreme physical pain; protracted and obvious
				  disfigurement; or protracted loss or impairment of the function of a bodily
				  member, organ or mental faculty.
Weapon
has the meaning given the term
				  ''dangerous weapon'' under paragraph (2) of the first subsection (g) of section
				  930 of title 18, United States Code:
A weapon, device, instrument,
				  material, or substance, animate or inanimate, that is used for, or is readily
				  capable of, causing death or serious bodily injury, except that such term does
				  not include a pocket knife with a blade of less than 2 ½ inches in
				  length.
Notification
On the date it makes the decision to make a removal that is a
				  change of placement of the child because of a violation of a code of student
				  conduct, the SAU must notify the parents of that decision, and provide the
				  parents with a procedural safeguards notice.
Change of Placement Because of Disciplinary
				  Removals
34
				  CFR §
											300.536
A removal of a child with a disability from the child's
				  current educational placement is a
change of placement
if:
1. The removal is for more than 10 school days in a row;
or
2. The child has been subjected to a series of removals that
				  constitute a pattern because:
a. The series of removals total more than 10 school days in a
				  school year;
b. The child's behavior is substantially similar to the
				  child's behavior in previous incidents that resulted in the series of
				  removals;
c. Of such additional factors as the length of each removal,
				  the total amount of time the child has been removed, and the proximity of the
				  removals to one another;
and
Whether a pattern of removals constitutes a change of
				  placement is determined on a case-by-case basis by the SAU and, if challenged,
				  is subject to review through due process and judicial proceedings.
Determination of Setting
34
				  CFR §
											300.531
The individualized education program (IEP) Team must
				  determine the interim alternative educational setting for removals that are
changes of placement
, and removals under the headings
Additional authority
and
Special circumstances
,
				  above.
Appeal
34
				  CFR §
											300.532
General
The parent of a child with a disability may file a due
				  process
hearing request
(see above) to request a due process
				  hearing if he or she disagrees with:
1. Any decision regarding placement made under these
				  discipline provisions;
or
2. The manifestation determination described above.
The SAU may file a due process
hearing
				  request
(see above) to request a due process hearing if it believes
				  that maintaining the current placement of the child is substantially likely to
				  result in injury to the child or to others.
Authority of hearing officer
A hearing officer that meets the requirements described under
				  the sub-heading
Impartial Hearing Officer
must conduct the due
				  process hearing and make a decision. The hearing officer may:
1. Return the child with a disability to the placement from
				  which the child was removed if the hearing officer determines that the removal
				  was a violation of the requirements described under the heading
Authority
				  of School Personnel
, or that the child's behavior was a manifestation of
				  the child's disability;
or
2. Order a change of placement of the child with a disability
				  to an appropriate interim alternative educational setting for not 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.
These hearing procedures may be repeated, if the SAU believes
				  that returning the child to the original placement is substantially likely to
				  result in injury to the child or to others.
Whenever a parent or a SAU files a due process
hearing request
to request such a hearing, a hearing must be
				  held that meets the requirements described under the heading
Due Process
				  Hearing Requests
except as follows:
1. The State Educational Agency must arrange for an expedited
				  due process hearing, which must occur within
20
school days of the date the hearing is
				  requested and must result in a determination within
10
school days after the hearing.
2. Unless the parents and the SAU agree in writing to waive
				  the meeting, or agree to use mediation, a resolution meeting must occur within
seven
calendar days of receiving notice
				  of the due process
hearing request
. The hearing may proceed
				  unless the matter has been resolved to the satisfaction of both parties within
15
calendar days of receipt of the due
				  process
hearing request
.
3. 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, those rules must be consistent with the
				  rules in this document regarding due process hearings.
A party may appeal the decision in an expedited due process
				  hearing in the same way as they may for decisions in other due process hearings
				  (see
Appeals
, above).
Placement during Appeals
34
				  CFR §
											300.533
When, as described above, the parent or SAU has filed a due
				  process
hearing request
related to disciplinary matters, the
				  child must (unless the parent and the State Educational Agency or SAU agree
				  otherwise) remain in the interim alternative educational setting pending the
				  decision of the hearing officer, or until the expiration of the time period of
				  removal as provided for and described under the heading
Authority of
				  School Personnel
, whichever occurs first.
Protections for Children Not Yet Eligible for Special
				  Education and Related Services
34
				  CFR §
											300.534
General
If a child has not been determined eligible for special
				  education and related services and violates a code of student conduct, but the
				  SAU had knowledge (as determined below) before the behavior that brought about
				  the disciplinary action occurred, that the child was a child with a disability,
				  then the child may assert any of the protections described in this
				  notice.
Basis of knowledge for disciplinary matters
A SAU must be deemed to have knowledge that a child is a
				  child with a disability if, before the behavior that brought about the
				  disciplinary action occurred:
1. The parent of the child expressed concern in writing that
				  the child is in need of special education and related services to supervisory
				  or administrative personnel of the appropriate educational agency, or a teacher
				  of the child;
2. The parent requested an evaluation related to eligibility
				  for special education and related services under Part B of the IDEA;
or
3. The child's teacher, or other SAU personnel expressed
				  specific concerns about a pattern of behavior demonstrated by the child
				  directly to the SAU's director of special education or to other supervisory
				  personnel of the SAU.
Exception
A SAU would not be deemed to have such knowledge if:
1. The child's parent has not allowed an evaluation of the
				  child or refused special education services;
or
2. The child has been evaluated and determined to not be a
				  child with a disability under Part B of the IDEA.
Conditions that apply if there is no basis of
				  knowledge
If prior to taking disciplinary measures against the child, a
				  SAU does not have knowledge that a child is a child with a disability, as
				  described above under the sub-headings
Basis of knowledge for
				  disciplinary matters
and
Exception
, the child may be
				  subjected to the disciplinary measures that are applied to children without
				  disabilities who engaged in comparable behaviors.
However, if a request is made for an evaluation of a child
				  during the time period in which the child is subjected to disciplinary
				  measures, the evaluation must be conducted in an expedited manner.
Until the evaluation is completed, the child remains in the
				  educational placement determined by school authorities, which can include
				  suspension or expulsion without educational services.
If the child is determined to be a child with a disability,
				  taking into consideration information from the evaluation conducted by the SAU,
				  and information provided by the parents, the SAU must provide special education
				  and related services in accordance with Part B of the IDEA, including the
				  disciplinary requirements described above.
Referral to and Action by Law Enforcement and Judicial
				  Authorities
34
				  CFR §
											300.535
Part B of the IDEA does not:
1. Prohibit an agency from reporting a crime committed by a
				  child with a disability to appropriate authorities;
or
2. Prevent State law enforcement and judicial authorities
				  from exercising their responsibilities with regard to the application of
				  Federal and State law to crimes committed by a child with a disability.
Transmittal of records
If a SAU reports a crime committed by a child with a
				  disability, the SAU:
1. Must ensure that copies of the child's special education
				  and disciplinary records are transmitted for consideration by the authorities
				  to whom the agency reports the crime;
and
2. May transmit copies of the child's special education and
				  disciplinary records only to the extent permitted by the Family Educational
				  Rights and Privacy Act (FERPA).
Requirements for Unilateral Placement by Parents of
				  Children in Private Schools at Public Expense
General
34
				  CFR §
											300.148
Part B of the IDEA does not require a SAU to pay for the cost
				  of education, including special education and related services, of your child
				  with a disability at a private school or facility if the SAU made a free
				  appropriate public education (FAPE) available to your child and you choose to
				  place the child in a private school or facility. However, the SAU where the
				  private school is located must include your child in the population whose needs
				  are addressed under the Part B provisions regarding children who have been
				  placed by their parents in a private school under
				  34 CFR §§
										300.131 through
				  300.144.
Reimbursement for private school
				  placement
If your child previously received special education and
				  related services under the authority of a SAU, and you choose to enroll your
				  child in a private preschool, elementary school, or secondary school without
				  the consent of or referral by the SAU, a court or a hearing officer may require
				  the agency to reimburse you for the cost of that enrollment if the court or
				  hearing officer finds that the agency had not made a free appropriate public
				  education (FAPE) available to your child in a timely manner prior to that
				  enrollment and that the private placement is appropriate. A hearing officer or
				  court may find your placement to be appropriate, even if the placement does not
				  meet the State standards that apply to education provided by the State
				  Educational Agency and SAUs.
Limitation on reimbursement
The cost of reimbursement described in the paragraph above
				  may be reduced or denied:
1. If: (a) At the most recent individualized education
				  program (IEP) meeting that you attended prior to your removal of your child
				  from the public school, you did not inform the IEP Team that you were rejecting
				  the placement proposed by the SAU to provide FAPE to your child, including
				  stating your concerns and your intent to enroll your child in a private school
				  at public expense; or (b) At least 10 business days (including any holidays
				  that occur on a business day) prior to your removal of your child from the
				  public school, you did not give written notice to the SAU of that
				  information;
2. If, prior to your removal of your child from the public
				  school, the SAU provided prior written notice to you, of its intent to evaluate
				  your child (including a statement of the purpose of the evaluation that was
				  appropriate and reasonable), but you did not make the child available for the
				  evaluation;
or
3. Upon a court's finding that your actions were
				  unreasonable.
However, the cost of reimbursement:
1. Must not be reduced or denied for failure to provide the
				  notice if: (a) The school prevented you from providing the notice; (b) You had
				  not received notice of your responsibility to provide the notice described
				  above; or (c) Compliance with the requirements above would likely result in
				  physical harm to your child;
and
2. May, in the discretion of the court or a hearing officer,
				  not be reduced or denied for the parents' failure to provide the required
				  notice if: (a) The parent is not literate or cannot write in English; or (b)
				  Compliance with the above requirement would likely result in serious emotional
				  harm to the child.
Surrogate parents
34
				  CFR §
											300.519
General. (a)
Each public agency must ensure that the rights of a child are
				  protected when-
(1) No parent (as defined in §300.30) can be
				  identified;
(2) The public agency, after reasonable efforts, cannot
				  locate a parent;
(3) The child is a ward of the State under the laws of that
				  State; or
(4) The child is an unaccompanied homeless youth as defined
				  in section 725(6) of the McKinney-Vento Homeless Assistance Act (42 U.S.C.
				  11434a(6)).
Duties of public agency (b)
The duties of a public agency under paragraph (a) of this
				  section include the assignment of an individual to act as a surrogate for the
				  parents. This must include a method-
(1) For determining whether a child needs a surrogate parent;
				  and
(2) For assigning a surrogate parent to the child.
Wards of the State. (c)
In the case of a child who is a ward of the State, the
				  surrogate parent alternatively may be appointed by the judge overseeing the
				  child's case, provided that the surrogate meets the requirements in paragraphs
				  (d)(2)(i) and (e) of this section.
Criteria for selection of surrogate parents
				  (d)
(1) The public agency may select a surrogate parent in any
				  way permitted under State law.
(2) Public agencies must ensure that a person selected as a
				  surrogate parent-
(i) Is not an employee of the SEA, the LEA, EIS provider or
				  any other agency that provides early intervention services, education, care, or
				  other services to the child or any family member of the child;
(ii) Has no personal or professional interest that conflicts
				  with the interest of the child the surrogate parent represents; and
(iii) Has knowledge and skills that ensure adequate
				  representation of the child.
Non-employee requirement; compensation
				  (e)
A person otherwise qualified to be a surrogate parent under
				  paragraph (d) of this section is not an employee of the agency solely because
				  he or she is paid by the agency to serve as a surrogate parent.
Unaccompanied homeless youth (f)
In the case of a child who is an unaccompanied homeless
				  youth, appropriate staff of emergency shelters, transitional shelters,
				  independent living programs, and street outreach programs may be appointed as
				  temporary surrogate parents without regard to paragraph (d)(2)(i) of this
				  section, until a surrogate parent can be appointed that meets all of the
				  requirements of paragraph (d) of this section.
Surrogate parent responsibilities (g)
The surrogate parent may represent the child in all matters
				  relating to-
(1) The identification, evaluation, and educational placement
				  of the child; and
(2) The provision of FAPE to the child.
SEA responsibility (h)
The SEA must make reasonable efforts to ensure the assignment
				  of a surrogate parent not more than 30 days after a public agency determines
				  that the child needs a surrogate parent.
Transfer of parental rights at age of
				  majority.
34
				  CFR §
											300.520
General (a)
A State may provide that, when a child with a disability
				  reaches the age of majority under State law
(age 18 in Maine)
that applies to all children (except for a child with a disability who has been
				  determined to be incompetent under State law)-
(1)(i) The public agency must provide any notice required by
				  this part to both the child and the parents; and
(ii) All rights accorded to parents under Part B of the Act
				  transfer to the child;
(2) All rights accorded to parents under Part B of the Act
				  transfer to children who are incarcerated in an adult or juvenile, State or
				  local correctional institution; and
(3) Whenever a State provides for the transfer of rights
				  under this part pursuant to paragraph (a)(1) or (a)(2) of this section, the
				  agency must notify the child and the parents of the transfer of rights.
Special rule (b)
A State must establish procedures for appointing the parent
				  of a child with a disability, or, if the parent is not available, another
				  appropriate individual, to represent the educational interests of the child
				  throughout the period of the child's eligibility under Part B of the Act if,
				  under State law, a child who has reached the age of majority, but has not been
				  determined to be incompetent, can be determined not to have the ability to
				  provide informed consent with respect to the child's educational
				  program.