Indiana Administrative Code
Title 511 - INDIANA STATE BOARD OF EDUCATION
Article 7 - SPECIAL EDUCATION
Rule 45 - Complaints, Mediation, and Due Process Procedures
Section 45-7 - Conducting the hearing
Current through September 27, 2023
Authority: IC 20-19-2-8; IC 20-19-2-16
Affected: IC 4-21.5-3; IC 20-19-2; IC 20-35
(a) If the due process hearing is requested by the public agency:
(b) If the due process hearing is requested by a parent, the hearing shall be conducted, a final written decision reached, and a copy of the written decision served electronically or mailed to each of the parties not later than forty-five (45) calendar days after:
(c) An independent hearing officer may grant specific extensions of time beyond the forty-five (45) day timeline at the request of either party. Any extension of time granted by the independent hearing officer shall be:
(d) Any party to a due process hearing has the right to the following:
(e) A parent, or the parent's representative, involved in a due process hearing has the right to the following:
(f) The independent hearing officer has the discretion and authority to do the following:
(g) The party requesting the due process hearing may not raise issues at the hearing that were not raised in the due process hearing request unless the other party agrees otherwise. However, nothing in this rule shall be construed to preclude a party from filing a separate due process hearing request on an issue separate from the due process hearing already requested.
(h) At least five (5) business days prior to the hearing, each party shall 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. A hearing officer may bar any party that fails to comply with this subsection from introducing the relevant evaluation or recommendation at the hearing without consent of the other party.
(i) The party requesting the due process hearing:
(j) The independent hearing officer shall render a written or, at the option of the parents, an electronic decision. The decision shall be dated and must include the following:
(k) The decision of the independent hearing officer shall be based solely upon the oral and written evidence presented at the hearing. In addition, an independent hearing officer's determination of whether a student received a free appropriate public education must be based on substantive grounds. In matters alleging a procedural violation, an independent hearing officer may find that a student did not receive a free appropriate public education only if the procedural inadequacies:
(l) Nothing in subsection (k) shall be construed to preclude an independent hearing officer from ordering a public agency to comply with procedural requirements under this rule and 511 IAC 7-37.
(m) The independent hearing officer shall serve the decision electronically to parties in the electronic filing system. If a party is not accessing the electronic filing system, the independent hearing officer shall mail a copy of the hearing decision via certified mail, return receipt requested, to each party involved in the hearing. The independent hearing officer's decision is a final order unless a petition for judicial review is filed as described in section 9 of this rule.
(n) Any party involved shall have thirty (30) calendar days from the date the independent hearing officer's written decision is received to:
(o) A verbatim transcript of the hearing shall be made. The independent hearing officer is responsible for:
The transcript shall be made available by the division of special education at no cost and upon the request of any party to the hearing at the conclusion of the hearing.
(p) Due process hearings under this section shall be:
(q) The public agency shall bear all costs pertaining to the conduct of a hearing whether or not a hearing is ultimately held, including transcription and hearing officer fees and expenses. Funds under Part B of the Individuals with Disabilities Education Act may be used to pay the costs of conducting the hearing, but the funds shall not be used to pay attorney's fees or costs of a party.
(r) Class action due process hearings are not permitted. If the parties and the independent hearing officer agree to a hearing involving two (2) or more students, a separate decision with specific findings of fact, conclusions of law, and orders, if necessary, shall be written for each student.
(s) If the issue of the proceedings involves initial enrollment in a public school, the student, with the consent of the parent, shall be placed in the public school program until the completion of the proceedings. If the parties cannot agree to the student's placement during the proceedings, the independent hearing officer shall determine the student's placement as a preliminary matter to the conduct of the due process hearing.
(t) If the issue of the proceedings involves initial enrollment in a public school for a student who is transitioning from Part C of the Individuals with Disabilities Education Act to Part B of the act, and the student is no longer eligible for Part C services because the student has become three (3) years of age, the public agency is not required to provide the Part C services that the child had been receiving. If the:
(u) Except as provided in 511 IAC 7-44-8, the student shall remain in the student's current educational placement during a due process hearing or judicial proceeding, unless the parties agree otherwise. If the:
(v) The division of special education shall maintain the following for the duration of the hearing and any subsequent civil action:
(w) The division of special education shall, after deleting personally identifiable information from copies of the due process hearing findings, conclusions, and orders, do the following:
Indiana State Board of Education; 511 IAC 7-45-7; filed Jul 14, 2008, 1:24 p.m.: 20080813-IR-511080112FRA; filed Dec 3, 2009, 1:50 p.m.: 20091230-IR-511090057FRA; filed May 25, 2010, 8:19 a.m.: 20100623-IR-511090795FRA; errata filed Jun 29, 2010, 3:14 p.m.: 20100714-IR-511090795ACA
Readopted filed 11/6/2014, 3:23 p.m.: 20141203-IR-511140382RFA
Filed 3/18/2019, 2:33 p.m.: 20190417-IR-511180153FRA