Arkansas Administrative Code
Agency 005 - DEPARTMENT OF EDUCATION
Division 28 - Division of Elementary and Secondary Education
Rule 005.28.22-025 - DESE Rules Governing Special Education, Sec. 10.00 Mediation and Hearings
Universal Citation: AR Admin Rules 005.28.22-025
Current through Register Vol. 49, No. 2, February 2024
10.00 IMPARTIAL DUE PROCESS HEARING PROCEDURES
10.01 Purpose
10.01.1 The purpose of these procedures is to
ensure that an impartial due process hearing is conducted in the manner
prescribed by the IDEA, (20
U.S.C. 1400-
1487) and the corresponding
federal regulations at 34 CFR part 300.
10.02 Definitions.
10.02.1 "Day" means a calendar day unless
otherwise indicated as business day or school day.
10.02.2 "Business day" means Monday through
Friday, except for federal and state holidays, unless holidays are specifically
included in the designation of business day, as in
34 CFR
300.148
(d)(1)(ii).
10.02.3 "School day" means any day, including
a partial day that children are in attendance at school for instructional
purposes. School day has the same meaning for all children in school, including
children with and without disabilities.
10.02.4 "Department" means the Arkansas
Department of Education.
10.02.5
"He" or "his" means both the male and female gender.
10.02.6 "Joint Exhibit" means an exhibit that
the parties agree should be admitted into evidence.
10.02.7 "Party" means a parent or a public
agency responsible for the provision of a free appropriate public education to
children with disabilities.
10.03 Hearings Generally - Subject Matter.
10.03.1 A parent or public agency may file a
due process complaint on any of the matters described in
34 CFR
300.503(a)(1) and (2) and
section 9.04.1 of these rules relating to
the identification, evaluation or educational placement of a child with a
disability, or the provision of a free appropriate public education to the
child.
10.03.2 The due process
complaint must allege a violation that occurred not more than two years before
the date the parent or public agency knew or should have known about the
alleged action that forms the basis of the due process complaint.
10.03.3 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
34 CFR
508(b) and section
10.07 unless the other party
agrees otherwise.
10.04
Hearings Generally - subject matter for expedited hearings; timelines for
request.
10.04.1 If a parent disagrees with a
determination that a child's behavior was not a manifestation of the child's
disability or with any decision regarding placement of the child during
disciplinary removals, the parent may appeal the decision by filing a complaint
requesting an expedited due process hearing pursuant to
34 CFR
300.507 and
300.508(a)
and (b).
10.04.2 A school district may appeal the
decision by requesting an expedited hearing when school personnel have reason
to believe that maintaining the current placement of the child is substantially
likely to result in injury to the child or to others.
10.04.3 Whenever a hearing is requested under
this section, the parents or the LEA involved in the dispute must have an
opportunity for an impartial due process hearing consistent with the
requirements of 34 CFR
300.507 and
34 CFR
300.508 (a) through (c) and
34 CFR
300.510 through
34 CFR
300.514 except as provided in
34 CFR
300.532 (c)(2) through
(4).
10.04.4 The SEA or LEA 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.
10.04.5 Unless the parents
and LEA agree in writing to waive the resolution meeting described in
34 CFR
300.532(c)(3)(i) and these
rules, or agree to use the mediation process described in
34 CFR
300.506 -
10.04.5.1 A resolution meeting must occur
within seven days of receiving notice of the due process complaint;
and
10.04.5.2 The due process
hearing may proceed unless the matter has resolved to the satisfaction of both
parties within 15 days of the receipt of the due process complaint.
10.04.6 Timeline for requesting a
hearing.
10.04.6.1 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.
10.04.6.2 Exceptions to timeline. The
timeline described in 10.04.6.1 of this section does not apply to a parent if
the parent was prevented from filing a due process complaint due to -
10.04.6.2.a Specific misrepresentations by
the LEA that it had resolved the problem by forming this basis of the due
process complaint; or
10.04.6.2.b
The LEA's withholding of information from the parent that was required under
this rule to be provided to the parent.
10.05 Hearings Generally -
notification procedures.
10.05.1 The following
are the procedures to be followed when the parents or public agency officials
make it known that they wish to initiate a due process hearing:
10.05.1.1 The hearing request is placed in
writing by the requesting party. The party, or attorney representing the party,
filing a due process complaint must provide to the other party a due process
complaint, which must remain confidential. The party filing a due process
complaint must forward a copy of the due process complaint to the SEA. (See
forms for request for hearing/expedited hearing.)
10.05.1.2 The public agency official
completes the Due Process Information form and notifies the Associate Director,
Special Education Unit, or SEA. (See Notification Letter to SEA.)
10.05.1.3 The public agency notifies the
parent in writing that the request for hearing has been filed with the SEA.
(See Notice of Filing a Request For Hearing/Expedited Hearing form.)
The letter will include a copy of "Your Rights Under the IDEA," due process hearing procedures, and a completed of the Due Process Hearing Information form. (See Notice of Filing a Request for Hearing/Expedited Hearing form.)
10.05.1.4 The Office
of Special Education will make arrangements for the hearing and inform parties
of their hearing rights.
10.06 Hearings Generally - parent notice of
legal services.
When the parent or public agency initiates a hearing under these procedures, or when a parent requests information regarding representation, the public agency shall inform the parent of any free or low-cost legal and other relevant services available in the area.
10.07 Hearings Generally - content
of complaint.
10.07.1 The party filing a due
process hearing request must provide the following information:
10.07.1.1 The name of the child;
10.07.1.2 The residential address of the
child;
10.07.1.3 The name of the
school the child is attending;
10.07.1.4 A description of the nature of the
problem of the child relating to the proposed or refused initiation or change,
including facts relating to the problem;
10.07.1.5 A proposed resolution of the
problem to the extent known and available to the parent(s) at the time;
and
10.07.1.6 In the case of a
homeless child 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 of the child, and the name of the school the child is
attending.
10.08 Hearings Generally - public agency
responsibilities.
10.08.1 The public agency as
a party to a due process hearing must -
10.08.1.1 Complete the Due Process Hearing
Information form.
10.08.1.2 Provide
access to all education records, reports and files regarding the child to
parents and their representative for review and inspection.
10.08.1.3 Provide the parents with an
opportunity to inspect and copy these records at a reasonable cost.
10.08.1.4 Make the arrangements for an
independent educational evaluation for the child by an outside evaluator when
deemed necessary by agreement with the parents or by order of the hearing
officer.
10.08.1.5 Compel
appropriate educational personnel to provide testimony at the hearing as
determined by the public agency and/or as requested by the parents.
10.08.1.6 Provide a meeting room for the due
process hearing.
10.08.1.7 Provide
evidence and testimony at the hearing to show that the proposed course of
action is necessary and appropriate.
10.08.1.8 Inform parents of any free or
low-cost legal and other relevant services available in the area if the parent
requests the information; or if the parent or the public agency initiates a
hearing.
10.08.1.9 Supply
information to the hearing officer and the Office of Special Education
concerning the assignment and appointment of the child's surrogate parent, if
applicable. (See §15.00 for rules regarding the appointment of surrogate
parents.)
10.09 Hearings Generally - state education
agency responsibilities.
10.09.1 It shall be
the responsibility of the State education agency to -
10.09.1.1 Arrange for the date, time and
location of the hearing and assign a hearing officer to conduct the hearing.
The hearing shall be conducted at a time and place which is reasonably
convenient to the parents and child involved.
10.09.1.2 Provide upon request interpreters
for the deaf or interpreters fluent in the primary language spoken in the
child's home.
10.10 Sufficiency of complaint.
10.10.1 The due process complaint required by
this section must 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
section 10.07 of this rule.
10.10.2
Within five days of receipt of notification under section 10.10.1, the hearing
officer must make a determination on the face of the due process complaint
whether the due process complaint meets the requirements of section 10.07 of
this rule and must immediately notify the parties in writing of that
determination.
10.10.3 A party may
amend its due process complaint only if the party consents in writing to the
amendment and is given the opportunity to resolve the due process complaint
through a meeting pursuant to
34 CFR
300.510 and section
10.11.1; or 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.
10.10.4 If a party files an
amended due process complaint, the timelines for the resolution meeting in
34 CFR
300.510(a) and section
10.11.1 and the time period to
resolve in 34 CFR
300.510(b) and section
10.11.2 begin again with the
filing of the amended due process complaint.
10.10.5 LEA response to a due process
complaint.
10.10.5.1 If the LEA has not sent a
prior written notice under 34 CFR 300.503 and section
9.04 to the parent regarding the
subject matter contained in the parent's due process complaint, the LEA must,
within 10 days of receiving the due process complaint, send to the parent a
response that includes -
10.10.5.1.a An
explanation of why the agency proposed or refused to take the action raised in
the due process complaint;
10.10.5.1.b A description of other options
the IEP Team considered and the reasons why those options were
rejected;
10.10.5.1.c A description
of each evaluation procedure, assessment, record, or report the agency used as
the basis for the proposed or refused action; and
10.10.5.1.d A description of the other
factors that are relevant to the agency's proposed or refused action.
10.10.6 Other party
response to a due process complaint.
10.10.6.1
Except as provided in section 10.10.5, the party receiving a due process
complaint must, 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.
10.11 Resolution process.
10.11.1 Resolution meeting.
10.11.1.1 Within 15 days of receiving notice
of the parent's due process complaint, and prior to the initiation of a due
process hearing under 34 CFR
300.511 and section
10.04.3, the LEA must convene a
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 -
10.11.1.1.a Includes a representative
of the public agency who has decision making authority on behalf of that
agency; and
10.11.1.1.b May not
include an attorney of the LEA unless the parent is accompanied by an
attorney.
10.11.1.2 The
purpose of the 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 LEA has the opportunity to resolve the dispute that is
the basis for the due process complaint.
10.11.1.3 The meeting described in section
10.11.1 need not be held if:
10.11.1.3.a The
parent and the LEA agree in writing to waive the meeting; or
10.11.1.3.b The parent and the LEA agree to
use the mediation process described in
34 CFR
300.506 and section
10.12.
10.11.1.4 The parent and the LEA determine
the relevant members of the IEP Team to attend the meeting.
10.11.2 Resolution period.
10.11.2.1 If the LEA 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.
10.11.2.2 Except as provided
in section 10.11.3, the timeline for issuing a final decision under
34 CFR
300.515 and section
10.16 begins with the expiration
of this 30-day period.
10.11.2.3
Except where the parties have jointly agreed to waive the resolution process or
to use mediation, notwithstanding sections 10.11.2.1 and 10.11.2.2 of this
section, 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.
10.11.2.4 If the LEA 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 LEA may, at
the conclusion of the 30-day period, request that a hearing officer dismiss the
parent's due process complaint.
10.11.2.5 If the LEA fails to hold the
resolution meeting specified in section 10.11.1 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 a hearing officer
to begin the due process hearing timeline.
10.11.2.6 The LEA shall provide written
verification to the state agency that it has met the meeting
requirement.
10.11.3
Adjustments to 30-day resolution period.
10.11.3.1 The 45-day timeline for the due
process hearing in 34 CFR
300.515(a) and section
10.16 starts the day after one of
the following events:
10.11.3.1.a Both parties
agree in writing to waive the resolution meeting;
10.11.3.1.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;
10.11.3.1.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 public agency withdraws from the mediation
process.
10.11.4 Written settlement agreement.
10.11.4.1 If a resolution to the dispute is
reached at the meeting described in 10.11.2.1 and 10.11.2.2 of this section,
the parties must execute a legally binding agreement that is:
10.11.4.1.a Signed by both the parent and
representative of the agency who has the authority to bind the agency;
and
10.11.4.1.b Enforceable in any
State court of competent jurisdiction or in a district court of the United
States.
10.11.5 Agreement review period.
10.11.5.1 If the parties execute an agreement
pursuant to section 10.11.3, a party may void the agreement within 3 business
days of the agreement's execution.
10.12 Hearings Generally - notification of
availability of mediation; mediation consultation.
10.12.1 General. The State education agency
has established and implements the following procedures to allow parties to
disputes involving any matter under this rule to resolve the disputes through a
mediation process, including matters arising prior to the filing of a due
process complaint, (hereafter referred to as the "pre-hearing mediation
conference").
10.12.2 When a
hearing request is initiated pursuant to these procedures, the public agency
must inform the parent of the availability of mediation described in
34 CFR
300.506 and these rules.
10.12.2.1 The purposes of the pre-hearing
mediation conference are:
10.12.2.1.a To
resolve, if possible, all disagreement, thus eliminating the need for a due
process hearing;
10.12.2.1.b To
narrow the range of disagreement to a specific issue or issues in the event
that total resolution of the disagreement is not accomplished;
10.12.2.1.c To provide an atmosphere, through
the introduction of a mediator, which is conducive to relevant discussions and
mutual agreement; and
10.12.2.1.d
To acquaint the parties to the dispute with the due process hearing
procedures.
10.12.3 Requirements. The procedures for a
pre-hearing mediation conference shall meet the following requirements:
10.12.3.1 The procedures ensure that the
mediation process -
10.12.3.1.a Is voluntary
on the part of the parties; and
10.12.3.1.b Is not used to deny or delay a
parent's right to a due process hearing, or to deny any other rights afforded
under Part B of the IDEA.
10.12.3.1.c Is conducted by a qualified and
impartial mediator who is trained in effective mediation techniques.
10.12.3.2 The State must maintain
a list of individuals who are qualified mediators and knowledgeable in laws and
rules relating to the provision of special education and related services. The
SEA must select mediators on a random, rotational, or other impartial
basis.
10.12.3.3 Each session in
the mediation process is scheduled in a timely manner and is held in a location
that is convenient to the parties to the dispute.
10.12.3.4 The State must bear the cost of the
mediation process.
10.12.3.5 If
parties to a dispute elect to participate in a pre-hearing mediation
conference, whenever possible the conference will be scheduled within seven (7)
calendar days after the written request for a due process hearing has been
received by the Office of Special Education.
10.12.3.6 Attorneys for parties to the
dispute are not permitted to attend the pre-hearing mediation session(s), as
the presence of attorneys at the pre-hearing mediation session would have the
potential for creating an adversarial atmosphere not conducive to mediation of
the dispute. This does not, however, preclude either party from communicating
with its attorney to seek advice regarding the terms of a settlement
proposal.
10.12.3.7 An agreement
reached by the parties to the dispute participating in the mediation process
must be set forth in a written mediation agreement that is legally binding and
that sets forth that resolution and that:
10.12.3.7.a States that all discussions that
occur during the mediation process will remain confidential and may not be used
as evidence in any subsequent due process hearing or civil proceeding;
and
10.12.3.7.b Is signed by both
the parent and a representative of the agency who has the authority to bind
such agency.
10.12.3.8 A
written, signed mediation agreement under this rule is enforceable in any State
court of competent jurisdiction or in a district court of the United States.
Discussions that occur during the mediation process must be confidential and
may not be used as evidence in any subsequent due process hearing or civil
proceeding of any Federal court or State court of a State receiving assistance
under this rule.
10.12.4
Impartiality of mediator.
10.12.4.1 An
individual who serves as a mediator under this rule:
10.12.4.1.a May not be an employee of the SEA
or the LEA that is involved in the education or care of the child;
and
10.12.4.2 Must not
have a personal or professional interest that conflicts with the person's
objectivity.
10.12.4.3 A person who
otherwise qualifies as a mediator is not an employee of an LEA or State agency
described in 34 CFR
300.228 solely because he or she is paid by
the agency to serve as a mediator.
10.13 Hearings Generally - hearing rights.
10.13.1 Any party to a hearing under these
procedures has the right to -
10.13.1.1 Be
accompanied and advised by counsel and by individuals with special knowledge or
training with respect to the problems of children with disabilities;
10.13.1.2 Present evidence and confront,
cross- examine, and compel the attendance of witnesses;
10.13.1.3 Prohibit the introduction of any
evidence at the hearing that has not been disclosed to that party at least five
(5) business days before the hearing;
10.13.1.4 Obtain a written, or, at the option
of the parents, electronic, verbatim record of the hearing; and
10.13.1.5 Obtain written, or, at the option
of the parents, electronic findings of fact and decisions.
10.13.2 At least five (5) business days prior
to a scheduled hearing conducted under these procedures, and at least two (2)
business days prior to a scheduled expedited hearing conducted under these
regulations, 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.
10.13.3 A hearing officer may prohibit any
party that fails to properly disclose an evaluation and corresponding
recommendations from introducing the relevant evaluation or recommendations at
the hearing without the consent of the other party.
10.14 Hearings Generally - parental rights at
hearings.
10.14.1 Parents involved in hearings
must be given the right to -
10.14.1.1 Have
the child who is the subject of the hearing present; and
10.14.1.2 Open the hearing to the
public.
10.14.2 The
record of the hearing, findings of fact, and decisions described in sections
10.13.1.4 and 10.13.1.5 of this section, shall be provided at no cost to
parents.
10.15 Hearings
Generally - publication of findings.
10.15.1
The Department, after deleting any personally identifiable information, must:
10.15.1.1 Transmit the findings and decisions
of the hearing officer to the State Advisory Council for the Education of
Children with Disabilities; and
10.15.1.2 Make those findings and decisions
available to the public.
10.16 Timelines of hearing.
10.16.1 The Department shall ensure that not
later than 45 days after the expiration of the 30 day period under
34 CFR
300.510(b) and §
10.01.11.2, or the adjusted time
periods described under 34
CFR 300.510(c) and section
10.11.3, -
10.16.1.1 A final decision is reached in the
hearing (unless the hearing officer has extended the timeline); and
10.16.1.2 A copy of the decision is mailed to
each of the parties.
10.16.1.3 Each
hearing must be conducted at a time and place that is reasonably convenient to
the parents and child involved.
10.17 Extension of timelines.
10.17.1 In general, a hearing officer may
grant specific extensions of time beyond forty-five (45) days at the request of
either party to the hearing. Extensions of time may be granted for good cause
shown.
10.17.2 No extension of time
shall be granted by a hearing officer to any party to the hearing requesting
the extension unless accompanied by a written request detailing the specific
need for the extension.
10.17.3 Any
extension of time granted by the hearing officer shall be noted in a written
order, detailing the specific need for the extension, and forwarded by the
hearing officer to the Department within two (2) days of the date of the
decision to grant an extension of the timelines.
10.17.4 Under no circumstance shall a hearing
officer permit any party to waive the application of the forty-five (45)
daytime line.
10.18
Timelines for expedited hearings.
10.18.1 The
SEA 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.
10.18.2 Unless
the parents and the LEA agree in writing to waive the resolution meeting
described in 34 CFR
300.510 or agree to use the mediation process
described in 34 CFR
300.506:
10.18.2.1 A resolution meeting must occur
within seven days of receiving notice of the due process complaint;
and
10.18.2.2 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.
10.19 Impartial hearing officer.
10.19.1 A hearing must not be conducted:
10.19.1.1 By a person who is an employee of
the State education agency or of the local education agency that is involved in
the education or care of the child; or
10.19.1.2 By any person having a personal or
professional interest that would conflict with his objectivity in the
hearing.
10.19.2 A
hearing officer must possess:
10.19.2.1 The
knowledge of, and the ability to understand, the provisions of the Act, Federal
and State regulations and rules pertaining to the Act, and legal
interpretations of the Act by Federal and State courts;
10.19.2.2 The knowledge and ability to
conduct hearings in accordance with appropriate, standard legal practice;
and
10.19.2.3 The knowledge and
ability to render and write decisions in accordance with appropriate, standard
legal practice.
10.19.3
A person who otherwise qualifies to conduct a hearing under this rule is not an
employee of the agency solely because he or she is paid by the agency to serve
as a hearing officer.
10.19.4 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 hearing
officer.
10.20 Authority
of hearing officer.
10.20.1 A hearing officer
has jurisdiction to rule on any matter that pertains to the identification,
evaluation or educational placement of a child with a disability, and the
provision of a free appropriate public education to the child within the
meaning of the IDEA and Ark. Code Ann.
6-41-202, et seq.
10.20.2 The hearing officer shall dismiss a
hearing if:
10.20.2.1 During the opening
remarks, the hearing officer determines that a hearing has been initiated for
reasons other than those under the hearing officer's jurisdiction or authority
relative to the IDEA. The hearing officer must adjourn the proceeding and
dismiss the hearing. It shall be the hearing officer's responsibility, within
five (5) days following the adjournment, to issue an Order of Dismissal, noting
the reason for the adjournment and dismissal of the hearing.
10.20.2.2 During the course of the hearing,
the hearing officer determines that issues being put forth are not under the
jurisdiction or authority of the hearing officer relative to the IDEA. The
hearing officer must adjourn the proceeding and dismiss the hearing. The
hearing officer must inform the State education agency during the five (5) day
period, in the manner noted in section 10.20.2.1.
10.20.2.3 The parties inform the hearing
officer that the case has been settled or that the parties request an extension
of time in order to reach a settlement agreement. The hearing officer shall not
continue a case for the purpose of allowing the parties additional time to
reach a negotiated settlement. The hearing officer shall forthwith dismiss the
case without prejudice to the rights of the parties to file a new request for a
hearing. A written Order of Dismissal shall be rendered within five (5) days
following the dismissal of the hearing.
10.20.3 In the event that a party to a
hearing becomes disruptive, disorderly, abusive, or disrespectful to the
hearing officer or to any other party to the hearing, the hearing officer shall
use reasonable means available, including dismissal, to maintain order in the
conduct of the hearing.
10.20.4 In
the event that the child is represented by a surrogate parent, the hearing
officer shall require that information concerning the surrogate parent's
assignment and training shall be introduced into the record following the
opening remarks. It shall not be the responsibility of the hearing officer to
determine the fitness of a surrogate parent during the hearing.
10.20.5 In a hearing conducted pursuant to
these procedures, a hearing officer may:
10.20.5.1 Order a change in the placement of
a child with a disability to an appropriate interim educational setting for not
more than forty-five (45) days if the hearing officer, in an expedited due
process hearing, determines that maintaining the current placement of the child
is substantially likely to result in injury to the child or others;
or
10.20.5.2 Return the child with
a disability to the placement from which the child was removed if the hearing
officer determines that the removal was a violation of
34 CFR
300.530 or that the child's behavior was a
manifestation of the child's disability.
10.20.5.3 Determines that the interim
alternative educational setting that is proposed by LEA/ public agency
personnel will:
10.20.5.3.a Enable the child
to continue to participate in the general education curriculum, although in
another setting, and to progress toward meeting the goals set out in the
child's IEP, and
10.20.5.3.b
Receive, as appropriate, a functional behavioral assessment, and behavioral
intervention services and modifications, that are designed to address the
behavior violation so that it does not recur.
10.20.5.4 The procedures under sections
10.20.5.1 and 10.20.5.2 of this rule may be repeated, if the LEA determines
that returning the child to the original placement is substantially likely to
result in injury to the child or to others.
10.20.6 The hearing officer shall have the
power under Ark. Code Ann.
6-41-216 to issue subpoenas and to
bring before him as a witness any person in this state.
10.20.6.1 The hearing officer shall issue a
subpoena upon the request of a party to a pending proceeding over which the
hearing officer is assigned and actually presiding.
10.20.6.2 The subpoena shall be directed to
the sheriff of the county where the witness resides or may be found.
10.20.6.3 The subpoena may require the
witness to bring with him any book, writing, or other thing under his control
which he is required by law to produce.
10.20.6.4 Service of the subpoena shall be in
the manner provided for the service of subpoenas in civil cases under the
Arkansas Rules of Civil Procedure.
10.20.6.5 The hearing officer shall have
jurisdiction to issue a subpoena to compel the attendance of witnesses only in
hearings over which he is actually presiding.
10.20.6.6 In the event a witness shall have
been served with a subpoena as herein provided for and fails to attend the
hearing in obedience to the subpoena or otherwise comply with it, the hearing
officer may apply to the circuit court of the county wherein the hearing
officer is holding the hearing for an order commanding the arrest of the
witness and directing that the witness be brought before the court.
10.20.7 The hearing officer shall
have the authority to sequester witnesses on his own motion or on that of any
party to the proceeding.
10.20.8
The hearing officer shall have the authority to restrict the number of
witnesses and limit the length of their testimony.
10.20.9 The hearing officer shall be without
authority to retain jurisdiction over a case once a final order is entered and
shall not attempt to reopen a case once the final order is entered.
10.21 Disclosure by the hearing
officer.
10.21.1 The hearing officer shall
disclose all personal or professional activities or relationships involving any
party to the hearing. The hearing officer also shall disclose personal or
professional activities or relationships with the public agency, the officer's
representation of students of the local educational agency not the subject of
the hearing or representation of the local education agency or other business
related thereto.
10.21.2 If any
party to the hearing objects to the assigned hearing officer, the objection
shall be presented to the hearing officer in writing not less than five (5)
days prior to the date of the hearing.
10.21.3 If any party to the hearing objects
to the participation of the assigned hearing officer after disclosure, the
hearing officer shall use discretion in determining whether to disqualify
himself from the proceedings.
10.21.4 Not later than two (2) days prior to
the date of the hearing, the hearing officer shall issue a written ruling on
any objection to the hearing officer's participation.
10.21.5 The written objection of any party to
the participation of the hearing officer and the subsequent written ruling by
the hearing officer shall preserve the issue for appellate review. No objection
to the participation of a hearing officer shall be raised at the hearing
itself.
10.22 Conflict
of interest.
10.22.1 The hearing officer shall
disqualify himself from presiding over any case in which he has a personal or
professional interest and which might conflict with the hearing officer's
objectivity in the hearing. The Department shall appoint a replacement hearing
officer pursuant to the IDEA and these procedures.
10.23 Disqualification of hearing officers -
impartiality at issue.
10.23.1 It shall be the
responsibility of the State education agency to ensure that the hearing officer
assigned to a particular hearing is unbiased. The public agency, the parent(s),
or their respective counsel/ representative may challenge the assignment of a
particular hearing officer only on the basis of alleged bias. Such a challenge
must be stated in writing and must be accompanied by written evidence to
support the allegation that the hearing officer is biased and, therefore, is
not impartial. In the event that the allegation of bias is substantiated, it
shall be the responsibility of the State education agency to assign a different
hearing officer to the case.
10.23.2 Any challenge to the impartiality of
an assigned hearing officer must occur within seven (7) days after notification
to the parties to the hearing of the assignment of a hearing officer.
10.24 Impartiality; Ex parte
communications.
10.24.1 The hearing officer
shall conduct the hearing in a manner that demonstrates fairness to all
parties.
10.24.2 No hearing officer
shall engage in ex parte communications with any party during any stage of the
hearing process.
10.25
Discovery
10.25.1 Pre-hearing discovery shall
be limited to the production of documentary evidence and the disclosure of the
names, addresses and telephone numbers of witnesses. The hearing officer shall
not grant any request for depositions or interrogatories by the
parties.
10.26
Pre-hearing conference.
10.26.1 The hearing
officer may order a pre-hearing conference to determine the relevant issues to
the hearing and to address evidentiary matters including, but not limited to:
10.26.1.1 The relevance of documentary
evidence;
10.26.1.2 The relevance
of testimonial evidence; or
10.26.1.3 The limitation of repetitive
evidence, including the testimony of witnesses.
10.26.2 The hearing officer may, at his
discretion, limit the number of witnesses, the length of direct and cross-
examination, and the number and type of documents used as evidence in the
hearing.
10.26.3 Within five (5)
days of the date a request for hearing is filed, any party to a hearing may
request a pre-hearing conference to determine the relevant issues and to
address evidentiary matters.
10.26.4 The hearing officer shall inform the
parties of their responsibility to provide notice to the hearing officer at
least 24 hours before the case is set for hearing as to the status of the case.
Failure to contact the hearing officer as required may result in dismissal of
the case without prejudice. In the event a change of status occurs thereafter,
the parties shall forthwith notify the hearing officer of the change.
10.27 Pre-hearing briefs
10.27.1 The hearing officer may require the
parties to a hearing to submit pre-hearing briefs stating the issues to be
addressed and the arguments to be presented in the hearing. Pre-hearing briefs
shall be submitted to the hearing officer not less than three (3) days prior to
the date of the hearing.
10.28 Conduct of the hearing - issues to be
addressed.
10.28.1 Whenever a due process
complaint is received, under 34 CFR 300.507 or
300.532 the parents or the LEA
involved in the dispute must have an opportunity for an impartial due process
hearing.
10.28.2 Pursuant to the
information contained in the hearing request and obtained from the parties at a
pre- hearing conference and from pre-hearing briefs, the hearing officer may
narrow the scope of the hearing at the outset of the hearing. If it is
determined by the hearing officer that there are no issues that may be
addressed through an impartial due process hearing pursuant to the IDEA, the
hearing officer shall dismiss the hearing.
10.29 Conduct of the hearing - burden of
proof; opening statements
10.29.1 At the
beginning of the hearing, the hearing officer shall determine which party bears
the burden of proof in regard to the particular issues raised.
10.29.2 The decision to allow opening
statements is at the discretion of the hearing officer.
10.30 Conduct of the hearing - length of
presentation.
10.30.1 A hearing officer may
limit the length of any presentation in order to proceed with the hearing in an
expeditious manner.
10.31 Conduct of the hearing - closing
arguments; post-hearing
10.31.1 At the
conclusion of the presentation of the evidence, the hearing officer may allow
each party to the hearing to present closing arguments. Closing arguments by
any party shall not exceed thirty (30) minutes in length.
10.31.2 In lieu of closing arguments or in
addition thereto, at the discretion of the hearing officer, the hearing officer
may require each party to simultaneously submit a post-hearing brief,
summarizing the party's arguments. In the event that a post-hearing brief is
required, the brief shall be submitted to the hearing officer not more than
seven (7) days following the adjournment of the hearing.
10.32 Conduct of the hearing - evidence
generally.
10.32.1 The Arkansas Rules of
Evidence shall not be strictly applied to impartial due process hearings except
as otherwise noted herein.
10.32.2
Evidence and testimony shall be excluded if:
10.32.2.1 It is documentary evidence and it
has not been included in the documentary evidence volume;
10.32.2.2 It is documentary evidence and it
has not been disclosed to the opposing party at least five (5) business days
before the hearing or two (2) business days prior to an expedited
hearing;
10.32.2.3 It is cumulative
or not relevant;
10.32.2.4 It
represents the legal conclusion of a witness; or
10.32.2.5 It is speculation on the part of
the witness.
10.32.3 The
hearing officer shall exclude cumulative, irrelevant or unnecessary testimony
or evidence, even in the absence of an objection by any party to the
hearing.
10.32.4 The hearing
officer may exclude, at his discretion, other evidence given a proper basis for
exclusion.
10.33 Conduct
of the hearing - documentary evidence.
10.33.1
Prior to the date of the hearing, the parties to the hearing shall meet for the
purpose of reviewing the documentary evidence to be submitted by each party at
the hearing. The documentary evidence should be assembled for the purpose of
the hearing in the following order:
10.33.1.1
Joint exhibits or exhibits to which there is no objection;
10.33.1.2 Petitioner's exhibits to which the
Respondent objects;
10.33.1.3
Respondent's exhibits to which the Petitioner objects;
10.33.1.4 Petitioner's evidence introduced
through a sworn affidavit; and
10.33.1.5 Respondent's evidence introduced
through a sworn affidavit.
10.33.2 Documentary evidence should be
assembled in chronological order with each separate document tabbed and
numbered consecutively.
10.33.3
Separate and complete volumes of the documentary evidence shall be assembled
and placed in a three- ring binder(s) and distributed to all parties to the
hearing.
10.33.4 Documents not
contained in the documentary evidence volume shall be excluded from the hearing
by the hearing officer, unless their admission is agreed to by all
parties.
10.33.5 Documentary
evidence shall be provided to the hearing officer in the required format no
later than the beginning of the hearing, unless directed otherwise by the
hearing officer.
10.33.5.1 Joint exhibits and
testimony presented through a sworn affidavit shall be admitted as evidence
when the hearing officer acknowledges receipt of the documentary evidence
volume on the record.
10.33.5.2
Objections by any party to documentary evidence pursuant to section 10.32.2.2
of these rules shall be considered and ruled on at the time the documentary
evidence is received by the hearing officer.
10.33.5.3 Objections by any party to
documentary evidence pursuant to sections 10.33.1.2 and 10.33.1.3 of these
rules shall be considered and ruled on at any appropriate stage in the
hearing.
10.34 Conduct of hearing - use of sworn
affidavits.
10.34.1 If no party to the hearing
objects, the testimony of witnesses, including expert witnesses, may be
presented through the use of sworn affidavits.
10.34.2 A witness, including an expert
witness, who has testified by sworn affidavit can be subpoenaed by any party
for the purpose of direct or cross-examination.
10.35 Conduct of the hearing - proffer of
evidence.
10.35.1 Any party to a hearing may
submit a written proffer of evidence for the purpose of preserving any issue
for appeal. A proffer of evidence shall contain:
10.35.1.1 A statement of the evidence and
testimony that would have been presented had the hearing officer allowed its
admission; and
10.35.1.2 A
statement signed by the party or the party's representative asserting that the
contents of the proffer are truthful and that the evidence was offered in good
faith.
10.35.2 Any
proffer of evidence must be received by the hearing officer prior to the
issuance of the final order in the hearing. Any proffer of evidence not
received prior to the issuance of the final order in the hearing will not be
made part of the hearing record.
10.36 Hearing decisions.
10.36.1 After the presentation of the
evidence and, if allowed, closing arguments of the parties, the hearing officer
shall rule orally on issues, if any, for which the hearing officer has reached
a decision.
10.36.2 Within the
timeline for regular and expedited hearings (unless extensions have been
granted), and after the conclusion of the hearing, the hearing officer shall
issue a written judgment containing:
10.36.2.1
Findings of fact;
10.36.2.2 The
decision(s); and
10.36.2.3 Any
orders resulting from the hearing decision.
10.36.3 The findings of fact shall be limited
to the facts:
10.36.3.1 That were supported by
the evidence; and
10.36.3.2 Upon
which the hearing officer based any portion of the decision.
10.36.4 Any orders resulting from
the hearing decision shall-
10.36.4.1 Be
issued in concise language;
10.36.4.2 Address any violations noted in the
hearing decision; and
10.36.4.3
Mandate definite action to remedy any violations.
10.36.5 In no event shall a hearing officer
retain jurisdiction over the parties to the hearing after the hearing decision
has been issued.
10.36.6 Decision
of hearing officer on the provision of FAPE
10.36.6.1 Subject to section 10.36.6.2 of
this rule, a hearing officer's determination of whether a child received FAPE
must be based on substantive grounds.
10.36.6.2 In matters alleging a procedural
violation, a hearing officer may find that a child did not receive a FAPE only
if the procedural inadequacies:
10.36.6.2.a
Impeded the child's right to a FAPE;
10.36.6.2.b 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
10.36.6.2.c Caused a deprivation of
educational benefit.
10.36.7 Nothing in this section shall be
construed to preclude a hearing officer from ordering an LEA to comply with
procedural requirements under
34 CFR
300.500 through
300.536.
10.37 Hearing decisions - expedited hearings.
10.37.1 After the closing arguments of the
parties, the hearing officer shall rule orally on all issues properly presented
in the expedited hearing.
10.37.2
Within ten (10) school days after the conclusion of the expedited hearing, the
hearing officer shall issue a written decision.
10.38 Hearing decisions - finality of
decision.
10.38.1 Any party aggrieved by the
findings and decision made under
34 CFR
300.507 through
300.513 or
300.530 through
300.534 who does not have the
right to an appeal under 34
CFR 300.514(b), and any
party aggrieved by the findings and decision under
34 CFR
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
34 CFR
300.507 or
34 CFR
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.
10.39 Time limitation.
10.39.1 The party bringing the action shall
have ninety (90) days from the date of the decision of the hearing officer to
file a civil action.
10.40 Additional requirements.
10.40.1 In any action brought under this
section the court:
10.40.1.1 Receives the
records of the administrative proceedings;
10.40.1.2 Hears additional evidence at the
request of a party; and
10.40.1.3
Basing its decision on the preponderance of the evidence, grants the relief
that the court determines to be appropriate.
10.41 Jurisdiction of district courts.
10.41.1 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.
10.42 Rule of construction.
10.42.1 Nothing in this rule 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 34 CFR
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.
10.43
Child's status during proceedings.
10.43.1
Status during hearings on any of the matters relating to the identification,
evaluation or educational placement of a child with a disability, or the
provision of FAPE to the child:
10.43.1.1
Except as provided for in 34
CFR 300.533 and section
11.06, during the pendency of any
administrative or judicial proceeding regarding a due process complaint notice
requesting a due process hearing under
34 CFR
300.507 and these rules, unless the State or
local agency and the parents of the child agree otherwise, the child involved
in the complaint must remain in his current educational placement.
10.43.1.2 If the complaint involves an
application for initial admission to public school, the child, with the consent
of the parents, must be placed in the public school until the completion of all
the proceedings.
10.43.1.3 If the
decision of a hearing officer in a due process hearing agrees with the child's
parents that a change of placement is appropriate, that placement must be
treated as an agreement between the State or local agency and the parents for
purposes of section 10.43.1.1 of this rule.
10.43.1.4 If the complaint involves an
application for initial services under this rule from a child who is
transitioning from Part C of the Act to Part B and is no longer eligible for
Part C services because the child has turned three, the public agency is not
required to provide the Part C services that the child had been receiving. If
the child is found eligible for special education and related services under
Part B and the parent consents to the initial provision of special education
and related services under 34 CFR
300.300(b), then the public
agency must provide those special education and related services that are not
in dispute between the parent and the public agency.
10.43.2 Status during expedited hearings or
appeals related to matters of discipline, including parent challenge to the
interim alternative educational setting or manifestation determination
decision, or an LEA that believes that maintaining the current placement of the
child is substantially likely to result in injury to the child or others or
continuing it in the interim alternative education setting:
10.43.2.1 When an appeal under
34 CFR
300.532 has been made by either the parent or
LEA, the child must remain in the interim alternative educational setting
pending the decision of the hearing officer or until the expiration of the time
period specified in 300.530(c) or (g), whichever occurs first, unless the
parent and the SEA or LEA agree otherwise.
Disclaimer: These regulations may not be the most recent version. Arkansas may have more current or accurate information. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or the information linked to on the state site. Please check official sources.
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