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34 C.F.R. §§ 300.511–300.516

6 sections in range

§300.511. Impartial due process hearing.

34 C.F.R. § 300.511

(a)
General. Whenever a due process complaint is received under § 300.507 or § 300.532, the parents or the LEA involved in the dispute must have an opportunity for an impartial due process hearing, consistent with the procedures in §§ 300.507, 300.508, and 300.510.
(b)
Agency responsible for conducting the due process hearing. The hearing described in paragraph (a) of this section must be conducted by the SEA or the public agency directly responsible for the education of the child, as determined under State statute, State regulation, or a written policy of the SEA.
(c)
Impartial hearing officer.
(1)
At a minimum, a hearing officer—
(i)
Must not be—
(A)
An employee of the SEA or the LEA that is involved in the education or care of the child; or
(B)
A person having a personal or professional interest that conflicts with the person's objectivity in the hearing;
(ii)
Must possess knowledge of, and the ability to understand, the provisions of the Act, Federal and State regulations pertaining to the Act, and legal interpretations of the Act by Federal and State courts;
(iii)
Must possess the knowledge and ability to conduct hearings in accordance with appropriate, standard legal practice; and
(iv)
Must possess the knowledge and ability to render and write decisions in accordance with appropriate, standard legal practice.
(2)
A person who otherwise qualifies to conduct a hearing under paragraph (c)(1) of this section is not an employee of the agency solely because he or she is paid by the agency to serve as a hearing officer.
(3)
Each public agency must keep a list of the persons who serve as hearing officers. The list must include a statement of the qualifications of each of those persons.
(d)
Subject matter of due process hearings. The party requesting the due process hearing may not raise issues at the due process hearing that were not raised in the due process complaint filed under § 300.508(b), unless the other party agrees otherwise.
(e)
Timeline for requesting a hearing. A parent or agency must request an impartial hearing on their due process complaint within two years of the date the parent or agency knew or should have known about the alleged action that forms the basis of the due process complaint, or if the State has an explicit time limitation for requesting such a due process hearing under this part, in the time allowed by that State law.
(f)
Exceptions to the timeline. The timeline described in paragraph (e) of this section does not apply to a parent if the parent was prevented from filing a due process complaint due to—
(1)
Specific misrepresentations by the LEA that it had resolved the problem forming the basis of the due process complaint; or
(2)
The LEA's withholding of information from the parent that was required under this part to be provided to the parent.
Notes, amendments, and revision history

Authority

Authority: 20 U.S.C. 1221e-3, 1406, 1411-1419, and 3474; Pub. L. 111-256, 124 Stat. 2643; unless otherwise noted.

Source

Source: 71 FR 46753, Aug. 14, 2006, unless otherwise noted.

§300.512. Hearing rights.

34 C.F.R. § 300.512

(a)
General. Any party to a hearing conducted pursuant to §§ 300.507 through 300.513 or §§ 300.530 through 300.534, or an appeal conducted pursuant to § 300.514, has the right to—
(1)
Be accompanied and advised by counsel and by individuals with special knowledge or training with respect to the problems of children with disabilities, except that whether parties have the right to be represented by non-attorneys at due process hearings is determined under State law;
(2)
Present evidence and confront, cross-examine, and compel the attendance of witnesses;
(3)
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;
(4)
Obtain a written, or, at the option of the parents, electronic, verbatim record of the hearing; and
(5)
Obtain written, or, at the option of the parents, electronic findings of fact and decisions.
(b)
Additional disclosure of information.
(1)
At least five business days prior to a hearing conducted pursuant to § 300.511(a), each party must disclose to all other parties all evaluations completed by that date and recommendations based on the offering party's evaluations that the party intends to use at the hearing.
(2)
A hearing officer may bar any party that fails to comply with paragraph (b)(1) of this section from introducing the relevant evaluation or recommendation at the hearing without the consent of the other party.
(c)
Parental rights at hearings. Parents involved in hearings must be given the right to—
(1)
Have the child who is the subject of the hearing present;
(2)
Open the hearing to the public; and
(3)
Have the record of the hearing and the findings of fact and decisions described in paragraphs (a)(4) and (a)(5) of this section provided at no cost to parents.
Notes, amendments, and revision history

Amendments

[71 FR 46753, Aug. 14, 2006, as amended at 73 FR 73027, Dec. 1, 2008]

Authority

Authority: 20 U.S.C. 1221e-3, 1406, 1411-1419, and 3474; Pub. L. 111-256, 124 Stat. 2643; unless otherwise noted.

Source

Source: 71 FR 46753, Aug. 14, 2006, unless otherwise noted.

Amendments

[71 FR 46753, Aug. 14, 2006, as amended at 73 FR 73027, Dec. 1, 2008]

§300.513. Hearing decisions.

34 C.F.R. § 300.513

(a)
Decision of hearing officer on the provision of FAPE.
(1)
Subject to paragraph (a)(2) of this section, a hearing officer's determination of whether a child received FAPE must be based on substantive grounds.
(2)
In matters alleging a procedural violation, a hearing officer may find that a child did not receive a FAPE only if the procedural inadequacies—
(i)
Impeded the child's right to a FAPE;
(ii)
Significantly impeded the parent's opportunity to participate in the decision-making process regarding the provision of a FAPE to the parent's child; or
(iii)
Caused a deprivation of educational benefit.
(3)
Nothing in paragraph (a) of this section shall be construed to preclude a hearing officer from ordering an LEA to comply with procedural requirements under §§ 300.500 through 300.536.
(b)
Construction clause. Nothing in §§ 300.507 through 300.513 shall be construed to affect the right of a parent to file an appeal of the due process hearing decision with the SEA under § 300.514(b), if a State level appeal is available.
(c)
Separate request for a due process hearing. Nothing in §§ 300.500 through 300.536 shall be construed to preclude a parent from filing a separate due process complaint on an issue separate from a due process complaint already filed.
(d)
Findings and decision to advisory panel and general public. The public agency, after deleting any personally identifiable information, must—
(1)
Transmit the findings and decisions referred to in § 300.512(a)(5) to the State advisory panel established under § 300.167; and
(2)
Make those findings and decisions available to the public.
Notes, amendments, and revision history

Authority

Authority: 20 U.S.C. 1221e-3, 1406, 1411-1419, and 3474; Pub. L. 111-256, 124 Stat. 2643; unless otherwise noted.

Source

Source: 71 FR 46753, Aug. 14, 2006, unless otherwise noted.

§300.514. Finality of decision; appeal; impartial review.

34 C.F.R. § 300.514

(a)
Finality of hearing decision. A decision made in a hearing conducted pursuant to §§ 300.507 through 300.513 or §§ 300.530 through 300.534 is final, except that any party involved in the hearing may appeal the decision under the provisions of paragraph (b) of this section and § 300.516.
(b)
Appeal of decisions; impartial review.
(1)
If the hearing required by § 300.511 is conducted by a public agency other than the SEA, any party aggrieved by the findings and decision in the hearing may appeal to the SEA.
(2)
If there is an appeal, the SEA must conduct an impartial review of the findings and decision appealed. The official conducting the review must—
(i)
Examine the entire hearing record;
(ii)
Ensure that the procedures at the hearing were consistent with the requirements of due process;
(iii)
Seek additional evidence if necessary. If a hearing is held to receive additional evidence, the rights in § 300.512 apply;
(iv)
Afford the parties an opportunity for oral or written argument, or both, at the discretion of the reviewing official;
(v)
Make an independent decision on completion of the review; and
(vi)
Give a copy of the written, or, at the option of the parents, electronic findings of fact and decisions to the parties.
(c)
Findings and decision to advisory panel and general public. The SEA, after deleting any personally identifiable information, must—
(1)
Transmit the findings and decisions referred to in paragraph (b)(2)(vi) of this section to the State advisory panel established under § 300.167; and
(2)
Make those findings and decisions available to the public.
(d)
Finality of review decision. The decision made by the reviewing official is final unless a party brings a civil action under § 300.516.
Notes, amendments, and revision history

Authority

Authority: 20 U.S.C. 1221e-3, 1406, 1411-1419, and 3474; Pub. L. 111-256, 124 Stat. 2643; unless otherwise noted.

Source

Source: 71 FR 46753, Aug. 14, 2006, unless otherwise noted.

§300.515. Timelines and convenience of hearings and reviews.

34 C.F.R. § 300.515

(a)
The public agency must ensure that not later than 45 days after the expiration of the 30 day period under § 300.510(b), or the adjusted time periods described in § 300.510(c)—
(1)
A final decision is reached in the hearing; and
(2)
A copy of the decision is mailed to each of the parties.
(b)
The SEA must ensure that not later than 30 days after the receipt of a request for a review—
(1)
A final decision is reached in the review; and
(2)
A copy of the decision is mailed to each of the parties.
(c)
A hearing or reviewing officer may grant specific extensions of time beyond the periods set out in paragraphs (a) and (b) of this section at the request of either party.
(d)
Each hearing and each review involving oral arguments must be conducted at a time and place that is reasonably convenient to the parents and child involved.
Notes, amendments, and revision history

Authority

Authority: 20 U.S.C. 1221e-3, 1406, 1411-1419, and 3474; Pub. L. 111-256, 124 Stat. 2643; unless otherwise noted.

Source

Source: 71 FR 46753, Aug. 14, 2006, unless otherwise noted.

§300.516. Civil action.

34 C.F.R. § 300.516

(a)
General. Any party aggrieved by the findings and decision made under §§ 300.507 through 300.513 or §§ 300.530 through 300.534 who does not have the right to an appeal under § 300.514(b), and any party aggrieved by the findings and decision under § 300.514(b), has the right to bring a civil action with respect to the due process complaint notice requesting a due process hearing under § 300.507 or §§ 300.530 through 300.532. The action may be brought in any State court of competent jurisdiction or in a district court of the United States without regard to the amount in controversy.
(b)
Time limitation. The party bringing the action shall have 90 days from the date of the decision of the hearing officer or, if applicable, the decision of the State review official, to file a civil action, or, if the State has an explicit time limitation for bringing civil actions under Part B of the Act, in the time allowed by that State law.
(c)
Additional requirements. In any action brought under paragraph (a) of this section, the court—
(1)
Receives the records of the administrative proceedings;
(2)
Hears additional evidence at the request of a party; and
(3)
Basing its decision on the preponderance of the evidence, grants the relief that the court determines to be appropriate.
(d)
Jurisdiction of district courts. The district courts of the United States have jurisdiction of actions brought under section 615 of the Act without regard to the amount in controversy.
(e)
Rule of construction. Nothing in this part restricts or limits the rights, procedures, and remedies available under the Constitution, the Americans with Disabilities Act of 1990, title V of the Rehabilitation Act of 1973, or other Federal laws protecting the rights of children with disabilities, except that before the filing of a civil action under these laws seeking relief that is also available under section 615 of the Act, the procedures under §§ 300.507 and 300.514 must be exhausted to the same extent as would be required had the action been brought under section 615 of the Act.
Notes, amendments, and revision history

Authority

Authority: 20 U.S.C. 1221e-3, 1406, 1411-1419, and 3474; Pub. L. 111-256, 124 Stat. 2643; unless otherwise noted.

Source

Source: 71 FR 46753, Aug. 14, 2006, unless otherwise noted.