Communication of Procedural Safeguards (MSER, Chapter 101, Section
12.11, p. 68-79)
A procedural safeguard statement, in substantially the following
form, shall be given by the school administrative unit to the
parent and adult student upon initial referral for special education
evaluation, upon each notice of a Pupil Evaluation Team (PET)
meeting, upon request for parental consent for reevaluation of
a student with a disability and upon receipt of a request for
a due process hearing.
A. 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 provision of a free appropriate public
education.
B. PRIOR NOTICE TO PARENTS
Your school district must provide you with a written notice
a reasonable time before the school proposes or refuses to initiate
or change the identification, evaluation, or educational placement
of your child or the provision of a free appropriate public education
to the child.
If the school is also required to have your written permission
(consent) for an action, the school may provide this notice to
you at the same time it requests your consent.
The notice must include:
- A description of the action proposed or refused by the school,
an explanation of why the school proposes or refuses to take
the action, and a description of any options the school considered
and the reasons why those options were rejected;
- A description of each evaluation procedure, test, record,
or report the school uses as a basis for the proposal or refusal;
- A description of any other factors which are relevant to
the school's proposal or refusal; and
- A statement that you have the rights contained within this
notice and where you may obtain a copy of this notice.
The notice must be written in language understandable to the
general public. The notice must be provided in your native language
or other mode of communication, unless it is clearly not feasible
to do so. If your native language or other mode of communication
is not a written language, your school must take steps to insure
that the notice is translated orally or by other means to you
in your native language or other mode of communication, that you
understand the content of the notice, and that there is written
evidence that these requirements have been met.
C. PARENT CONSENT
Your school must obtain your written permission (consent) before
conducting an initial evaluation, before an initial placement
of your child in a program providing special education and supportive
services or before conducting any new test as part of a reevaluation
of your child. Except for initial evaluation, reevaluation and
initial placement, your permission may not be required as a condition
for providing any special education or supportive services to
you or your child. If you refuse to provide your permission (consent)
for an initial evaluation or initial placement of your child in
a program providing special education and supportive services,
your school may use the due process hearing or mediation procedures
to determine whether or not your child may be evaluated or initially
provided special education and supportive services without your
consent. If the hearing officer orders the school to evaluate
or place your child or if you and the school reach a mediated
agreement, the school may evaluate your child or provide special
education and supportive services to your child.
Generally, either parent may grant consent. In the case of divorced
parents with joint custody either parent may grant consent. However,
in the event that one parent grants consent and the other parent
refuses, then the school is obligated to initiate the action for
which consent has been granted.
D. EVALUATION/REEVALUATION
The Pupil Evaluation Team (PET), of which you are a member,
may decide that no additional information is needed to determine
your child's initial or continuing eligibility for special education.
If you disagree with the team's decision, you may request that
the school conduct an assessment of your child. If your child
has a disability and has been receiving special education services,
the school district must evaluate your child before determining
that your child no longer requires special education services.
E. PARENTAL CONSENT FOR REEVALUATION
The school must obtain your written consent before conducting
a reevaluation of your child. However, if the school can show
that it tried to get your consent for the reevaluation of your
child and you did not respond then the school may reevaluate your
child without your consent. Your consent is not required to review
existing evaluation information.
F. INDEPENDENT EDUCATIONAL EVALUATION
An independent evaluation is an evaluation conducted by a qualified
person who is not an employee of the school. You have the right
to an independent educational evaluation at no cost to you if
you disagree with an evaluation obtained by your school. However,
your school may initiate a due process hearing to show that its
evaluation is appropriate. If the hearing decision is that the
school's evaluation is appropriate, you still have the right to
an independent educational evaluation, but at your expense. If
you obtain an independent educational evaluation at your expense,
the results of the evaluation must be considered by your school
in any decision made with respect to the provision of a free appropriate
public education to your child, and may be presented as evidence
at a due process hearing regarding your child.
If a hearing officer requests an independent educational evaluation
as part of a hearing, the cost of the evaluation must be at public
expense.
Your school shall provide you, when you request it, information
about where an independent educational evaluation may be obtained.
Whenever an independent 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 which the school uses when it
initiates an evaluation. A school may not impose any additional
criteria regarding an independent educational evaluation.
G. SUPERINTENDENT COMPLAINTS
You have the right to file a written complaint with the superintendent
of the administrative unit responsible for the education of your
son or daughter if you have reason to believe that the administrative
unit is not in compliance with these special education regulations.
The superintendent, or a designee, shall then appoint a person
to investigate your complaint and to recommend to the superintendent,
within 30 days of the receipt of the written complaint, any corrective
action necessary to resolve your complaint.
H. DEPARTMENT OF EDUCATION COMPLAINTS
You have the right to file a signed, written complaint with
the Commissioner of the Department of Education if you have reason
to believe that the administrative unit responsible for the education
of your son or daughter is not in compliance with these special
education regulations or if you disagree with the results of a
superintendent's complaint investigation.
The Department shall initiate and complete, within 60 days of
the receipt of the written complaint, an investigation and a determination
of whether or not your school has complied with these special
education regulations.
If your school is determined to be in noncompliance, the Department
will develop a corrective action plan to resolve the complaint.
I. MEDIATION
You or the school have the right to request the Department of
Education to provide mediation services if you and the school
are unable to agree upon the identification, evaluation, educational
program, placement or the provision of a free, appropriate public
education of your son or daughter.
The mediation must be voluntary on the part of both you and
the school district. Mediation may not be used to delay or deny
your right to a due process hearing. The mediation must be conducted
by a qualified and impartial mediator at no cost to you or the
school district. The mediation will be held in a timely manner
and at a location that is convenient to you and the school. Any
agreement reached in mediation will be put into writing and becomes
a part of your child's IEP. If the school fails to implement the
mediation agreement you may initiate a hearing or file a complaint
against the school. Mediation discussions are confidential and
may not be used as evidence in a hearing. You and the school may
be required to sign a confidentiality pledge prior to the start
of the mediation.
J. IMPARTIAL DUE PROCESS HEARING
You or your school may initiate a hearing regarding the school's
proposal or refusal to initiate or change the identification,
evaluation, or educational placement of your child or the provision
of a free appropriate public education to your child.
You must send your written request for a due process hearing
to the Maine Department of Education. The request must contain
the name of the child, the child's residence, the school the child
is attending, a description of the problem and facts relating
to the problem, and a proposed solution to the problem.
A form is available from the Maine Department of Education,
your local school, or the Special Needs Parent Information Network
(SPIN). Failure to provide the required information may result
in a reduction of the award of any attorney fees if you win your
case.
The hearing will be conducted by an impartial hearing officer
appointed by the Department and contracted to provide hearing
officer services.
The Department 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 your school initiate a due process
hearing.
A hearing may not be conducted by a person who is an employee
of a public agency which is involved in the education or care
of your child, or by any person having a personal or professional
interest which would conflict with his or her objectivity in the
hearing. (A person who otherwise qualifies to conduct a hearing
is not an employee of the Department solely because he or she
is paid by the Department of Education to serve as a hearing officer.)
The Department maintains a list of the persons who serve as
hearing officers. The list includes a statement of the qualifications
of each of those persons.
The Department shall ensure that a final hearing decision is
reached and mailed to the parents and the school within 45 days
after the receipt of a request for a hearing, unless the hearing
officer grants a specific extension at the request of either party.
The decision made in a due process hearing is final, unless
you or the school brings a civil action under the procedures described
below.
K. DUE PROCESS HEARING RIGHTS
Any party to a hearing has the right to:
- Be accompanied and advised by counsel and by individuals
with special knowledge or training with respect to the problems
of students with disabilities;
- Present evidence and confront, cross-examine, and
compel the attendance of witnesses;
- 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;
- Obtain a written or electronic verbatim record of
the hearing; and
- Obtain written findings of fact and decisions. (After
deleting any personally identifiable information, the Department
shall transmit those findings and decisions to the State advisory
panel and make them available to the public.)
As the parent, you have the following additional rights:
- You may have your child present at the hearing;
- You may open the hearing to the public; and
- You may obtain the findings of fact, decision and
record of the hearing at no cost to you.
- Each hearing must be conducted at a time and place
which is reasonably convenient to you and your child.
L. CIVIL ACTION
Any party aggrieved by the findings and decision made in a hearing
has the right to appeal the decision in State or Federal Court.
M. CHILD'S STATUS DURING DUE PROCESS PROCEEDINGS
During the pendency of any complaint investigation, mediation,
or due process hearing or appeal of a hearing, unless you and
your school agree otherwise, your child must remain in his or
her present educational placement and program.
If the hearing involves an application for initial admission
to public school, your child, with your consent, must be placed
in the public school program until the completion of all the proceedings.
N. AWARD OF ATTORNEYS FEES
You may request either a state or federal court to award reasonable
attorney fees and costs if you win your hearing either through
a settlement or a hearing decision.
Attorney fees may not be awarded relating to any meeting of
the Pupil Evaluation Team unless the meeting occurs as a result
of an order of a hearing officer or a judge. Attorney fees may
not be awarded for a mediation.
The award of attorney fees may be reduced if you unreasonably
delayed the settlement or decision in the case, the time spent
and services furnished were excessive or the fees charged by your
attorney exceed reasonable rates.
O. SURROGATE PARENTS
Each school shall ensure that an individual is assigned to act
as a surrogate for the parents of a child when no parent can be
identified, the school, after reasonable efforts, cannot discover
the whereabouts of a parent, or the child is a ward of the State.
The Department must have a method for determining if a child needs
a surrogate parent, and for assigning a surrogate parent to the
child.
The Department may select a surrogate parent in any way permitted
under State law, but must ensure that a person selected as a surrogate
is not an employee of an agency which is involved in the education
or care of the child, has no interest that conflicts with the
interest of the child he or she represents, and has knowledge
and skills that ensure adequate representation of the child. (An
individual is not disqualified as an agency employee from appointment
as a surrogate solely because he or she is paid by the Department
to serve as a surrogate parent.)
The surrogate parent may represent the child in all matters
relating to the identification, evaluation, and educational placement
of the child, and the provision of a free appropriate public education
to the child.
P. TRANSFER OF RIGHTS
In general, when your child reaches age 18 (or has been emancipated),
these procedural safeguards will transfer to your child. A court
may appoint a legal guardian for your child if your child has
been determined, consistent with state procedures, to be unable
to provide informed consent.
At least one year before your child turns 18, the school district
will inform your child of the rights, if any, that will be transferred
to your child. The school will inform both you and your child
when these rights are transferred to your child.
As the parent of an adult child with a disability, both you
and your child will continue to receive notice of PET meetings,
prior written notice and the notice of procedural safeguards.
Q. DISCIPLINARY PROCEDURES
If your child has violated the school's disciplinary standards,
the school may remove your child from his or her current educational
setting for not more than 10 consecutive school days or 10 days
cumulatively within a school year, to the extent removal would
be applied to students without disabilities.
After a child with a disability has been removed from his or
her current placement for more than 10 school days in the same
school year, during any subsequent days of removal the public
agency must provide services to the extent necessary to enable
the child to appropriately progress in the general curriculum
and appropriately advance toward achieving the goals set out in
the child's IEP.
The school district may place your child in an interim alternative
education setting for up to 45 days if your child possesses or
uses illegal drugs or carries a weapon to school or a school function.
If the school district wants to change your child's placement
for more than 10 school days, you have the right to participate
in the manifestation determination meeting. This meeting determines
whether the behavior was or was not related to your child's disability.
If the determination is made that the behavior is related to
your child's disability then your child may not be suspended,
expelled or removed from his or her current educational placement
for more than ten school days (except in the case of weapons or
drugs) unless the Pupil Evaluation Team develops a new IEP and
decides upon a new placement. If there is no relationship between
your child's disability and the behavior, then your child may
be disciplined as any other child. During any removal in excess
of 10 days, the school district shall provide your child with
special education and supportive services to the extent necessary
to enable your child to appropriately progress in the general
curriculum and appropriately advance toward achieving the goals
set out in your child's IEP.
If you disagree with the manifestation determination, the decision
to place your child in an interim alternative education setting
or any other disciplinary placement, you have the right to request
a hearing or an expedited due process hearing.
R. CHILD'S PLACEMENT DURING THE PENDENCY OF DUE PROCESS PROCEDURES
- DISCIPLINARY ACTION
Generally, if you initiate a due process hearing, your child
will remain in his or her current educational placement until
a final decision has been reached or you and the school agree
upon another placement. However, in cases where your child has
been placed in an interim alternative education setting because
of a disciplinary action, your child may remain in the interim
alternative education setting for a period not to exceed 10 days
(or 45 days if a weapon or drug related offence). Thereafter,
your child will return to the previously agreed upon educational
placement unless either a hearing officer orders another placement
or you and the school agree to another placement.
S. PRIVATE SCHOOL PLACEMENTS BY PARENTS
The school district may be required to reimburse the costs of
a private school placement if you can prove at a due process hearing
that the school district has failed or is unable to provide your
child with a free appropriate public education and that the private
placement is appropriate.
If you plan to place your child with a disability in a private
school and seek reimbursement from the school district, you must
inform the school district at a Pupil Evaluation Team meeting
or provide the school district with written notice at least 10
business days (excluding weekends) prior to the enrollment of
your child in the private school. You must inform the school about
your disagreement with the school's IEP, the placement proposed
by the school, your intention to enroll your child in a private
school and your intention to request reimbursement.
If the school has provided you with a written notice that the
school intends to evaluate your child before you remove your child
from the public school, you must make your child available to
the school for evaluation.
A court or hearing officer could decide to reduce or deny reimbursement
for your private school placement if you fail to inform the school
of your intention to make a private school placement at public
expense, fail to make your child available for evaluation, or
take other unreasonable actions.
T. ACCESS TO RECORDS
Your school must permit you to inspect and review all education
records relating to your child with respect to the identification,
evaluation, and educational placement of your child, and the provision
of a free appropriate public education to your child, which are
collected, maintained, or used by the school. The school must
comply with a request without unnecessary delay and before any
meeting regarding an individualized education program or hearing
relating to the identification, evaluation, placement or provision
of appropriate services to your child, and in no case more than
45 days after the request has been made.
Your right to inspect and review education records under this
section includes:
- The right to a response from the participating school
to reasonable requests for explanations and interpretations
of the records;
- Your right to have your representative inspect and
review the records; and
- Your right to request that the school provide copies
of the records containing the information if failure to provide
those copies would effectively prevent you from exercising your
right to inspect and review the records.
The school may presume that you have authority to inspect and
review records relating to your child unless the school has been
advised that you do not have the authority under applicable Maine
law governing such matters as guardianship, separation, and divorce.
The school must keep a record of who (other than authorized
employees of the school and the parent) has had access to your
child's records, including the person's name, date, and purpose
for the access.
If any education record includes information on more than one
child, you have the right to inspect and review only the information
relating to your child or to be informed of that specific information.
The school must provide you on request a list of the types and
locations of education records collected, maintained, or used
by the school.
U. FEES FOR SEARCHING, RETRIEVING, AND COPYING RECORDS
The school may not charge a fee to search for or to retrieve
information under this section, but may charge you a fee for copies
of records which are made for you under this rule if the fee does
not effectively prevent you from exercising your right to inspect
and review those records.
V. RECORD OF ACCESS
The school must keep a record of parties obtaining access to
education records collected, maintained, or used under these rules
(except access by parents and authorized employees of the participating
school), including the name of the party, the date access was
given, and the purpose for which the party is authorized to use
the records.
W. AMENDMENT OF RECORDS AT PARENT'S REQUEST
If you believe that information in education records collected,
maintained, or used under these rules is inaccurate or misleading
or violates the privacy or other rights of your child, you may
request the school that maintains the information to amend the
information.
The school must decide whether or not to amend the information
in accordance with your request within a reasonable period of
time of receipt of the request. If the school decides to refuse
to amend the information in accordance with the request, it must
inform you of the refusal and of your right to a hearing as set
forth below.
The school shall, on request, provide an opportunity for a hearing
to challenge information in education records to insure that it
is not inaccurate, misleading, or otherwise in violation of the
privacy or other rights of your child.
If, as a result of the hearing, the school decides that the
information is inaccurate, misleading, or otherwise in violation
of the privacy or other rights of your child, it must amend the
information accordingly and so inform you in writing.
If, as a result of the hearing, the school 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 the right to place in the records it maintains on your child
a statement commenting on the information or setting forth any
reasons why you disagree with the decision of the school. Any
explanation placed in your child's records under this section
must be maintained by the school as part of the records of your
child as long as the record or contested portion is maintained
by the school; if the records of your child or the contested portion
is disclosed by the school to any party, the explanation must
also be disclosed to the party.
X. DEFINITIONS
"Consent” means that:
a. You have been fully informed of all information relevant
to the activity for which consent is sought, in your native language
or other mode of communication;
b. You understand and agree in writing to the carrying out of
the activity for which your consent is sought, and the consent
describes that activity and lists the records (if any) that will
be released and to whom; and you understand that the granting
of consent is voluntary on your part and may be revoked at any
time.
"Evaluation” means procedures used in accordance
with these rules to determine whether a child has a disability
and the nature and extent of the special education and supportive
services that the child needs. The term means procedures used
selectively with an individual child and does not include basic
tests administered to or procedures used with all students in
a school, grade, or class.
"Independent educational evaluation” means an evaluation
conducted by a qualified examiner who is not employed by the school
responsible for the education of the child in question. "Independent
educational evaluation at public expense” means that the
school either pays for the full cost of the evaluation or insures
that the evaluation is otherwise provided at no cost to you."
