1 CCR 301-8-6.00 - CONFIDENTIALITY OF INFORMATION AND PROCEDURAL SAFEGUARDS - DUE PROCESS PROCEDURES FOR PARENTS AND CHILDREN

6.01 Confidentiality of Information

Procedures regarding the confidentiality of information shall be consistent with 34 CFR § 300.611 through § 300.626 which address the following topics:

6.01(1) 34 CFR § 300.611 - Definitions;

6.01(2) 34 CFR § 300.612 - Notice to parents;

6.01(3) 34 CFR § 300.613 - Parent access to records;

6.01(4) 34 CFR § 300.614 - Record of access;

6.01(5) 34 CFR § 300.615 - Records on more than one child;

6.01(6) 34 CFR § 300.616 - List of types and locations of information;

6.01(7) 34 CFR § 300.617 - Fees;

6.01(8) 34 CFR § 300.618 - Amendment of records at parent's request;

6.01(9) 34 CFR § 300.619 - Opportunity for a hearing;

6.01(10) 34 CFR § 300.620 - Result of hearing;

6.01(11) 34 CFR § 300.621 - Hearing procedures;

6.01(12) 34 CFR § 300.622 - Consent;

6.01(13) 34 CFR § 300.623 - Safeguards;

6.01(14) 34 CFR § 300.624 - Destruction of information;

6.01(15) 34 CFR § 300.625 - Children's rights; and

6.01(16) 34 CFR § 300.626 - Enforcement.

6.02 Procedural Safeguards and Due Process Procedures for Parents and Children

Except as otherwise provided for in this Section 6.02, each administrative unit and state-operated program shall establish, maintain, and implement procedural safeguards that meet the requirements of 34 CFR § § 300.500 through 300.536. The topics addressed by such regulations include:

6.02(1) 34 CFR § 300.501 -Opportunity to examine records and parent participation in meetings.

6.02(2) 34 CFR § 300.502 -Independent educational evaluation.

6.02(3) 34 CFR § 300.503 -Prior written notice and content of prior written notice.

6.02(4) 34 CFR § 300.504 -Procedural Safeguards Notice.

6.02(5) 34 CFR § 300.505 -Electronic mail.

6.02(6) 34 CFR § 300.506 -Mediation.

6.02(7) [Repealed]

6.02(7.5) Due Process Complaints and Civil Actions

6.02(7.5)(a) General.

Except as is otherwise provided for in this Section 6.02(7.5), the requirements regarding resolution meetings and due process hearings shall be consistent with 34 CFR § 300.507 through § 300.515.

6.02(7.5)(a)(i) Procedures regarding the due process complaint, including the content of the due process complaint and filing requirements, shall be consistent with 34 CFR § 300.507 and § 300.508.

6.02(7.5)(a)(ii) Consistent with 34 CFR § 300.509, a parent or the administrative unit or state-operated program may use the model due process complaint form developed by the Department, or another form or other document, so long as the form or document that is used meets the due process complaint content requirements as set forth in 34 CFR § 300.508(b).

6.02(7.5)(a)(iii) Upon receipt of the first due process complaint filed by a parent in a school year, the Special Education Director of the administrative unit or state-operated program must provide the parent with a copy of the procedural safeguards notice available to parents consistent with 34 CFR § 300.504.

6.02(7.5)(a)(iv) A due process complaint can be filed against the Department.

6.02(7.5)(b) Due Process Complaint - specific filing requirements.

6.02(7.5)(b)(i) The party filing a due process complaint shall file a copy of the due process complaint with the Department at the same time that the due process complaint is filed with the opposing party to ensure that the Department timely assigns an Administrative Law Judge (ALJ) to the case.

6.02(7.5)(b)(ii) If the party filing the complaint is a parent, the party shall file the due process complaint with the Special Education Director of the affected administrative unit or state-operated program. If the due process complaint is filed against the Department, the party need only file the complaint with the Department.

6.02(7.5)(b)(iii) All timelines related to the due process complaint begin on the date that the complaint is received by both the opposing party and the Department.

6.02(7.5)(b)(iv) Regardless of whether the administrative unit/state-operated program or the parent has initiated the due process complaint, when the Special Education Director of the administrative unit or state-operated program knows that a due process complaint has been filed, it is the responsibility of the Special Education Director to:

6.02(7.5)(b)(iv)(A) By telephone, immediately notify the Department of the existence of the due process complaint; and

6.02(7.5)(b)(iv)(B) By facsimile, immediately provide a complete copy of the due process complaint to the Department accompanied by a written statement documenting the date when the due process complaint was filed. The Department will notify the public once secure electronic submission of due process complaints is available, and the parties may then submit any required documentation via this option.

6.02(7.5)(b)(v) Under no circumstance may the party receiving a due process complaint unilaterally determine that the due process complaint is insufficient or that it fails to state a claim under federal or state special education law. A notice of insufficiency may be presented to the ALJ pursuant to 34 CFR § 300.508(d).

6.02(7.5)(c) Assignment of an Administrative Law Judge.

Within two business days after the Department's receipt of a due process complaint, the Department shall notify the Office of Administrative Courts (OAC) in order to have an ALJ assigned to the complaint.

6.02(7.5)(d) Timelines applicable to resolution meetings and mediation.

6.02(7.5)(d)(i) Resolution Meeting

6.02(7.5)(d)(i)(A) Within 15 days of receiving notice of the parent's due process complaint, and prior to the commencement of a due process hearing, the administrative unit or state-operated program must convene a resolution meeting with the parent and the relevant member or members of the IEP Team who have specific knowledge of the facts identified in the due process complaint that -

6.02(7.5)(d)(i)(A)(I) Includes a representative of the administrative unit or state-operated program who has decision-making authority on behalf of that agency; and

6.02(7.5)(d)(i)(A)(II) May not include an attorney of the administrative unit or state-operated program unless the parent is accompanied by an attorney.

6.02(7.5)(d)(i)(B) The purpose of the resolution meeting is for the parent of the child to discuss the due process complaint, and the facts that form the basis of the due process complaint, so that the administrative unit or state-operated program has the opportunity to resolve the dispute that is the basis for the due process complaint.

6.02(7.5)(d)(i)(C) The resolution meeting described need not be held if -

6.02(7.5)(d)(i)(C)(I) The parent and the administrative unit or state-operated program agree in writing to waive the resolution meeting; or

6.02(7.5)(d)(i)(C)(II) The parent and the administrative unit or state-operated program agree to use the mediation process described in 34 CFR § 300.506 and Section 6.02(6) of these Rules.

6.02(7.5)(d)(i)(D) The parent and the administrative unit or state-operated program determine the relevant members of the IEP Team to attend the resolution meeting.

6.02(7.5)(d)(ii) Resolution Period

6.02(7.5)(d)(ii)(A) The ALJ has no authority to extend the 30-day resolution period.

6.02(7.5)(d)(ii)(B) The parties may extend the resolution period but only under the circumstances described in Section 6.02(7.5)(d)(iii)(C).

6.02(7.5)(d)(ii)(C) If the administrative unit or state-operated program has not resolved the due process complaint to the satisfaction of the parent within 30 days of the receipt of the due process complaint, the due process hearing may occur.

6.02(7.5)(d)(ii)(D) Except as provided in Section 6.02(7.5)(d)(iii), below, the timeline for issuing a final due process decision begins at the expiration of the 30-day resolution period

6.02(7.5)(d)(ii)(E) Except where the parties have jointly agreed to waive the resolution process or to use mediation, the failure of the parent filing a due process complaint to participate in the resolution meeting will delay the timelines for the resolution process and due process hearing until the meeting is held.

6.02(7.5)(d)(ii)(F) If the administrative unit or state-operated program is unable to obtain the participation of the parent in the resolution meeting after reasonable efforts have been made and documented (using the procedures in 34 CFR § 300.322(d)(1) through (3)), the administrative unit or state-operated program may, at the conclusion of the 30-day resolution period, request that the ALJ dismiss the parent's due process complaint.

6.02(7.5)(d)(ii)(G) If the administrative unit or state-operated program fails to hold the resolution meeting within 15 days of receiving notice of a parent's due process complaint or fails to participate in the resolution meeting, the parent may seek the intervention of the ALJ to begin the due process hearing 45-day timeline.

6.02(7.5)(d)(iii) Adjustments to 30-day resolution period. The 45-day timeline for the due process hearing starts the day after one of the following events:

6.02(7.5)(d)(iii)(A) Both parties agree in writing to waive the resolution meeting;

6.02(7.5)(d)(iii)(B) After either the mediation or resolution meeting starts but before the end of the 30-day period, the parties agree in writing that no agreement is possible; or

6.02(7.5)(d)(iii)(C) When a party withdraws from mediation after the parties previously agreed, at the end of the 30-day resolution period, to continue the mediation as described below:

6.02(7.5)(d)(iii)(C)(I) The parties' agreement to continue the mediation shall be in writing and signed by each party; and

6.02(7.5)(d)(iii)(C)(II) Immediately after the parties' execution of the agreement to continue mediation, the parties shall jointly and simultaneously file the written agreement to continue mediation with the ALJ and the Department.

6.02(7.5)(e) Timelines applicable to due process hearings and convenience of hearings.

6.02(7.5)(e)(i) The Department must ensure that not later than 45 days after the expiration of the 30 day resolution period, or the adjusted time periods described in Section 6.02(7.5)(d)(iii), above -

6.02(7.5)(e)(i)(A) A final decision is reached in the hearing; and

6.02(7.5)(e)(i)(B) A copy of the decision is mailed to each of the parties.

6.02(7.5)(e)(ii) At the request of either party, the ALJ may grant specific extensions of time beyond the 45 day due process hearing period. Any such extension of time shall be accomplished in accordance with the requirements for time extensions set forth in Section 6.02(7.5)(f)(v), below.

6.02(7.5)(e)(iii) Each hearing must be conducted at a time and place that is reasonably convenient to the parents and child involved.

6.02(7.5)(f) Conduct of due process hearings

The procedures regarding the conduct of due process hearings shall be consistent with the requirements established by 34 CFR § 300.511. The topics addressed in 34 CFR § 300.511 include:

6.02(7.5)(f)(i) The qualifications of ALJs.

At a minimum, an ALJ must meet the qualifications established by 34 CFR § 300.511(c). The Department, at its discretion, may require additional qualifications.

6.02(7.5)(f)(ii) The subject matter of due process hearings.

6.02(7.5)(f)(iii) The timeline and exceptions to the timeline for requesting a hearing.

6.02(7.5)(f)(iv) Specific procedures.

The ALJ shall:

6.02(7.5)(f)(iv)(A) Consistent with the timelines in Section 6.02(7.5)(e), above, establish the procedures and timelines to be followed during the hearing;

6.02(7.5)(f)(iv)(B) Schedule the time and place for the hearing;

6.02(7.5)(f)(iv)(C) Schedule a prehearing conference at which the issues will be identified and the specific requests of the parties determined;

6.02(7.5)(f)(iv)(D) At the request of either party, issue subpoenas to compel attendance of witnesses at the hearing;

6.02(7.5)(f)(iv)(E) Ensure that a written or electronic verbatim account of the hearing is kept; and

6.02(7.5)(f)(iv)(F) Provide to the Department a copy of any order or decision issued.

6.02(7.5)(f)(v) Extension of timelines

6.02(7.5)(f)(v)(A) The ALJ shall not have authority to extend the 45 day due process decision timeline until after the resolution period described in section 6.02(7.5)(d)(ii), above, has occurred.

6.02(7.5)(f)(v)(B) Any request by a party to extend a due process hearing decision timeline shall be made within a reasonable period of time prior to the expiration of the 45 day period or previously extended time period;

6.02(7.5)(f)(v)(C) The ALJ's decision regarding the requested extension of a due process decision timeline shall be issued on or before the date of the expiration of the existing timeline and documented in a written order; and

6.02(7.5)(f)(v)(D) The ALJ shall provide a copy of such written order to the parties and to the Department.

6.02(7.5)(f)(v)(E) Exception. In the case of an expedited due process hearing requested as a result of a disciplinary change of placement pursuant to 34 CFR § 300.532(c), the specific timelines established in Section 6.02(7.5)(i)(ii), below, shall apply.

6.02(7.5)(g) Hearing Rights

Hearing rights accorded to parties shall be consistent with 34 CFR § 300.512.

6.02(7.5)(h) Hearing Decisions

6.02(7.5)(h)(i) General. Due process hearing decisions shall be consistent with the requirements established by 34 CFR § 300.513. The topics addressed by 34 CFR § 300.513 include:

6.02(7.5)(h)(i)(A) The decision of the ALJ on the provision of FAPE;

6.02(7.5)(h)(i)(B) Separate request for a due process hearing; and

6.02(7.5)(h)(i)(C) Transmittal of the findings and decision to the Colorado Special Education Advisory Committee and to the general public.

6.02(7.5)(h)(ii) Specific requirements for due process decisions.

6.02(7.5)(h)(ii)(A) The ALJ shall render, in writing, all findings of fact and the decision based upon the evidence.

6.02(7.5)(h)(ii)(B) The ALJ shall mail the decision by certified mail to the parties and the Department within the timelines specified by Section 6.02(7.5)(e) or, in the case of an expedited hearing, within the timelines specified by 6.02(7.5)(i)(ii).

6.02(7.5)(h)(ii)(C) The ALJ shall include within the decision notification that, any party aggrieved by the findings and decision, has the right to bring a civil action consistent with the requirements as set forth in 34 CFR § 300.516.

6.02(7.5)(h)(ii)(D) Except for the caption of the case, the decision shall be written such that it does not disclose personally identifiable information of the child or the parent(s).

6.02(7.5)(h)(ii)(E) The record of the hearing shall include all findings of fact, evidence admitted during the hearing, the decision, and the recording of the hearing, if available. The record shall be forwarded to the Department within 100 days after the conclusion of all due process proceedings if no civil action is brought.

6.02(7.5)(i) Expedited Due Process Hearings

6.02(7.5)(i)(i) General.

Consistent with 34 CFR § 300.532(a), the parent of a child with a disability who disagrees with any decision regarding a disciplinary placement under 34 CFR § § 300.530 and 300.531, or the manifestation determination under §300.530(e), or an administrative unit or state-operated program that believes that maintaining the current placement of the child is substantially likely to result in injury to the child or others, may appeal the decision by requesting a hearing, and must have the opportunity for an expedited hearing. The requirements for expedited due process hearings, including timelines, shall be in accordance with 34 CFR § 300.532.

6.02(7.5)(i)(ii) Specific Timelines

6.02(7.5)(i)(ii)(A) The Department is responsible for arranging the expedited due process hearing, which must occur within 20 school days of the date the complaint requesting the hearing is filed. The ALJ must make a determination within 10 school days after the hearing.

6.02(7.5)(i)(ii)(B) Unless the parents and administrative unit or state-operated program agree in writing to waive the resolution meeting described below, or agree to use the mediation process described in 34 CFR § 300.506 -

6.02(7.5)(i)(ii)(B)(I) The resolution meeting must occur within seven days of receiving notice of the due process complaint; and

6.02(7.5)(i)(ii)(B)(II) The due process hearing may proceed unless the matter has been resolved to the satisfaction of both parties within 15 days of the receipt of the due process complaint.

6.02(7.5)(i)(ii)(B)(III) The ALJ has no authority to extend any of the timelines set forth in this section 6.02(7.5)(i)(ii).

6.02(7.5)(i)(ii)(B)(IV) The parties may not agree to mutually extend the resolution period to resolve an expedited due process complaint.

6.02(7.5)(i)(iii) The requirements and procedures contained in this Section 6.02(7.5)(a) through 6.02(7.5)(h) shall apply to expedited due process hearings to the extent that such requirements and procedures are not in conflict with 34 CFR § 300.532.

6.02(7.5)(j) Civil Action.

Any party aggrieved by the findings and decision of the administrative law judge has the right to bring a civil action consistent with the requirements set forth in 34 CFR § 300.516.

6.02(7.5)(k) Attorneys' fees.

Reasonable attorneys' fees may be awarded to a prevailing party by a court of competent jurisdiction, as described in 34 CFR § 300.516, and consistent with the requirements established by 34 CFR § 300.517.

6.02(7.5)(l) Child's status during proceedings

The child's status during the pendency of any administrative or judicial proceeding shall be governed by the requirements established by 34 CFR § 300.518 unless the due process complaint involves the disciplinary placement of the child, in which case the provisions of 34 CFR § 300.533 apply.

6.02(8) 34 CFR § 300.519 - Educational Surrogate Parents

6.02(8)(a) General.

The administrative unit of attendance and each state-operated program must ensure that the rights of a child are protected when -

6.02(8)(a)(i) No parent (as defined in Section 2.33 of these Rules) can be identified;

6.02(8)(a)(ii) The administrative unit of attendance or the state-operated program, after reasonable efforts, cannot locate a parent;

6.02(8)(a)(iii) The child is a ward of the State; or

6.02(8)(a)(iv) The child is a homeless child as defined in Section 22-1-102.5, C.R.S.

6.02(8)(b) Educational Surrogate Parent Registry

The Department shall maintain a registry of each child with a disability determined to be in need of an educational surrogate parent and the educational surrogate parent assigned to the child. The purpose of the registry is to track those students for whom an educational surrogate parent has been assigned through the procedures established in this Section 6.02(8).

6.02(8)(c) Duties of the administrative unit of attendance or state-operated program.

The duties of an administrative unit of attendance or a state-operated program under Section 6.02(8) include the assignment of an individual to act as an educational surrogate parent for the child. This must include a method-

6.02(8)(c)(i) For determining whether a child needs an educational surrogate parent; and

6.02(8)(c)(ii) For assigning an educational surrogate parent to the child.

6.02(8)(d) Children placed in the legal custody of the Colorado Department of Human Services.

In the case of a child who is placed in the legal custody of the Colorado Department of Human Services, the educational surrogate parent alternatively may be appointed by the court overseeing the child's case, provided that the educational surrogate parent meets the requirements in Section 6.02(8)(e)(iii).

6.02(8)(e) Criteria for selection of educational surrogate parents.

6.02(8)(e)(i) The Special Education Director of the administrative unit of attendance or state-operated program shall assign educational surrogate parents.

6.02(8)(e)(ii) After determining that a child needs an educational surrogate parent but before the educational surrogate parent is assigned, the Special Education Director must contact the Department to verify that there is no existing educational surrogate assignment for the child.

6.02(8)(e)(iii) The Special Education Director must ensure that a person selected and assigned as an educational surrogate parent -

6.02(8)(e)(iii)(A) Is not an employee of the Department, the administrative unit of residence, the administrative unit of attendance (if different from the administrative unit of residence), or state-operated program, or any other public agency that is involved in the education or care of the child;

6.02(8)(e)(iii)(B) Has no personal or professional interest that conflicts with the interest of the child whom the educational surrogate parent represents; and

6.02(8)(e)(iii)(C) Has knowledge and skills that ensure adequate representation of the child.

6.02(8)(f) Requirement for written certification

The Special Education Director shall document in writing, on a form approved by the Department of Education, each assignment of an educational surrogate parent, including a written certification that the requirements of Section 6.02(8)(e)(iii) have been met. The Special Education Director shall provide a copy of the written assignment to the Department within three (3) business days of the date of the assignment.

6.02(8)(g) Non-employee requirement; compensation.

A person otherwise qualified to be an educational surrogate parent under Section 6.02(8)(e)(iii) is not an employee of the administrative unit of attendance or state-operated program solely because he or she is paid by such administrative unit or state-operated program to serve as an educational surrogate parent.

6.02(8)(h) Homeless children.

In the case of a child who is an unaccompanied homeless child, appropriate staff of emergency shelters, transitional shelters, independent living programs, and street outreach programs may be appointed as temporary educational surrogate parents without regard to Section 6.02(8)(e)(iii), above, until an educational surrogate parent can be appointed that meets all of the requirements of Section 6.02(8)(e)(iii).

6.02(8)(i) Educational surrogate parent responsibilities.

The educational surrogate parent may represent the child in all matters relating to -

6.02(8)(i)(i) The identification, evaluation, and educational placement of the child; and

6.02(8)(i)(ii) The provision of FAPE to the child.

6.02(8)(j) Responsibility of the Department.

The Department must make reasonable efforts to ensure the assignment of an educational surrogate parent not more than 30 days after the responsible administrative unit or state-operated program determines that the child needs an educational surrogate parent.

6.02(8)(k) Approved Facilities Schools.

Notwithstanding Section 6.02(8)(c), above, if it is determined that a child placed in an approved facility school needs an educational surrogate parent, the child's administrative unit of residence or state-operated program is responsible for locating and assigning the educational surrogate parent. If the approved facility school is not located within the boundaries of the administrative unit of residence, the administrative unit in which the approved facility school is located shall cooperate with the administrative unit of residence in locating an educational surrogate parent for the child.

6.02(9) 34 CFR § 300.520 - Transfer of parental rights at age of majority. The age of majority for educational purposes in the State of Colorado is age 21;

6.02(10) 34 CFR § 300.530 through § 300.537 - Student discipline procedures.

Student discipline procedures and protections for children with disabilities shall be consistent with the requirements set forth in 34 CFR § 300.530 through § 300.537. The topics addressed by those requirements include:

6.02(10)(a) Authority of school personnel - 34 CFR § 300.530;

6.02(10)(b) Removals for not more than ten (10) consecutive school days and patterns of removal - 34 CFR § 300.530(b)(1);

6.02(10)(c) Removals cumulating to more than ten (10) school days in a school year - 34 CFR § 300.530(b)(2);

6.02(10)(d) Removals exceeding 10 consecutive schools days - 34 CFR § 300.530(c);

6.02(10)(e) Required provision of services for students suspended or expelled for more than ten cumulative school days in a school year - 34 CFR § 300.530(b)(2) and 34 CFR § 300.530(d);

6.02(10)(f) Manifestation determinations - 34 CFR § 300.530(e) and 34 CFR § 300.530(f);

6.02(10)(g) Special circumstances - 34 CFR § 300.530(g);

6.02(10)(h) Requirements regarding notification to parents - 34 CFR § 300.530(h);

6.02(10)(i) Applicable definitions - 34 CFR § 300.530(i);

6.02(10)(j) Determination of setting - 34 CFR § 300.531;

6.02(10)(k) Appeal (including expedited due process hearings) - 34 CFR § 300.532;

6.02(10)(l) Placement during appeals - 34 CFR § 300.533;

6.02(10)(m) Protections for children not determined eligible for special education and related services - 34 CFR § 300.534;

6.02(10)(n) Referral to and action by law enforcement and judicial authorities - 34 CFR § 300.535; and

6.02(10)(o) Change of placement because of disciplinary removals - 34 CFR § 300.536.

Notes

1 CCR 301-8-6.00

38 CR 09, May 10, 2015, effective 6/1/2015 39 CR 03, February 10, 2016, effective 3/1/2016 45 CR 09, May 10, 2022, effective 6/30/2022 46 CR 11, June 10, 2023, effective 6/30/2023 48 CR 08, April 25, 2025, effective 5/15/2025