Current through Register Vol. 40, No. 16, March 25, 2024
A.
The Virginia Department of Education provides for an impartial special
education due process hearing system to resolve disputes between parents and
local educational agencies with respect to any matter relating to the: (§
22.1-214 of the Code of Virginia;
34 CFR
300.121 and
34 CFR
300.507 through 34 CFR 300.518)
1. Identification of a child with a
disability, including initial eligibility, any change in categorical
identification, and any partial or complete termination of special education
and related services;
2. Evaluation
of a child with a disability (including disagreements regarding payment for an
independent educational evaluation);
3. Educational placement and services of the
child; and
4. Provision of a free
appropriate public education to the child.
B. The Virginia Department of Education uses
the impartial hearing officer system that is administered by the Supreme Court
of Virginia.
C. The Virginia
Department of Education uses the list of hearing officers maintained by the
Office of the Executive Secretary of the Supreme Court of Virginia and its
Rules of Administration for the names of individuals to serve as special
education hearing officers. In accordance with the Rules of Administration, the
Virginia Department of Education provides the Office of the Executive Secretary
annually the names of those special education hearing officers who are
recertified to serve in this capacity.
D. The Virginia Department of Education
establishes procedures for:
1. Providing
special education hearing officers specialized training on the federal and
state special education law and regulations, as well as associated laws and
regulations impacting children with disabilities, knowledge of disabilities and
special education programs, case law, management of hearings, and decision
writing.
2. Establishing the number
of special education hearing officers who shall be certified to hear special
education due process cases.
a. The Virginia
Department of Education shall review annually its current list of special
education hearing officers and determine the recertification status of each
hearing officer.
b. Notwithstanding
anything to the contrary in this subdivision, individuals on the special
education hearing officers list on July 7, 2009, shall be subject to the
Virginia Department of Education's review of recertification status based on
past and current performance.
c.
The ineligibility of a special education hearing officer continuing to serve in
this capacity shall be based on the factors listed in subdivision 3 c of this
subsection.
3.
Evaluation, continued eligibility, and disqualification requirements of special
education hearing officers:
a. The Virginia
Department of Education shall establish procedures for evaluating special
education hearing officers.
b. The
first review of the recertification status of each special education hearing
officer will be conducted within a reasonable time following July 7,
2009.
c. In considering whether a
special education hearing officer will be certified or recertified, the
Virginia Department of Education shall determine the number of hearing officers
needed to hear special education due process cases, and consider matters
related to the special education hearing officer's adherence to the factors in
subdivision H 5 of this section, as well as factors involving the special
education hearing officer's:
(1) Issuing an
untimely decision, or failing to render decision within regulatory time
frames;
(2) Unprofessional
demeanor;
(3) Inability to conduct
an orderly hearing;
(4) Inability
to conduct a hearing in conformity with the federal and state laws and
regulations regarding special education;
(5) Improper ex parte contacts;
(6) Violations of due process
requirements;
(7) Mental or
physical incapacity;
(8)
Unjustified refusal to accept assignments;
(9) Failure to complete training requirements
as outlined by the Virginia Department of Education;
(10) Professional disciplinary action;
or
(11) Issuing a decision that
contains:
(a) Inaccurate appeal rights of the
parents; or
(b) No controlling case
or statutory authority to support the findings.
d. When a special education hearing officer
has been denied certification or recertification based on the factors in
subdivision 3 c of this section, the Virginia Department of Education shall
notify the special education hearing officer and the Office of the Executive
Secretary of the Supreme Court of Virginia that the hearing officer is no
longer certified to serve as a special education hearing officer.
Upon notification of denial of certification or
recertification, the hearing officer may, within 10 calendar days of the
postmark of the letter of notification, request of the Superintendent of Public
Instruction, or his designee, reconsideration of the decision. Such request
shall be in writing and shall contain any additional information desired for
consideration. The Superintendent of Public Instruction, or his designee, shall
render a decision within 10 calendar days of receipt of the request for
reconsideration. The Virginia Department of Education shall notify the hearing
officer and the Office of the Executive Secretary of the Supreme Court of
Virginia of its decision.
4. Reviewing and analyzing the decisions of
special education hearing officers, and the requirement for special education
hearing officers to reissue decisions, relative to correct use of citations,
readability, and other errors such as incorrect names or conflicting data, but
not errors of law that are reserved for appellate review.
E. Filing the request for a due process
hearing. If any of the following provisions are challenged by one of the
parties in a due process hearing, the special education hearing officer
determines the outcome of the case going forward.
1. The request for due process shall allege a
violation that happened not more than two years before the parent(s) or the
local educational agency knew or should have known about the alleged action
that forms the basis of the request for due process. This timeline does not
apply if the request for a due process hearing could not be filed because: (
34 CFR
300.507(a) and
34 CFR
300.511(e) and (f) )
a. The local educational agency specifically
misrepresented that it had resolved the issues identified in the request;
or
b. The local educational agency
withheld information that it was required to provide under the IDEA.
2. A local educational agency may
initiate a due process hearing to resolve a disagreement when the parent(s)
withholds or refuses consent for an evaluation or an action that requires
parental consent to provide services to a student who has been identified as a
student with a disability or who is suspected of having a disability. However,
a local educational agency may not initiate a due process hearing to resolve
parental withholding or refusing consent for the initial provision of special
education to the child. ( 34
CFR 300.300(a)(3)(i) and
34 CFR
300.300(b)(3) )
3. In circumstances involving disciplinary
actions, the parent(s) of a student with a disability may request an expedited
due process hearing if the parent(s) disagrees with: (
34 CFR
300.532 )
a.
The manifestation determination regarding whether the child's behavior was a
manifestation of the child's disability; or
b. Any decision regarding placement under the
disciplinary procedures.
4. In circumstances involving disciplinary
actions, the local educational agency may request an expedited hearing if the
school division believes that maintaining the current placement of the child is
substantially likely to result in injury to the child or others. (
34 CFR
300.532 )
F. Procedure for requesting a due process
hearing. ( 34 CFR
300.504(a)(2),
34 CFR
300.507,
34 CFR
300.508 and 34 CFR 300.511)
1. A request for a hearing shall be made in
writing to the Virginia Department of Education. A copy of that request shall
be delivered contemporaneously by the requesting party to the other party.
a. If the local educational agency initiates
the due process hearing, the local educational agency shall advise the
parent(s) and the Virginia Department of Education in writing of this
action.
b. If the request is
received solely by the Virginia Department of Education, the Virginia
Department of Education shall immediately notify the local educational agency
by telephone or by facsimile and forward a copy of the request to the local
educational agency as soon as reasonably possible, including those cases where
mediation is requested.
c. The
request for a hearing shall be kept confidential by the local educational
agency and the Virginia Department of Education.
2. A party may not have a due process hearing
until that party or the attorney representing the party files a notice that
includes:
a. The name of the child;
b. The address of the residence of the child
(or available contact information in the case of a homeless child);
c. The name of the school the child is
attending;
d. A description of the
nature of the child's problem relating to the proposed or refused initiation or
change, including facts relating to the problem; and
e. A proposed resolution of the problem to
the extent known and available to the parent(s) at the time of the
notice.
3. The due
process notice shall be deemed sufficient unless the party receiving the notice
notifies the special education hearing officer and the other party in writing
that the receiving party believes the notice has not met the requirements
listed in subdivision 2 of this subsection.
4. The party receiving the notice may
challenge the sufficiency of the due process notice by providing a notification
of the challenge to the special education hearing officer within 15 calendar
days of receipt the due process request. A copy of the challenge shall be sent
to the other party and the Virginia Department of Education.
5. Within five calendar days of receipt of
the notification challenging the sufficiency of the due process notice, the
special education hearing officer shall determine on the face of the notice
whether the notification meets the requirements in subdivision 2 of this
subsection.
6. The special
education hearing officer has the discretionary authority to permit either
party to raise issues at the hearing that were not raised in the notice by the
party requesting the due process hearing in light of particular facts and
circumstances of the case.
7. The
local educational agency shall upon receipt of a request for a due process
hearing, inform the parent(s) of the availability of mediation described in
8VAC20-81-190 and of any free or
low-cost legal and other relevant services available in the area. The local
educational agency also shall provide the parent(s) with a copy of the
procedural safeguards notice upon receipt of the parent's(s') first request for
a due process hearing in a school year.
G. Amendment of due process notice. (
34 CFR
300.508(d)(3) )
1. A party may amend its due process notice
only if:
a. The other party consents in
writing to such amendment and is given the opportunity to resolve the complaint
through a resolution meeting; or
b.
The special education hearing officer grants permission, except that the
special education hearing officer may only grant such permission at any time
not later than five calendar days before a due process hearing
occurs.
2. The
applicable timeline for a due process hearing under this part shall begin again
at the time the party files an amended notice, including the timeline for
resolution sessions.
H.
Assignment of the special education hearing officer. (
34 CFR
300.511 )
1.
Within five business days of receipt of the request for a nonexpedited hearing
and three business days of receipt of the request for an expedited hearing:
a. The local educational agency shall contact
the Supreme Court of Virginia for the appointment of the special education
hearing officer.
b. The local
educational agency contacts the special education hearing officer to confirm
availability, and upon acceptance, notifies the special education hearing
officer in writing, with a copy to the parent(s) and the Virginia Department of
Education of the appointment.
2. Upon request, the Virginia Department of
Education shall share information on the qualifications of the special
education hearing officer with the parent(s) and the local educational
agency.
3. Either party has five
business days after notice of the appointment is received or the basis for the
objection becomes known to the party to object to the appointment by presenting
a request for consideration of the objection to the special education hearing
officer.
a. If the special education hearing
officer's ruling on the objection does not resolve the objection, then within
five business days of receipt of the ruling the party may proceed to file an
affidavit with the Executive Secretary of the Supreme Court of Virginia. The
failure to file a timely objection serves as a waiver of objections that were
known or should have been known to the party.
b. The filing of a request for removal or
disqualification shall not stay the proceedings or filing requirements in any
way except that the hearing may not be conducted until the Supreme Court of
Virginia issues a decision on the request in accordance with its
procedures.
c. If a special
education hearing officer recuses himself or is otherwise disqualified, the
Supreme Court of Virginia shall ensure that another special education hearing
officer is promptly appointed.
4. A hearing shall not be conducted by a
person who:
a. Has a personal or professional
interest that would conflict with that person's objectivity in the
hearing;
b. Is an employee of the
Virginia Department of Education or the local educational agency that is
involved in the education and care of the child. A person who otherwise
qualifies to conduct a hearing is not an employee of the agency solely because
he is paid by the agency to serve as a special education hearing officer;
or
c. Represents schools or parents
in any matter involving special education or disability rights, or is an
employee of any parent rights agency or organization, or disability rights
agency or organization.
5. A special education hearing officer shall:
a. 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;
b. Possess the knowledge
and ability to conduct hearings in accordance with appropriate, standard legal
practice; and
c. Possess the
knowledge and ability to render and write decisions in accordance with
appropriate, standard legal practice.
I. Duration of the special education hearing
officer's authority.
1. The special education
hearing officer's authority begins with acceptance of the case
assignment.
2. The special
education hearing officer has authority over a due process proceeding until:
a. Issuance of the special education hearing
officer's decision; or
b. The
Supreme Court of Virginia revokes such authority by removing or disqualifying
the special education hearing officer.
J. Child's status during administrative or
judicial proceedings. ( 34
CFR 300.518;
34 CFR
300.533 )
1.
Except as provided in
8VAC20-81-160, during the pendency
of any administrative or judicial proceeding, the child shall remain in the
current educational placement unless the parent(s) of the child and local
educational agency agree otherwise;
2. If the proceeding involves an application
for initial admission to public school, the child, with the consent of the
parent(s), shall be placed in the public school until the completion of all the
proceedings;
3. If the decision of
a special education hearing officer agrees with the child's parent(s) that a
change of placement is appropriate, that placement shall be treated as an
agreement between the local educational agency and the parent(s) for the
purposes of subdivision 1 of this section;
4. The child's placement during
administrative or judicial proceedings regarding a disciplinary action by the
local educational agency shall be in accordance with
8VAC20-81-160;
5. The child's placement during
administrative or judicial proceedings regarding a placement for noneducational
reasons by a Comprehensive Services Act team shall be in accordance with
8VAC20-81-150; or
6. If the proceeding involves an application
for initial services under Part B of the Act from Part C and the child is no
longer eligible for Part C services because the child has turned three, the
school division 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, the school division shall provide
those special education and related services that are not in dispute between
the agency and the school division.
K. Rights of parties in the hearing. (§
22.1-214C of the Code of Virginia;
34 CFR
300.512 )
1.
Any party to a hearing has the right to:
a. Be
accompanied and advised by counsel and by individuals with special knowledge or
training with respect to the problems of children with disabilities;
b. Present evidence and confront,
cross-examine, and request that the special education hearing officer compel
the attendance of witnesses;
c.
Move that the special education hearing officer 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;
d. Obtain a written or, at the option of the
parent(s), electronic, verbatim record of the hearing; and
e. Obtain written or, at the option of the
parent(s), electronic findings of fact and decisions.
2. Additional disclosure of information shall
be given as follows:
a. At least five business
days prior to a 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; and
b. A special education hearing officer may
bar any party that fails to comply with subdivision 2 a of this subsection from
introducing the relevant evaluation or recommendation at the hearing without
the consent of the other party.
3. Parental rights at hearings.
a. A parent(s) involved in a hearing shall be
given the right to:
(1) Have the child who is
the subject of the hearing present; and
(2) Open the hearing to the public.
b. The record of the hearing and
the findings of fact and decisions shall be provided at no cost to the
parent(s), even though the applicable appeal period has expired.
L. Responsibilities of
the Virginia Department of Education. The Virginia Department of Education
shall: ( 34 CFR
300.513(d),
34 CFR
300.509 and 34 CFR 300.511)
1. Maintain and monitor the due process
hearing system and establish procedures for its operation;
2. Ensure that the local educational agency
discharges its responsibilities in carrying out the requirements of state and
federal statutes and regulations;
3. Develop and disseminate a model form to be
used by the parent(s) to give notice in accordance with the contents of the
notice listed in subdivision F 2 of this section;
4. Maintain and ensure that each local
educational agency maintains a list of persons who serve as special education
hearing officers. This list shall include a statement of the qualifications of
each special education hearing officer;
5. Provide findings and decisions of all due
process hearings to the state special education advisory committee and to the
public after deleting any personally identifiable information;
6. Review and approve implementation plans
filed by local educational agencies pursuant to hearing officer decisions in
hearings that have been fully adjudicated; and
7. Ensure that noncompliance findings
identified through due process or court action are corrected as soon as
possible, but in no case later than one year from identification.
M. Responsibilities of the parent.
In a due process hearing, the parent(s) shall: (
34 CFR
300.512 )
1.
Decide whether the hearing will be open to the public;
2. Make timely and necessary responses to the
special education hearing officer personally or through counsel or other
authorized representatives;
3.
Assist in clarifying the issues for the hearing and participate in the
pre-hearing conference scheduled by the special education hearing
officer;
4. Provide information to
the special education hearing officer to assist in the special education
hearing officer's administration of a fair and impartial hearing;
5. Provide documents and exhibits necessary
for the hearing within required timelines; and
6. Comply with timelines, orders, and
requests of the special education hearing officer.
N. Responsibilities of the local educational
agency. The local educational agency shall: (
34 CFR
300.504,
34 CFR
300.506,
34 CFR
300.507 and 34 CFR 300.511)
1. Maintain a list of the persons serving as
special education hearing officers. This list shall include a statement of the
qualifications of each special education hearing officer;
2. Upon request, provide the parent(s) a form
for use to provide notice that they are requesting a due process
hearing;
3. Provide the parent(s) a
copy of their procedural safeguards upon receipt of the parent's(s') first
request for a due process hearing in a school year;
4. Inform the parent(s) at the time the
request is made of the availability of mediation;
5. Inform the parent(s) of any free or
low-cost legal and other relevant services if the parent(s) requests it, or
anytime the parent(s) or the local educational agency initiates a
hearing;
6. Assist the special
education hearing officer, upon request, in securing the location,
transcription, and recording equipment for the hearing;
7. Make timely and necessary responses to the
special education hearing officer;
8. Assist in clarifying the issues for the
hearing and participate in the pre-hearing conference scheduled by the special
education hearing officer;
9. Upon
request, provide information to the special education hearing officer to assist
in the special education hearing officer's administration of a fair and
impartial hearing;
10. Provide
documents and exhibits necessary for the hearing within required
timelines;
11. Comply with
timelines, orders, and requests of the special education hearing
officer;
12. Maintain a file, which
is a part of the child's scholastic record, containing communications,
exhibits, decisions, and mediation communications, except as prohibited by laws
or regulations;
13. Forward all
necessary communications to the Virginia Department of Education and parties as
required;
14. Notify the Virginia
Department of Education when a special education hearing officer's decision has
been appealed to court by either the parent(s) or the local educational
agency;
15. Forward the record of
the due process proceeding to the appropriate court for any case that is
appealed;
16. Develop and submit to
the Virginia Department of Education an implementation plan, with copy to the
parent(s), within 45 calendar days of the hearing officer's decision in
hearings that have been fully adjudicated.
a.
If the decision is appealed or the school division is considering an appeal and
the decision is not an agreement by the hearing officer with the parent(s) that
a change in placement is appropriate, then the decision and submission of
implementation plan is held in abeyance pursuant to the appeal
proceedings.
b. In cases where the
decision is an agreement by the hearing officer with the parent(s) that a
change in placement is appropriate, the hearing officer's decision must be
implemented while the case is appealed and an implementation plan must be
submitted by the local educational agency.
c. The implementation plan:
(1) Must be based upon the decision of the
hearing officer;
(2) Shall include
the revised IEP if the decision affects the child's educational program;
and
(3) Shall contain the name and
position of a case manager in the local educational agency charged with
implementing the decision; and
17. Provide the Virginia Department of
Education, upon request, with information and documentation that noncompliance
findings identified through due process or court action are corrected as soon
as possible but in no case later than one year from issuance of the special
education hearing officer's decision.
O. Responsibilities of the special education
hearing officer. The special education hearing officer shall: (
34 CFR
300.511 through
34 CFR
300.513; and
34 CFR
300.532 )
1.
Within five business days of agreeing to serve as the special education hearing
officer, secure a date, time, and location for the hearing that are convenient
to both parties, and notify both parties to the hearing and the Virginia
Department of Education, in writing, of the date, time, and location of the
hearing.
2. Ascertain whether the
parties will have attorneys or others assisting them at the hearing. The
special education hearing officer shall send copies of correspondence to the
parties or their attorneys.
3.
Conduct a prehearing conference via a telephone conference call or in person
unless the special education hearing officer deems such conference unnecessary.
The prehearing conference may be used to clarify or narrow issues and determine
the scope of the hearing. If a prehearing conference is not held, the special
education hearing officer shall document in the written prehearing report to
the Virginia Department of Education the reason for not holding the
conference.
4. Upon request by one
of the parties to schedule a prehearing conference, determine the scope of the
conference and conduct the conference via telephone call or in person. If the
special education hearing officer deems such conference unnecessary, the
special education hearing officer shall document in writing to the parties,
with copy to the Virginia Department of Education, the reason(s) for not
holding the conference.
5. At the
prehearing stage:
a. Discuss with the parties
the possibility of pursuing mediation and review the options that may be
available to settle the case;
b.
Determine when an IDEA due process notice also indicates a Section 504 dispute,
whether to hear both disputes in order to promote efficiency in the hearing
process and avoid confusion about the status of the Section 504 dispute;
and
c. Document in writing to the
parties, with copy to the Virginia Department of Education, prehearing
determinations including a description of the right to appeal the case directly
to either a state or federal court.
6. Monitor the mediation process, if the
parties agree to mediate, to ensure that mediation is not used to deny or delay
the right to a due process hearing, that parental rights are protected, and
that the hearing is concluded within regulatory timelines.
7. Ascertain from the parent(s) whether the
hearing will be open to the public.
8. Ensure that the parties have the right to
a written or, at the option of the parent(s), an electronic verbatim record of
the proceedings and that the record is forwarded to the local educational
agency for the file after making a decision.
9. Receive a list of witnesses and
documentary evidence for the hearing (including all evaluations and related
recommendations that each party intends to use at the hearing) no later than
five business days prior to the hearing.
10. Ensure that the local educational agency
has appointed a surrogate parent in accordance with
8VAC20-81-220 when the parent(s) or
guardian is not available or cannot be located.
11. Ensure that an atmosphere conducive to
fairness is maintained at all times in the hearing.
12. Not require the parties or their
representatives to submit briefs as a condition of rendering a decision. The
special education hearing officer may permit parties to submit briefs, upon the
parties' request.
13. Base findings
of fact and decisions solely upon the preponderance of the evidence presented
at the hearing and applicable state and federal law and regulations.
14. Report findings of fact and decisions in
writing to the parties and their attorneys and the Virginia Department of
Education. If the hearing is an expedited hearing, the special education
hearing officer may issue an oral decision at the conclusion of the hearing,
followed by a written decision within 10 school days of the hearing being
held.
15. Include in the written
findings:
a. Findings of fact relevant to the
issues that are determinative of the case;
b. Legal principles upon which the decision
is based, including references to controlling case law, statutes, and
regulations;
c. An explanation of
the basis for the decision for each issue that is determinative of the case;
and
d. If the special education
hearing officer made findings that required relief to be granted, then an
explanation of the relief granted may be included in the decision.
16. Subject to the procedural
determinations described in subdivision 17 of this subsection, the decision
made by a special education hearing officer shall be made on substantive
grounds based on a determination of whether the child received a free
appropriate public education.
17.
In matters alleging a procedural violation, a special education hearing officer
may find that a child did not receive a free appropriate public education only
if the procedural inadequacies:
a. Impeded the
child's right to a free appropriate public education;
b. Significantly impeded the parent's(s')
opportunity to participate in the decision making process regarding the
provision of a free appropriate public education to the parents' child;
or
c. Caused a deprivation of
educational benefits. Nothing in this subdivision shall be construed to
preclude a special education hearing officer from ordering a local educational
agency to comply with procedural requirements under
34 CFR
300.500 through
34 CFR
300.536.
18. Maintain a well-documented record and
return the official record to the local educational agency upon conclusion of
the case.
19. Determine in a
hearing regarding a manifestation determination whether the local educational
agency has demonstrated that the child's behavior was not a manifestation of
the child's disability consistent with the requirements in
8VAC20-81-160.
P. Authority of the special education hearing
officer. The special education hearing officer has the authority to: (§
22.1-214B of the Code of Virginia;
34 CFR
300.515,
34 CFR
300.512 and 34 CFR 300.532)
1. Exclude any documentary evidence that was
not provided and any testimony of witnesses who were not identified at least
five business days prior to the hearing;
2. Bar any party from introducing evaluations
or recommendations at the hearing that have not been disclosed to all other
parties at least five business days prior to the hearing without the consent of
the other party;
3. Issue subpoenas
requiring testimony or the productions of books, papers, and physical or other
evidence:
a. The special education hearing
officer shall rule on any party's motion to quash or modify a subpoena. The
special education hearing officer shall issue the ruling in writing to all
parties with copy to the Virginia Department of Education.
b. The special education hearing officer or a
party may request an order of enforcement for a subpoena in the circuit court
of the jurisdiction in which the hearing is to be held.
c. Any person so subpoenaed may petition the
circuit court for a decision regarding the validity of such subpoena if the
special education hearing officer does not quash or modify the subpoena after
objection;
4. Administer
an oath to witnesses testifying at a hearing and require all witnesses to
testify under oath or affirmation when testifying at a hearing;
5. Stop hostile or irrelevant pursuits in
questioning and require that the parties and their attorneys, advocates, or
advisors comply with the special education hearing officer's rules and with
relevant laws and regulations;
6.
Excuse witnesses after they testify to limit the number of witnesses present at
the same time or sequester witnesses during the hearing;
7. Refer the matter in dispute to a
conference between the parties when informal resolution and discussion appear
to be desirable and constructive. This action shall not be used to deprive the
parties of their rights and shall be exercised only when the special education
hearing officer determines that the best interests of the child will be
served;
8. Require an independent
educational evaluation of the child. This evaluation shall be at public expense
and shall be conducted in accordance with
8VAC20-81-170;
9.
a. At
the request of either party for a nonexpedited hearing, grant specific
extensions of time beyond the periods set out in this chapter, if in the best
interest of the child. This action shall in no way be used to deprive the
parties of their rights and shall be exercised only when the requesting party
has provided sufficient information that the best interests of the child will
be served by the grant of an extension. The special education hearing officer
may grant such requests for cause, but not for personal attorney convenience.
Changes in hearing dates or timeline extensions shall be noted in writing and
sent to all parties and to the Virginia Department of Education.
b. In instances where neither party requests
an extension of time beyond the period set forth in this chapter, and
mitigating circumstances warrant an extension, the special education hearing
officer shall review the specific circumstances and obtain the approval of the
Virginia Department of Education to the extension;
10. Take action to move the case to
conclusion, including dismissing the pending proceeding if either party refuses
to comply in good faith with the special education hearing officer's
orders;
11. Set guidelines
regarding media coverage if the hearing is open to the public;
12. Enter a disposition as to each
determinative issue presented for decision and identify and determine the
prevailing party on each issue that is decided; and
13. Hold an expedited hearing when a parent
of a child with a disability disagrees with any decision regarding a change in
placement for a child who violates a code of student conduct, or a
manifestation determination, or a local educational agency believes that
maintaining the current placement of the child is substantially likely to
result in injury to the child or others.
a.
The hearing shall occur within 20 school days of the date the due process
notice is received. The special education hearing officer shall make a
determination within 10 school days after the hearing.
b. Unless the parents and local educational
agency agree in writing to waive the resolution meeting or agree to use the
mediation process:
(1) A resolution meeting
shall occur within seven days of receiving notice of the due process notice;
and
(2) The due process hearing may
proceed unless the matter has been resolved to the satisfaction of both parties
within 15 calendar days of the receipt of the due process notice.
c. Once a determination is made,
the special education hearing officer may:
(1) Return the child with a disability to the
placement from which the child was removed if the special education hearing
officer determines that the removal was a violation of special education
disciplinary procedures or that the child's behavior was a manifestation of the
child's disability; or
(2) Order a
change of placement of the child with a disability to an appropriate interim
alternative educational setting for not more than 45 school days if the special
education hearing officer determines that maintaining the current placement of
the child is substantially likely to result in injury to the child or to
others.
Q. Timelines for nonexpedited due process
hearings. ( 34 CFR
300.510 and
34 CFR
300.515 )
1.
Resolution meeting.
a. Within 15 days of
receiving notice of the parent's(s') due process notice, and prior to the
initiation of the due process hearing, the school division shall convene a
meeting with the parent and the relevant member(s) of the IEP Team who have
specific knowledge of the facts identified in the due process notice that:
(1) Includes a representative of the local
educational agency who has decision making authority on behalf of the local
educational agency; and
(2) May not
include an attorney of the local educational agency unless the parent is
accompanied by an attorney.
b. The purpose of the meeting is for the
parent of the child to discuss the due process issues, and the facts that form
the basis of the due process request, so that the local educational agency has
the opportunity to resolve the dispute that is the basis for the due process
request.
c. The meeting described
in subdivisions 1 a and 1 b of this subsection need not be held if:
(1) The parent and the local educational
agency agree in writing to waive the meeting; or
(2) The parent and the local educational
agency agree to use the mediation process described in this chapter.
d. The parent and the local
educational agency determine the relevant members of the IEP Team to attend the
meeting.
e. The parties may enter
into a confidentiality agreement as part of their resolution agreement. There
is nothing in this chapter, however, that requires the participants in a
resolution meeting to keep the discussion confidential or make a
confidentiality agreement a condition of a parents' participation in the
resolution meeting.
2.
Resolution period.
a. If the local
educational agency has not resolved the due process issues to the satisfaction
of the parent within 30 calendar days of the receipt of the due process notice,
the due process hearing may occur.
b. Except as provided in subdivision 3 of
this subsection, the timeline for issuing a final decision begins at the
expiration of this 30-calendar-day period.
c. Except where the parties have jointly
agreed to waive the resolution process or to use mediation, notwithstanding
subdivisions 2 a and 2 b of this subsection, the failure of the parent filing a
due process notice to participate in the resolution meeting delays the
timelines for the resolution process and the due process hearing until the
meeting is held.
d. If the local
educational agency is unable to obtain the participation of the parent in the
resolution meeting after reasonable efforts have been made (and documented in
accordance with the provision in
8VAC20-81-110 E 4), the local
educational agency may at the conclusion of the 30-calendar-day period, request
that a special education hearing officer dismiss the parent's due process
request.
e. If the local
educational agency fails to hold the resolution meeting specified in
subdivision 1 a of this subsection within 15 calendar days of receiving notice
of a parent's request for due process or fails to participate in the resolution
meeting, the parent may seek the intervention of a special education hearing
officer to begin the due process hearing timeline.
3. Adjustments to 30-calendar-day resolution
period. The 45-calendar-day timeline for the due process starts the day after
one of the following events:
a. Both parties
agree in writing to waive the resolution meeting;
b. After either the mediation or resolution
meeting starts but before the end of the 30-calendar-day period, the parties
agree in writing that no agreement is possible; or
c. If both parties agree in writing to
continue the mediation at the end of the 30-calendar-day resolution period, but
later, the parent or local educational agency withdraws from the mediation
process.
4. Written
settlement agreement. If a resolution to the dispute is reached at the meeting
described in subdivisions 1 a and 1 b of this subsection, the parties shall
execute a legally binding agreement that is:
a. Signed by both the parent and a
representative of the local educational agency who has the authority to bind
the local educational agency; and
b. Enforceable in any Virginia court of
competent jurisdiction or in a district court of the United States.
5. Agreement review period. If the
parties execute an agreement pursuant to subdivision 4 of this subsection, a
party may void the agreement within three business days of the agreement's
execution.
6. The special education
hearing officer shall ensure that, not later than 45 calendar days after the
expiration of the 30-calendar-day period under subdivision 2 or the adjusted
time periods described in subdivision 3 of this subsection:
a. A final decision is reached in the
hearing; and
b. A copy of the
decision is mailed to each of the parties.
7. The special education hearing officer
shall document in writing, within five business days, changes in hearing dates
or extensions and send documentation to all parties and the Virginia Department
of Education.
8. Each hearing
involving oral arguments shall be conducted at a time and place that is
reasonably convenient to the parent(s) and child involved.
9. The local educational agency is not
required to schedule a resolution session if the local educational agency
requests the due process hearing. The 45-day timeline for the special education
hearing officer to issue the decision after the local educational agency's
request for a due process hearing is received by the parent(s) and the Virginia
Department of Education. However, if the parties elect to use mediation, the
30-day resolution process is still applicable.
R. Timelines for expedited due process
hearings. ( 34 CFR
300.532(c) )
1. The expedited due process hearing shall
occur within 20 school days of the date the due process request is received.
The special education hearing officer shall make a determination within 10
school days after the hearing.
2.
Unless the parents and local educational agency agree in writing to waive the
resolution meeting or agree to use the mediation process described in
8VAC20-81-190:
a. A resolution meeting shall occur within
seven days of receiving notice of the due process complaint.
b. 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.
c. The resolution period is part of, and not
separate from, the expedited due process hearing timeline.
3. Document in writing within five business
days any changes in hearing dates and send documentation to all parties and the
Virginia Department of Education.
S. Costs of due process hearing and
attorneys' fees. ( 34 CFR
300.517 )
1.
The costs of an independent educational evaluation ordered by the special
education hearing officer, special education hearing officer, court reporters,
and transcripts are shared equally by the local educational agency and the
Virginia Department of Education.
2. The local educational agency is
responsible for its own attorneys' fees.
3. The parent(s) are responsible for their
attorneys' fees. If the parent(s) is the prevailing party, the parent(s) has
the right to petition either a state circuit court or a federal district court
for an award of reasonable attorneys' fees as part of the costs.
4. A state circuit court or a federal
district court may award reasonable attorneys' fees as part of the costs to the
parent(s) of a child with a disability who is the prevailing party.
5. The court may award reasonable attorneys'
fees only if the award is consistent with the limitations, exclusions,
exceptions, and reductions in accordance with the Act and its implementing
regulations and
8VAC20-81-310.
T. Right of appeal. (
34 CFR
300.516; § 22.1-214D of the Code of
Virginia)
1. A decision by the special
education hearing officer in any hearing, including an expedited hearing, is
final and binding unless the decision is appealed by a party in a state circuit
court within 180 days of the issuance of the decision, or in a federal district
court within 90 days of the issuance of the decision. The appeal may be filed
in either a state circuit court or a federal district court without regard to
the amount in controversy. The district courts of the United States have
jurisdiction over actions brought under § 1415 of the Act without regard
to the amount in controversy.
2. On
appeal, the court receives the record of the administrative proceedings, hears
additional evidence at the request of a party, bases its decision on a
preponderance of evidence, and grants the relief that the court determines to
be appropriate.
3. If the special
education hearing officer's decision is appealed in court, implementation of
the special education hearing officer's order is held in abeyance except in
those cases where the special education hearing officer has agreed with the
child's parent(s) that a change in placement is appropriate in accordance with
subsection J of this section. In those cases, the special education hearing
officer's order shall be implemented while the case is being
appealed.
4. If the special
education hearing officer's decision is not implemented, a complaint may be
filed with the Virginia Department of Education for an investigation through
the provisions of
8VAC20-81-200.
U. Nothing in this chapter prohibits or
limits rights under other federal laws or regulations. (
34 CFR
300.516 )
Statutory Authority
§§ 22.1-16 and 22.1-214 of the Code of
Virginia.