Sec. 3082 - Due Process Hearing Procedures

ยง 3082. Due Process Hearing Procedures

(a) A parent or public education agency may initiate a hearing pursuant to Education Code sections 56500 through 56507 and 34 C.F.R Sections 300.507 through 300.512 on any of the matters described in Education Code section 56501. The hearing shall be conducted by a hearing officer knowledgeable in administrative hearings and under contract with the CDE.

(b) The hearings conducted pursuant to this section shall not be conducted according to the technical rules of evidence and those related to witnesses. Any relevant evidence shall be admitted if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of any common law or statutory rule which might make improper the admission of such evidence over objection in civil actions. Hearsay evidence may be used for the purpose of supplementing or explaining other evidence but shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions. All testimony shall be under oath or affirmation which the hearing officer is empowered to administer.

(c) In addition to the rights afforded both parties to the hearing pursuant to Education Code sections 56500, 56501, 56502, 56503, 56504, 56505, 56506 and 56507 and C.F.R. Section 300.512, the parties shall also have the following rights:

(1) To call witnesses, including adverse witnesses, and to cross examine witnesses for the other party.

(2) To compel the attendance of witnesses. The hearing officer shall have the right to issue Subpoenas (order to appear and give testimony) and Subpoenas Duces Tecum (order to produce document(s) or paper(s) upon a showing of reasonable necessity by a party).

(3) Absent compelling circumstances to the contrary, and upon motion to the hearing officer to have witnesses excluded from the hearing.

(d) Hearings shall be conducted in the English language; when the primary language of a party to a hearing is other than English, or other mode of communication, an interpreter shall be provided who is competent as determined by the hearing officer. Cost for an interpreter shall be borne by the CDE. Interpreters shall take an oath to interpret fully and accurately.

(e) If either the school district or the parents have an attorney present as an observer, the attorney may watch the proceedings to advise his party at a later date, but the attorney may not present oral argument, written argument or evidence, or consult any manner in or out of the room, during the process hearing.

(f) Notwithstanding Government Code section 11425.10(a)(3) of the Administrative Procedure Act (APA), special education due process hearings are open/closed to the public at the discretion of the parent.

(g) Notwithstanding Government Code section 11440.30 of the APA, the hearing officer may conduct all or part of a hearing by telephone, television, or other electronic means if each participant in the hearing has an opportunity to participate in and to hear the entire proceeding while it is taking place and to observe exhibits.

(1. New section filed 12-21-81 as an emergency; effective upon filing (Register 82, No. 6). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 4-20-82. 2. Certificate of Compliance transmitted to OAL 12-11-81 and filed 4-29-82 (Register 82, No. 18). 3. Renumbering and amendment of Section 3081 to Section 3082 filed 3-21-88; operative 4-20-88 (Register 88, No. 15). 3. Amendment of subsection (d), new subsections (f) and (g) and amendment of Note filed 6-23-97 as an emergency; operative 6-23-97 (Register 97, No. 26). A Certificate of Compliance must be transmitted to OAL by 10-21-97 or emergency language will be repealed by operation of law on the following day. 4. Certificate of Compliance as to 6-23-97 order, including amendment of Note, transmitted to OAL 10-20-97 and filed 12-4-97 (Register 97, No. 49). 5. Change without regulatory effect amending subsections (a), (c) and (d) and Note filed 12-23-2010 pursuant to section 100, title 1, California Code of Regulations (Register 2010, No. 52). 6. Change without regulatory effect amending subsections (a), (c), (f) and (g) and amending Note filed 9-27-2012 pursuant to section 100, title 1, California Code of Regulations (Register 2012, No. 39).)

Note: Authority cited: Section 56100, Education Code. Reference: Sections 56500, 56501, 56502, 56503, 56504, 56505, 56506 and 56507, Education Code; Sections 11425.10 and 11440.30, Government Code; 20 U.S.C. Section 1415(b)(2) and (c); and 34 C.F.R. Sections 300.507,300.508, 300.509, 300.510, 300.511 and 300.512.

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