§8-60-62 - Due process complaint.

§8-60-62 Due process complaint. (a) General. (1) The department shall have procedures that require either party, or the attorney representing a party, to provide to the other party a due process complaint (which shall remain confidential).

(2) The party filing a due process complaint shall submit a copy of the due process complaint to the department.

(b) Content of complaint. The due process complaint required in paragraph (1) shall include:

(1) The name of the student;

(2) The address of the residence of the student;

(3) The name of the school the student is attending;

(4) In the case of a homeless student or youth (within the meaning of section 725(2) of the McKinney-Vento Homeless Assistance Act (42 U.S.C. 11434a(2)), available contact information for the student, and the name of the school the student is attending;

(5) A description of the nature of the problem of the student relating to the proposed or refused initiation or change, including facts relating to the problem; and

(6) A proposed resolution of the problem to the extent known and available to the party at the time.

(c) Notice required before a hearing on a due process complaint. 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 of subsection (b).

(d) Sufficiency of complaint. (1) The due process complaint required by this section shall be deemed 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 due process complaint does not meet the requirements in subsection (b).

(2) Within five days of receipt of notification under paragraph (1), the hearing officer shall make a determination on the face of the due process complaint of whether the due process complaint meets the requirements of subsection (b), and shall immediately notify the parties in writing of that determination.

(3) A party may amend its due process complaint only if:

(A) The other party consents in writing to the amendment and is given the opportunity to resolve the due process complaint through a meeting held pursuant to section 8-60-64; or

(B) The hearing officer grants permission, except that the hearing officer may only grant permission to amend at any time not later than five days before the due process hearing begins.

(4) If a party files an amended due process complaint, the timelines for the resolution meeting in section 8-60-64(a) and the time period to resolve in section 8-60-64(b) begin again with the filing of the amended due process complaint.

(e) Department response to a due process complaint. (1) If the department has not sent a prior written notice under section 8-60-58 to the parent regarding the subject matter contained in the parent's due process complaint, the department shall, within 10 days of receiving the due process complaint, send to the parent a response that includes:

(A) An explanation of why the department proposed or refused to take the action raised in the due process complaint;

(B) A description of other options that the IEP team considered and the reasons why those options were rejected;

(C) A description of each evaluation procedure, assessment, record, or report the department used as the basis for the proposed or refused action; and

(D) A description of the other factors that are relevant to the department's proposed or refused action.

(2) A response by the department under paragraph (1) shall not be construed to preclude the department from asserting that the parent's due process complaint was insufficient, where appropriate.

(f) Other party response to a due process complaint. Except as provided in subsection (e), the party receiving a due process complaint shall, within 10 days of receiving the due process complaint, send to the other party a response that specifically addresses the issues raised in the due process

complaint.

[Eff 11/23/09] (Auth: 20 U.S.C. 1415(b)(7), 1415(c)(2), HRS §302A-1112) (Imp: 34 C.F.R. §300.508)

 

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