388.310 - Resolution of dispute by hearing

388.310. Resolution of dispute by hearing

1. If a parent or public agency files a due process complaint pursuant to NAC 388.306, the public agency shall:

(a) Inform the parent of any free or inexpensive legal services and other relevant services available in the area;

(b) Inform the parent of the right to request a resolution of the dispute through a mediation process pursuant to NAC 388.305; and

(c) Inform the parent of the provisions of this section.

2. At the hearing, a party to the hearing may:

(a) Be represented by counsel;

(b) Be accompanied by and advised by persons who have special knowledge of or training regarding the problems of pupils with disabilities;

(c) Present evidence;

(d) Object to the introduction of any evidence at the hearing that has not been disclosed to that party at least 5 business days before the hearing;

(e) Call, examine and compel the attendance of witnesses, including, without limitation, by requesting that the hearing officer ensure the issuance of a subpoena pursuant to NRS 388.469 to compel the attendance of witnesses, the giving of testimony and the production of books and papers at the hearing if such evidence is relevant to the issues in the due process complaint and will not be produced voluntarily; and

(f) Confront and cross-examine witnesses.

3. At the hearing, the parent has the right to:

(a) Have the pupil present; and

(b) Have the hearing open to the general public.

4. The parent may examine the education records of the pupil pursuant to NAC 388.287 before the hearing.

5. Not less than 5 business days before a hearing, each party shall disclose to all other parties all evidence, all evaluations completed by that date and all recommendations based on the evaluations that the party intends to use at the hearing. Unless the opposing party consents, a hearing officer :

(a) May prohibit any party that fails to comply with the requirements of this subsection to disclose an evaluation or recommendation from introducing evaluations or recommendations based on evaluations that have not been disclosed to the opposing party at least 5 business days before the hearing ; and

(b) Shall prohibit any party that fails to comply with the requirements of this subsection to disclose any evidence other than an evaluation or recommendation from introducing such evidence that has not been disclosed to the opposing party at least 5 business days before the hearing.

6. The party who filed the due process complaint pursuant to NAC 388.306 may not raise an issue at the hearing if the issue was not included in the due process complaint unless the parties otherwise agree.

7. The public agency shall make a verbatim record of the hearing either in writing or, at the option of the parent, by electronic means. The record must be made available to any party to the hearing, and the public agency shall provide a copy of the record to the parent at no cost.

8. The public agency shall take whatever action is necessary to ensure that the parent understands the proceedings at the hearing, including arranging for an interpreter for a parent who is deaf or whose native language is not English.

9. The hearing officer shall transmit the written findings of fact and decision prepared pursuant to subsection 12 to the parties. After removing any personally identifiable information of the pupil, the Department shall transmit the findings of fact and decision to the Special Education Advisory Committee of the Department and make the findings of fact and decision available for public inspection by posting the findings of fact and decision on the Internet website maintained by the Department.

10. The hearing must be held at a time and place reasonably convenient to the parent and the pupil involved. The hearing officer shall notify the parties of the time and place of the hearing.

11. The hearing officer shall base the decision solely on the evidence admitted at the hearing. Subject to the limitations set forth in this subsection, a decision made by a hearing officer of whether a pupil received a free appropriate public education must be made on substantive grounds. In a matter alleging a procedural violation, a hearing officer may find that a pupil did not receive a free appropriate public education only if the procedural inadequacies:

(a) Impeded the pupil's right to a free appropriate public education;

(b) Significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a free appropriate public education to the pupil; or

(c) Caused a deprivation of educational benefits.

This subsection does not preclude a hearing officer from ordering a public agency to comply with the procedural requirements established in 34 C.F.R. §§ 300.500 to 300.536, inclusive.

12. Except as otherwise provided in this subsection and NAC 388.307, the hearing officer shall render the findings of fact and decision in writing and mail a copy of the decision to the parties within 45 days after the date on which one of the following occurs:

(a) The parties agree in writing to waive the resolution meeting required pursuant to NAC 388.307;

(b) The parties agree in writing that an agreement is not possible through mediation or a resolution meeting and such agreement is reached after the beginning of either the mediation or resolution meeting but before the end of the 30-day period for resolution; or (c) The parties agree in writing to continue mediation upon the expiration of the 30-day period for resolution and a party subsequently withdraws from the mediation process.

Except as otherwise provided in NAC 388.308 for expedited hearings, the hearing officer may extend the time for rendering a decision for a specific number of days upon the request of either p art y for good cause.

13. The Department shall make the written findings of fact and decision available to any party to the hearing. At the option of a parent, the findings of fact and decision must be made available to the parent by electronic means. The Department shall provide the findings of fact and decision to the parent at no cost.

14. The public agency shall pay the expenses of the hearing officer and any other expenses of the hearing, including, without limitation, any costs incurred pursuant to subsections 7 and 8, using a method that avoids a conflict of interest or the appearance thereof.

15. The hearing officer must:

(a) Not be an employee of the public agency that is involved in the education or care of the pupil;

(b) Not have a personal or professional interest which would conflict with the hearing officer's objectivity;

(c) Possess knowledge of and the ability to understand the provisions of the Individuals with Disabilities Education Act, federal and state regulations pertaining to the Act and legal interpretations of the Act by federal and state courts;

(d) Possess the knowledge and ability to conduct hearings in accordance with the appropriate standards of the legal practice; and

(e) Possess the knowledge and ability to render and write decisions in accordance with the appropriate standards of the legal practice.

A person who otherwise qualifies as a hearing officer is not an employee of the public agency solely because he or she is paid by the public agency to serve as a hearing officer.

16. The Department shall maintain a list of hearing officers and their qualifications. Each calendar year, the Department will provide a copy of the list to each public agency . To remain on the list, a hearing officer must:

(a) Meet the qualifications prescribed by 20 U.S.C. § 1415(f)(3)(A) and the regulations adopted pursuant thereto;

(b) Before being placed on the list or within the first year that the hearing officer appears on the list, complete at least 40 hours of training, including, without limitation, 24 hours of training concerning laws relating to special education which must include, without limitation:

(1) Part B of the Individuals with Disabilities Education Act, 20 U.S.C. §§ 1411 et seq., and the regulations adopted pursuant thereto;

(2) NRS 388.417 to 388.5243, inclusive of this regulation, and NAC 388.001 to 388.450, inclusive of this regulation, and sections 2 to 10, inclusive of this regulation; and

(3) Legal interpretations of those laws and regulations by state and federal courts; and

(c) Complete annual training arranged by the Department, including, without limitation, training concerning laws relating to special education, the procedure for conducting a hearing and rendering and writing a decision.

17. The decision of a hearing officer pursuant to this section is final unless the decision is appealed pursuant to NAC 388.315. If the decision is rendered in favor of the public agency on a due process complaint, the public agency may proceed without the consent of the parents pursuant to the decision of the hearing officer.

18. A party to a pending due process complaint may request the recusal of a hearing officer on the basis of bias or a conflict of interest by motion to the hearing officer. The hearing officer shall timely rule on such a motion by written order.

[Dep't of Education, eff. 12-15-77]-(NAC A by Bd. of Education, 2-7-83; 7-14-88; 9-13-91; 11-23-93; R039-98, 5-29-98; R085-99, 2-16-2000; R071-05, 2-23-2006; R058-07, 10-31-2007); A by R017-18A, eff. 1-30-2019

NRS 385.080 and 388.419

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