388.306 - Due process complaint

388.306. Due process complaint

1. Except as otherwise provided in NAC 388.300, a parent of a pupil or a public agency may file a due process complaint on any matter relating to any proposal or refusal to initiate or change the identification, evaluation or educational placement of the pupil or the provision of a free appropriate public education to the pupil. If the party filing the due process complaint is the parent of a pupil, the parent shall file the due process complaint with the head of the public agency.

2. The Department shall develop a model form for filing a due process complaint and post the model form on the Internet website maintained by the Department. A party may use the model form to file a due process complaint or may use any other form or document that meets the requirements of subsection 3.

3. The party filing the due process complaint, or an attorney representing the party, must provide a copy of the due process complaint to the other party and forward a copy of the due process complaint to the Superintendent at the same time. The due process complaint must include:

(a) The name of the pupil;

(b) The address of the residence of the pupil or, if the pupil is a homeless youth, available contact information for the pupil;

(c) The name of the school the pupil is attending;

(d) A description of the nature of the problem of the pupil relating to the public agency's proposal or refusal, including, without limitation, the facts relating to the problem; and

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

A party may not have a hearing until the party, or an attorney representing the party, files a due process complaint that meets the requirements of this subsection.

4. A due process complaint filed pursuant to this section is deemed sufficient unless, within 15 days after receiving the due process complaint, the party receiving the due process complaint submits written notice to the hearing officer and the party who filed the due process complaint that the due process complaint does not meet the requirements of subsection 3.

5. Within 5 days after receipt of a notification pursuant to subsection 4, the hearing officer shall make a determination on the face of the due process complaint whether the due process complaint meets the requirements of subsection 3 and shall immediately provide notice to the parties in writing of his or her determination.

6. A party may amend its due process complaint if:

(a) The party receiving the due process complaint consents in writing to the amendment and is given an opportunity to resolve the problems identified in the due process complaint through a resolution meeting held pursuant to NAC 388.307; or

(b) The hearing officer grants permission not less than 5 days before the hearing.

7. If a party files an amended due process complaint, the time period relating to holding a resolution meeting and the time period for resolving the due process complaint pursuant to NAC 388.307 recommence on the date on which the amended due process complaint is filed.

8. If the public agency has not sent a prior written notice pursuant to NAC 388.300 to the parent regarding the subject matter contained in the parent's due process complaint, the public agency shall, within 10 days after receiving the due process complaint, send to the parent a response that includes:

(a) An explanation of why the public agency proposed or refused to take the action raised in the due process complaint;

(b) A description of other options that were considered and the reasons for rejecting those options;

(c) A description of each evaluation procedure, assessment, record or report that the public agency used as the basis for the proposed or refused action; and

(d) A description of the other factors that are relevant to the proposed or refused action of the public agency.

A response required pursuant to this subsection does not preclude the public agency from asserting that the due process complaint is insufficient.

9. Unless a response is sent pursuant to subsection 8, the party who receives a due process complaint shall, within 10 days after receiving the due process complaint, send to the other party a response that specifically addresses the issues raised in the due process complaint and file a copy of the response with the hearing officer.

10. Within 5 days after receiving or filing a due process complaint pursuant to subsection 1, the head of the public agency shall request that the Superintendent appoint a hearing officer. The Superintendent, upon receiving such a request, shall:

(a) Appoint an impartial hearing officer from the list of hearing officers maintained by the Department pursuant to NRS 388.463; and

(b) Notify the parties of the appointment.

11. Except as otherwise provided in this section, NAC 388.308 or 20 U.S.C. § 1415(k), or as otherwise agreed by the parties, the pupil must remain in the pupil's current placement until completion of any administrative or judicial proceedings regarding a due process complaint filed pursuant to this section.

12. If a due process complaint involves an application for a child's initial admission to a program of a public school, the child, with the consent of the parent, must be placed in a public school until the completion of all the proceedings.

13. If a due process complaint involves an application for initial services for a child who is receiving early intervention services and who is no longer eligible for those services because he or she has attained 3 years of age, the public agency: (a) Is not required to provide the early intervention services that the child received under an individualized family service plan; and (b) Shall, if it is determined the child is eligible for special education and related services and the parent consents to the initial provision of special education and related services pursuant to NAC 388.300, provide to the child special education and related services to the extent that those services are not in dispute between the parent and the public agency.

14. If, in an appeal taken pursuant to NAC 388.315, the state review officer agrees with the parents of the pupil that a particular change in the pupil's current placement is appropriate, the change in placement must be treated as an agreement between the public agency and the parents for the purposes of subsection 11.

15. Except as otherwise provided in this subsection, a parent or a public agency must file a due process complaint pursuant to this section within 2 years after the date on which the parent or public agency knew or should have known about the alleged action that forms the basis of the due process complaint. The time limit for filing a due process complaint does not apply to a parent if:

(a) The parent was prevented from filing a due process complaint due to specific misrepresentations by the public agency that it had resolved the problem forming the basis of the due process complaint; or

(b) The public agency withheld information from the parent that the public agency was required to provide to the parent pursuant to Part B of the Individuals with Disabilities Education Act, 20 U.S.C. §§ 1411 et seq., and the regulations adopted pursuant thereto.

16. The Department shall post the timelines and procedures for conducting due process hearings and appeals pursuant to NAC 388.306 to 388.315, inclusive, on the Internet website maintained by the Department.

Added to NAC by Bd. of Education by R058-07, eff. 10-31-2007; A by R017-18A, eff. 1-30-2019

NRS 385.080 and 388.419

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