Sec. 13a.05.01.15. Procedural Safeguards — State Complaints, Mediation, and Due Process

A. State Complaints.

(1) An organization or individual may file a signed written complaint with the Department regarding an alleged violation of Part B of the Act, 34 CFR 300, State law, or this chapter regarding the education of students with disabilities by a public agency.

(2) A public agency shall provide parents and other interested parties with information regarding the procedures for filing a complaint.

(3) The content of a signed written complaint shall meet the requirements specified in 34 CFR §300.153.

(4) The complaint shall allege a violation that occurred not more than 1 year prior to the date that the complaint is received by the Department, in accordance with 34 CFR §300.151.

(5) Either party to the complaint shall be given the opportunity to submit additional information and documentation about the allegations in the complaint, which will be considered in making the final decision.

(6) Following the receipt of the complaint, the Department shall conduct an investigation, consistent with guidelines and procedures established by the Department, of any complaint that meets the requirements of §A(3) of this regulation. The Department shall issue a written decision to the complainant that addresses each allegation and contains:

(a) Findings of facts and conclusions;

(b) The reasons for the final decision; and

(c) Procedures for effective implementation of the final decision including, as appropriate:

(i) Technical assistance,

(ii) Negotiations, and

(iii) Corrective actions required to achieve compliance.

(7) The Department shall issue the written decision described in §A(6) of this regulation within 60 days unless:

(a) Exceptional circumstances exist with respect to the State complaint that requires an extension of the time limit; or

(b) The complainant and the public agency agree to extend the time line in order to engage in mediation or other alternative means of dispute resolution in accordance with 34 CFR §300.152.

(8) The Department shall set aside any part of a State complaint that is being addressed in a due process hearing until the conclusion of the hearing when the Department receives a State complaint that:

(a) Is also the subject of a due process hearing; or

(b) Contains multiple issues of which one or more are part of a due process hearing.

(9) The Department shall resolve any issue in a State complaint that is not part of a due process hearing within the time line described in §A(7) of this regulation using the procedures described in §A(6) of this regulation.

(10) The Department shall inform the complainant that a due process hearing decision is binding when a complainant raises an issue in a State complaint that was the subject of a previous due process hearing decision involving the same parties.

B. Mediation.

(1) A parent of a student or the public agency may request mediation when there is a dispute about any matter related to the identification, evaluation, or educational placement, or the provision of FAPE to a student.

(2) Mediation is voluntary on the part of the parties.

(3) Mediation may not be used:

(a) To deny or delay a parent's right to a hearing on the parent's due process complaint in accordance with 34 CFR §300.506(b) and Education Article, §8-413, Annotated Code of Maryland; or

(b) To deny any other rights afforded parents under this chapter in accordance with 34 CFR §300.506.

(4) A party to the mediation has the right to be accompanied or advised by counsel.

(5) A party's request for mediation shall be made in writing to the other party and the Office of Administrative Hearings.

(6) Reasonable efforts shall be made to schedule a mediation session within 20 calendar days of the receipt of a written request and shall be held in a location that is convenient to the parties of the dispute.

(7) Mediation sessions are closed proceedings.

(8) An agreement reached by the parties to the dispute in the mediation shall be set forth in a written mediation agreement, in accordance with 34 CFR §300.506.

C. Due Process Complaint.

(1) A parent or a public agency may file a due process complaint on any matter related to the identification, evaluation, or educational placement, or the provision of FAPE to a student with a disability, in accordance with 34 CFR §300.507 and Education Article, §8-413, Annotated Code of Maryland.

(2) A party's due process complaint shall be made in writing to the other party and the Office of Administrative Hearings.

(3) The content of a due process complaint, as described in §C(2) of this regulation, shall be consistent with 34 CFR §300.508.

(4) A party may not have a hearing on a due process complaint until the party, or the attorney representing the party, files a due process complaint that meets the requirements specified in 34 CFR §300.508(b).

(5) When a party files a due process complaint, the public agency responsible for the student's education shall:

(a) Inform the parent of free or low cost legal and other relevant services available;

(b) Provide the parent with a copy of the procedural safeguards, in accordance with Regulation .11A(2)(e) of this chapter; and

(c) Inform the parent of the availability of mediation as described in §B of this regulation.

(6) The due process complaint described in §C(3) of this regulation shall be considered sufficient unless the party receiving the due process complaint notifies the hearing officer and the other party in writing, within 15 days of receipt of the due process complaint, that the receiving party believes the content of the due process complaint does not meet the requirements specified in 34 CFR §300.508.

(7) In accordance with 34 CFR §300.508, a party may only amend its due process complaint if the:

(a) Other party consents in writing to the amendment and is given the opportunity to resolve the due process complaint through a meeting held pursuant to 34 CFR §300.510; or

(b) Hearing officer grants permission at any time not later than 5 days before the due process hearing begins.

(8) If a party files an amended due process complaint, the time line for the resolution meeting and the time period to resolve the complaint described in 34 CFR §300.510 begins again with the filing of the amended due process complaint.

(9) When a parent files a due process complaint, the public agency shall respond in a manner consistent with 34 CFR 300.508(e).

(10) The time line for filing a due process complaint described in 34 CFR §300.508 does not apply if the parent was prevented from filing a due process complaint because the public agency:

(a) Made specific misrepresentations that the problem forming the basis of the due process complaint was resolved; or

(b) Withheld information from the parent that the public agency is required to provide the parent under this chapter.

(11) Resolution Session.

(a) The public agency shall convene a meeting with the parent and the relevant members of the IEP team who have specific knowledge of the facts identified in the due process complaint before being provided the opportunity for an impartial due process hearing.

(b) The resolution session shall be held in accordance with 34 CFR §300.510.

(c) The parent may seek the intervention of the hearing officer to begin the due process hearing time line if the public agency fails to:

(i) Hold a resolution session within 15 days of receiving the due process complaint; or

(ii) Participate in the resolution session.

(d) In accordance with 34 CFR §300.510(a)(3), a resolution session need not be held if:

(i) The parent and the public agency agree in writing to waive the meeting;

(ii) The parent and the public agency agree to try mediation; or

(iii) The public agency initiated the due process complaint.

(e) A due process hearing may occur if the issues in the due process complaint are not resolved to the satisfaction of either party within 30 calendar days of the receipt of the due process complaint.

(f) A due process hearing may not occur unless the parties:

(i) Attend a resolution session to resolve the issues in the due process complaint;

(ii) Agree, in writing, to waive the resolution session;

(iii) Attend mediation to resolve the issues in the due process complaint; or

(iv) Participate in some other means to resolve the issues in the due process complaint.

(g) If the parties reach a resolution, the parties shall execute a legally binding agreement in accordance with 34 CFR §300.510.

(h) A party may void the agreement described in §C(13)(f) of this regulation within the time line specified in 34 CFR §300.510(e).

(i) If a party requests mediation pursuant to §B of this regulation and a due process complaint is filed pursuant to §C of this regulation within the same written request as described in §C(2) of this regulation, the issue shall proceed directly to mediation if the noncomplaining party agrees to mediate.

(12) The Office of Administrative Hearings shall appoint a qualified impartial hearing officer to conduct a due process hearing in accordance with the Act, State Government Article, Title 10, Subtitle 2, Annotated Code of Maryland, and COMAR 28.02.01.

(13) An impartial hearing officer shall conduct a due process hearing and provide a written decision to each of the parties in accordance with 34 CFR §300.515 and Education Article, §§8-407 and 8-413, Annotated Code of Maryland.

(14) The 45 day time line for a due process hearing decision begins after one of the following events occurs:

(a) Both parties agree in writing to waive the resolution meeting described in §C(12) of this regulation;

(b) Both parties agree in writing that no agreement is possible after either the mediation or resolution meeting starts but before the end of the 30 day resolution period; or

(c) Both parties agree in writing to continue to try to resolve the disagreement at the end of the 30 day resolution period, but later, the parent or the public agency withdraws from the mediation process.

(15) An expedited due process hearing shall occur within 20 school days of the date the hearing is requested and shall result in a decision within 10 school days of the hearing if:

(a) At the time of the hearing request, the student is not enrolled and attending an approved educational program; or

(b) The due process hearing request concerns the placement or manifestation determination of a student due to a violation of the rules of conduct.

(16) If, at the time of the hearing request, the student has been removed from the student's current education program for disciplinary reasons, the due process hearing shall be expedited.

(17) A party to a due process hearing conducted pursuant to §C of this regulation has the rights specified in 34 CFR §300.512 and Education Article, §8-413, Annotated Code of Maryland.

(18) Any party to a due process hearing, conducted in accordance with 34 CFR §§300.507-300.513 or §§300.530-300.536, has the right to:

(a) Represent themselves;

(b) Be represented by an attorney, in accordance with State Government Article, §9-1607.1, Annotated Code of Maryland; and

(c) Be accompanied and advised by persons with special knowledge or training with respect to the problems of children with disabilities.

(19) Student's Status During Proceedings. Unless the parent and the public agency agree on an alternative placement, the student shall remain in the present educational placement during the pendency of an administrative or judicial proceeding in accordance with 20 U.S.C. §1415(j) and 34 CFR §300.518.

(20) A party aggrieved by the findings and decision of a due process hearing may bring a civil action in State or federal court in accordance with 20 U.S.C. §1415(i)(2), 34 CFR §300.516 and Education Article, §8-413, Annotated Code of Maryland.

(21) A public agency shall comply with the decision of the impartial hearing officer within the time line specified unless either party obtains a court order granting a stay of the decision.

(22) Attorneys' Fees. In an action or proceeding under this section, courts may award reasonable attorneys' fees to the prevailing party under the circumstances described in 20 U.S.C. §1415(i)(3) and 34 CFR §300.517.

(23) After deleting personally identifiable information from hearing decisions, the Department shall:

(a) Transmit the findings and decisions to the State Advisory Committee as described in COMAR 13A.05.02.05; and

(b) Make the findings and decisions available to the public, at a reasonable cost.

(24) The Department shall forward the records of the administrative proceedings to the court, on request, when an aggrieved party brings a civil action as described in §C(20) of this regulation.