§8-60-65 - Impartial due process hearing.

§8-60-65 Impartial due process hearing. (a) General. Whenever a due process complaint is received

under section 8-60-61 or section 8-60-77, the parents or the department involved in the dispute shall have an opportunity for an impartial due process hearing, consistent with the procedures in sections 8-60-61, 8-60-62, and 8-60-64.

(b) The hearing described in subsection (a) shall be conducted by the department.

(c) Impartial hearing officer. (1) At a minimum, a hearing officer:

(A) Shall not be:

(i) An employee of the department that is involved in the education or care of the student; or

(ii) A person having a personal or professional interest that conflicts with the person's objectivity in the hearing;

(B) Shall 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;

(C) Shall possess the knowledge and ability to conduct hearings in accordance with appropriate, standard legal practice; and

(D) Shall possess the knowledge and ability to render and write decisions in accordance with appropriate, standard legal practice.

(2) A person who otherwise qualifies to conduct a hearing under paragraph (1) is not an employee of the department solely because he or she is paid by the department to serve as a hearing officer.

(3) The department shall keep a list of the persons who serve as hearing officers. The list shall include a statement of the qualifications of each of those persons.

(d) Subject matter of due process hearings. 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 section 8-60-62(b), unless the other party agrees otherwise.

(e) The hearing officer shall conduct a pre-hearing conference. The hearing officer may conduct all or part of the pre-hearing conference by telephone if both parties or party representatives have an opportunity to participate in and hear the entire proceeding while it is taking place. The pre-hearing conference shall include the identification of the precise issues to be heard under section 8-60-61(a).

(f) Timeline for requesting a hearing. A parent or the department shall request an impartial hearing on their due process complaint within two years of the date the parent or the department knew or should have known about the alleged action that forms the basis of the due process complaint. The request for a due process hearing regarding reimbursement of all costs of the private placement including special education and related services shall be filed within the timeframe specified by state statute.

(g) Exceptions to the timeline. The timeline described in subsection (f) does not apply to a parent if the parent was prevented from filing a due process complaint due to:

(1) Specific misrepresentations by the department that it had resolved the problem forming the basis of the due process complaint; or

(2) The department's withholding of information from the parent that was required to be provided to the parent.

[Eff 11/23/09] (Auth: 20 U.S.C. 1415(f)(1)(A), 1415(f)(3)(A)-(D), HRS §302A-1112) (Imp: 34 C.F.R. §300.511)


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