Department of Education
Colorado State Board of Education

1 Colorado Code of Regulations 301-8

 
R U L E S   F O R   T H E   A D M I N I S T R A T I O N    O F   T H E    
E X C E P T I O N A L   C H I L D R E N ' S   E D U C A T I O N A L   A C T

2220-R-1.00	

STATEMENT OF BASIS AND PURPOSE

1.00	(13)	The statutory authority for the amendments to these Rules is found in Title 22, Article 20, Sections 102, 103, 106, and 108.  The purposes of these amendments are: A) to replace the definition of Administrative Unit that was inadvertently deleted through previous emergency rulemaking; B) to repeal Section 2.08(6)(b)(i) and renumber, because by operation of rule the language has expired; and C) to bring the State into compliance with recent legislation adopting a Tier 1 Due Process Hearing System (SB11-061).

2220-R-2.00	

DEFINITIONS USED IN THESE RULES

2.02	Administrative Unit 

Administrative Unit (AU) means a school district, board of cooperative services, or the State Charter School Institute, that is providing educational services to exceptional children and that is responsible for the local administration of these Rules.  In order to qualify as an administrative unit, school districts and boards of cooperative services shall meet all minimum standards established in Section 3.01 of these Rules.  All administrative units shall be approved by the Department of Education.

2220-R-2.00	

DEFINITIONS USED IN THESE RULES

2.08	(6)	Specific Learning Disability

2.08	(6)	(a)	A child with a specific learning disability shall have a learning disorder that prevents the child from receiving reasonable educational benefit from general education.

2.08	(6)	(a)	(i)	Specific learning disability means a disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written, that may manifest itself in the imperfect ability to listen, think, speak, read, write, spell or to do mathematical calculations, including conditions such as perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia, and developmental aphasia.  Specific learning disability does not include learning problems that are primarily the result of:  visual, hearing, or motor disabilities; significant limited intellectual capacity; significant identifiable emotional disability; cultural factors; environmental or economic disadvantage; or limited English proficiency.

2.08	(6)	(b)	  A child may be determined to have a specific learning disability that prevents the child from receiving reasonable educational benefit from general education if the following criteria are met:

2.08	(6)	(b)	 (i)	The child does not achieve adequately for the child’s age or to meet state-approved grade-level standards  in one or more of the following areas, when provided with learning experiences and instruction appropriate for the child’s age or state-approved grade-level standards:
 
2.08	(6)	(b)	 (i)	(A)	Oral expression;

2.08	(6)	(b)	(i)	(B)	Listening comprehension; 

2.08	(6)	(b)	(i)	(C)	Written expression;

2.08	(6)	(b)	(i)	(D)	Basic reading skill; 

2.08	(6)	(b)	(i)	(E)	Reading fluency skills; 

2.08	(6)	(b)	(i)	(F)	Reading comprehension;

2.08	(6)	(b)	(i)	(G)	Mathematical calculation;

2.08	(6)	(b)	(i)	(H)	Mathematics problem solving; and

2.08	(6)	(b)	(ii)	The child does not make sufficient progress to meet age or state-approved grade-level standards in one or more of the areas identified in Section 2.08(6)(b)(i) when using a process based on the child’s response to scientific, research-based intervention as determined by a body of evidence demonstrating:	
		
2.08	(6)	(b)	(ii)	(A)	Academic skill deficit(s); and

2.08	(6)	(b)	(ii)	(B)	Insufficient progress in response to scientific, research-based intervention.

2220-R-6.00	

CONFIDENTIALITY OF INFORMATION AND PROCEDURAL SAFEGUARDS 
DUE PROCESS PROCEDURES FOR PARENTS AND CHILDREN

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)	Due Process Complaints and Appeals

This Rule 6.02(7) remains in effect for all due process complaints filed on or before June 30, 2011.

6.02	(7)	(a)	General.  

Except as is otherwise provided for in this Section 6.02(7),  the requirements regarding resolution meetings, due process hearings and appeals shall be consistent with 34 CFR §300.507 through §300.515.

6.02	(7)	(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)	(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 set forth in 34 CFR §300.508(b).

6.02	(7)	(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 available to parents consistent with 34 CFR §300.504. 
				
6.02	(7)	(b)	Due Process Complaint – specific filing requirements.  

6.02	(7)	(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 impartial hearing officer to the case.  

6.02	(7)	(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. 

6.02	(7)	(b)	(iii)	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)	(b)	(iii)	(A)	By phone, immediately notify the Department of the existence of the due process complaint; and

6.02	(7)	(b)	(iii)	(B)	By facsimile, immediately provide a copy of the due process complaint to the Department accompanied by a written statement documenting the date when the due process complaint was filed.

6.02	(7)	(b)	(iv)	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 impartial hearing officer pursuant to 34 CFR §300.508(d).

6.02	(7)	(c)	Assignment of an impartial hearing officer.  

The Department shall assign an impartial hearing officer from the registry of impartial hearing officers on a rotating basis, depending on availability, within two business days after the Department’s receipt of a due process complaint.

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

6.02	(7)	(d)	(i)	Resolution meeting

6.02	(7)	(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)	(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)	(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)	(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)	(d)	(i)	(C)	The resolution meeting described need not be held if—

6.02	(7)	(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)	(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)	(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)	(d)	(ii)	Resolution period

6.02	(7)	(d)	(ii) 	(A)	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)	(d)	(ii) 	(B)	Except as provided in Section 6.02(7)(d)(ii)(c), below, the timeline for issuing a final due process decision begins at the expiration of the 30-day resolution period.

6.02	(7)	(d)	(ii) 	(C)	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)	(d)	(ii) 	(D)	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)), the administrative unit or state-operated program may, at the conclusion of the 30-day resolution period, request that the impartial hearing officer dismiss the parent's due process complaint.

6.02	(7)	(d)	(ii) 	(E)	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 impartial hearing officer to begin the due process hearing 45-day timeline.

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

6.02	(7)	(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;

6.02	(7)	(d)	(iii)	(C)	If both parties agree in writing to continue the mediation at the end of the 30-day resolution period, but later, the parent or the administrative unit or state-operated program withdraws from the mediation process.

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

6.02	(7)	(e) 	(i)	The administrative unit or state-operated program 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)(d)(iii), above—

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

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

6.02	(7)	(e)	(ii)	At the request of either party, the impartial hearing officer may grant specific extensions of time beyond the 45 day due process hearing period, or the adjusted time periods described in Section 6.02(7)(d)(iii), above.  Any such extension of time shall be accomplished in accordance with the requirements for time extensions set forth in Section 6.02(7)(f)(v), below. 

6.02	(7)	(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)	(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)	(f)	(i)	The qualifications of impartial hearing officers.

The department shall maintain a registry of persons trained by the Department who may serve as due process hearing officers.  The registry shall include a statement of the qualifications of each impartial hearing officer.  At a minimum, an impartial hearing officer must meet the qualifications established by 34 CFR §300.511(c). The Department, at its discretion, may require additional qualifications. 

6.02	(7)	(f)	(ii)	The subject matter of due process hearings; and

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

6.02	(7)	(f)	(iv)	Specific procedures

The hearing officer shall:

6.02	(7)	(f)	(iv)	(A)	Consistent with the timelines in Section 6.02(7)(e), above, establish the procedures and timelines to be followed during the hearing.

6.02	(7)	(f)	(iv)	(B)	Schedule the time and place for the hearing.

6.02	(7)	(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)	(f)	(iv)	(D)	At the request of either party, secure subpoenas from the Department of Personnel and Administration, Office of Administrative Courts, to compel attendance of witnesses at the hearing.

6.02	(7)	(f)	(iv)	(E)	Ensure that a written or electronic verbatim account of the hearing is kept.

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

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

6.02	(7)	(f)	(v)	(A)	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)	(f)	(v)	(B)	The impartial hearing officer’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)	(f)	(v)	(C)	The impartial hearing officer shall provide a copy of such written order to the parties and to the Department.

6.02	(7)	(f)	(v)	(D)	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 timelines established in  Section 6.02(7)(i)(ii), below, shall apply.

6.02	(7)	(g)	Hearing Rights

Generally, hearing rights accorded to parties shall be consistent with 34 CFR §300.512.

6.02	(7)	(h)	Hearing Decisions

6.02	(7)	(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)	(h)	(i)	(A)	The decision of the hearing officer on the provision of FAPE;

6.02	(7)	(h)	(i)	(B)	Separate request for a due process hearing; and
	
6.02	(7)	(h)	(i)	(C)	Transmittal of the findings and decision to the Colorado Special Education Advisory Committee and to the general public.

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

6.02	(7)	(h)	(ii)	(A)	The impartial hearing officer shall render, in writing, all findings of fact and the decision based upon the evidence.

6.02	(7)	(h)	(ii)	(B)	The hearing officer shall mail the decision by certified mail to the parties and the Department within the timelines specified by Section 6.02(7)(e) or, in the case of an expedited hearing, within the timelines specified by 6.02(7)(i)(ii).
6.02	(7)	(h)	(ii)	(C)	The hearing officer shall include with the decision mailed to the parties a copy of Section 6.02(7)(j) of these Rules regarding state level review (i.e., appeal) of the decision.

6.02	(7)	(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)	(h)	(ii)	(E)	The record of the hearing shall include all findings of fact, evidence admitted during the hearing, the decision, and the tape recording of the hearing, if available.  The record shall be forwarded to the department within 45 days after the conclusion of all preceedings if no appeal is taken.  

6.02	(7)	(i)	Expedited Due Process Hearings  

6.02	(7)	(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)	(i)	(ii)	Specific Timelines 

6.02	(7)	(i)	(ii)    (A)	The administrative unit or state-operated program 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 hearing officer must make a determination within 10 school days after the hearing.

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

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

6.02	(7)	(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)	(i)	(iii)	The requirements and procedures contained in this Section 6.02(7)(a) through 6.02(7)(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)	(j)	Appeals		

6.02	(7)	(j)	(i)	Right to appeal decision of impartial hearing officer.

6.02	(7)	(j)	(i)	(A)	General.  

The procedures governing the appeal of a due process hearing decision, including a decision rendered in an expedited due process hearing,  shall be consistent with 34 CFR §300.514.
 
6.02	(7)	(j)	(i)	(B)	Specific Requirements.  

Either party may obtain state level review of the decision of the impartial hearing officer including a decision rendered in an expedited due process hearing.  The state level review shall be conducted on behalf of the Commissioner of Education by an administrative law judge of the Colorado Department of Personnel and Administration, Office of Administrative Courts.

6.02	(7)	(j)	(ii)	Procedure for appealing the decision of an impartial hearing officer.

6.02	(7)	(j)	(ii)	(A)	Any party who seeks to appeal the decision of an impartial hearing officer shall file with or mail to the Office of Administrative Courts within 30 days after receipt of the impartial hearing officer's decision:

6.02	(7)	(j)	(ii)	(A)	(I)	A notice of appeal.

6.02	(7)	(j)	(ii)	(A)	(II)	A designation of the transcript.  A party may designate a portion of the tape recorded record or arrange for a transcript of the tape recorded record.

6.02	(7)	(j)	(ii)	(B)	Simultaneously with mailing or filing the notice of appeal and designation of transcript with the Office of Administrative Courts, the appealing party shall mail copies of these documents to the Department and to all other parties in the proceeding before the impartial hearing officer at their last known addresses.

Within five days of receipt of a notice of appeal, any other party may file a cross appeal.

6.02	(7)	(j)	(ii)	(C)	The notice of appeal shall contain the following:

6.02	(7)	(j)	(ii)	(C)	(I)	The caption of the case, including case number and names of all parties.

6.02	(7)	(j)	(ii)	(C)	(II)	The party or parties initiating the appeal.

6.02	(7)	(j)	(ii)	(C)	(III)	A brief description of the nature of the case and the order being appealed.

6.02	(7)	(j)	(ii)	(C)	(IV)	A list of the issues to be raised on appeal.

6.02	(7)	(j)	(ii)	(C)	(V)	A copy of the findings of fact and decision of the impartial hearing officer being appealed.

6.02	(7)	(j)	(ii)	(C)	(VI)	A certificate of service showing the date that the copy of the notice of appeal was mailed to the Department and to all parties in the proceeding before the impartial hearing officer.  All subsequent documents and pleadings filed with the Office of Administrative Courts shall similarly contain a certificate of service showing that a copy was mailed to all parties.

6.02	(7)	(j)	(ii)	(D)	A notice of cross appeal shall contain those items listed in Section 6.02(7)(j)(ii)(C) of these Rules, along with a certificate of service.

6.02	(7)	(j)	(ii)	(E)	At the time that the notice of appeal is filed or mailed, the appealing party shall also file with or mail to the Office of Administrative Courts a statement that no transcript is necessary for the appeal and a review of the tape recorded record is sufficient; or a designation of all portions of the transcript necessary for resolution of the appeal.  No transcript is required if the issues on appeal are limited to pure questions of law.

6.02	(7)	(j)	(ii)	(F)	Within five days after the receipt of the notice of appeal and designation of transcript or tape recording, the other party may file with the Office of Administrative Courts a designation of any additional portions of the transcript which the party believes are necessary for resolution of the appeal.

6.02	(7)	(j)	(ii)	(G)	Whichever party appeals the decision shall insure that such transcript is filed with the Office of Administrative Courts within 15 days of the date the notice of appeal is mailed or filed.

6.02	(7)	(j)	(ii)	(G)	(I)	Whichever party appeals the decision shall, simultaneously with filing or mailing the notice of appeal and designation of record, contact the court reporter and order the transcript or arrange for the transcription of a tape recorded record or submit the entire tape recorded record.

6.02	(7)	(j)	(ii)	(G)	(II)	Immediately upon filing any additional designations pursuant to Section 6.02(7)(j)(ii)(A)(II) of these Rules, any party submitting designations shall order from the court reporter the transcript or arrange for transcription in the case of a tape recorded record and shall insure that such transcript is filed with the Office of Administrative Courts within 15 days, or submit the entire tape recording.

6.02	(7)	(j)	(ii)	(G)	(III)	A party requesting a written transcript is responsible for paying for it.  A party requesting parts of a written transcript by filing an additional designation is responsible to pay for those portions of the transcript.  Parent(s) shall not be required to pay for the cost of a copy of the tape recorded record for an appeal.  The transcript or portions thereof shall be made available to any party at reasonable times for inspection or copying at the copier's expense.

6.02	(7)	(j)	(ii)	(H)	Upon receipt of the notice of appeal, the administrative law judge assigned to hear the appeal shall direct the impartial hearing officer to certify and transmit to the administrative law judge, within seven days, all pleadings and documents filed with the impartial hearing officer, all exhibits and the decision of the impartial hearing officer.

6.02	(7)	(j)	(iii)	State level review procedures.

6.02	(7)	(j)	(iii)	(A)	Unless otherwise ordered by the administrative law judge, briefs shall be filed and oral argument held within 20 days after the filing or mailing of the notice of appeal.

6.02	(7)	(j)	(iii)	(B)	In conducting a state level review, the administrative law judge shall:

6.02	(7)	(j)	(iii)	(B)	(I)	Examine the entire hearing record including the certified record received from the impartial hearing officer.

6.02	(7)	(j)	(iii)	(B)	(II)	Ensure that the procedures used at the due process hearing were consistent with the requirements of due process;

6.02	(7)	(j)	(iii)	(B)	(III)	Seek additional evidence, if necessary.  If a hearing is held to receive evidence, the rights in 34 CFR §300.512 apply;

6.02	(7)	(j)	(iii)	(B)	(IV)	Afford the parties an opportunity for oral or written argument, or both, at the discretion of the administrative law judge.  Each appeal involving an evidentiary hearing or oral arguments must be conducted at a time and place that is reasonably convenient to the parents and child involved.
6.02	(7)	(j)	(iii)	(B)	(V)	Make an independent decision and mail such to all parties within 30 days after the request for a review is received.

6.02	(7)	(j)	(iii)	(B)	(VI)	Prior to issuing the decision, the administrative law judge shall transmit a copy of the decision to the Department.

6.02	(7)	(j)	(iii)	(B)	(VII)	Give a copy of the written, or, at the option of the parents, electronic findings of fact and decision to the parties.

6.02	(7)	(j)	(iii)	(C)	The Department shall transmit the findings and decisions to the Colorado State Advisory Committee and the general public consistent with the requirements of 34 CFR §300.514(c).

6.02	(7)	(j)	(iii)	(D)	The decision made by the administrative law judge is final unless a party brings a civil action pursuant to 34 CFR §300.516 and Section 6.02(7)(k) of these Rules.

6.02	(7)	(j)	(iv)	Timelines applicable to appeals and convenience of appeals.

The department must ensure that not later than 30 days after the receipt of a timely appeal—

6.02	(7)	(j)	(iv)	(A)	A final decision is reached in the appeal; and

6.02	(7)	(j)	(iv)	(B)	A copy of the decision is mailed to each of the parties.

6.02	(7)	(j)	(v)	Extension of appeal timelines.  At the request of either party the administrative law judge may grant specific extensions of time beyond the 30 day appeal period for the issuance of a decision.  Any such extension of time shall be made in accordance with Section 6.02(7)(j)(vi), below.

6.02	(7)	(j)	(vi)	Extension of timelines
				
6.02	(7)	(j)	(vi)	(A)	Any request by a party to extend an appeal decision timeline shall be made within a reasonable period of time prior to the expiration of the 30 day appeal period or previously extended time period;  

6.02	(7)	(j)	(vi)	(B)	The administrative law judge’s decision regarding the requested extension of an appeal 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)	(j)	(vi)	(C)	The administrative law judge shall provide a copy of such written order to the parties and to the Department.

6.02	(7)	(k)	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)	(l) 	Attorneys' fees. 

Reasonable attorneys’ fees may be awarded to a prevailing party by a court of competent jurisdiction consistent with the requirements established by 34 CFR §300.517.

6.02	(7)	(m)	Child’s status during proceedings 

The child’s status during the pendancy 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 34 CFR §300.533 applies.
6.02	(7.5)	Due Process Complaints and Civil Actions

This Rule 6.02(7.5) shall be effective for all due process complaints filed on or after July 1, 2011.

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)	(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. 

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.

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)(ii) (D), 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.