---
kind: "section"
citation: "34 C.F.R. § 86.409"
title: "34"
number: "86.409"
heading: "What are the procedures for conducting a hearing on the record?"
url: "https://uscodex.org/cfr/34/86.409"
---

# §86.409. What are the procedures for conducting a hearing on the record?

- (a) **A hearing on the record is an orderly presentation of arguments and evidence conducted by an ALJ.**
- (b) **An ALJ conducts the hearing entirely on the basis of briefs and other written submissions unless—**
  - (1) The ALJ determines, after reviewing all appropriate submissions, that an evidentiary hearing is needed to resolve a material factual issue in dispute; or
  - (2) The ALJ determines, after reviewing all appropriate submissions, that oral argument is needed to clarify the issues in the case.
- (c) The hearing process may be expedited as agreed by the ALJ, the designated Department official, and the IHE. Procedures to expedite may include, but are not limited to, the following:
  - (1) **A restriction on the number or length of submissions.**
  - (2) **The conduct of the hearing by telephone conference call.**
  - (3) **A review limited to the written record.**
  - (4) **A certification by the parties to facts and legal authorities not in dispute.**
- (d)
  - (1) The formal rules of evidence and procedures applicable to proceedings in a court of law are not applicable.
  - (2) **The designated Department official has the burden of persuasion in any proceeding under this subpart.**
  - (3)
    - (i) The parties may agree to exchange relevant documents and information.
    - (ii) The ALJ may not order discovery, as provided for under the Federal Rules of Civil Procedure, or any other exchange between the parties of documents or information.
  - (4) The ALJ accepts only evidence that is relevant and material to the proceeding and is not unduly repetitious.
- (e) The ALJ makes a transcribed record of any evidentiary hearing or oral argument that is held, and makes the record available to—
  - (1) The designated Department official; and
  - (2) The IHE on its request and upon payment of a fee comparable to that prescribed under the Department of Education Freedom of Information Act regulations ([34 CFR part 5](/cfr/34/part5.md)).

## Notes

### Amendments

[55 FR 33581, Aug. 16, 1990, as amended at 61 FR 66225, Dec. 17, 1996]

### Authority

Authority: 20 U.S.C. 1145g, unless otherwise noted.

### Source

Source: 55 FR 33581, Aug. 16, 1990, unless otherwise noted.

### Amendments

[55 FR 33581, Aug. 16, 1990, as amended at 61 FR 66225, Dec. 17, 1996]