40 Tex. Admin. Code § 101.1107 - Administrative Hearings Concerning Individual Child Rights
(a) Applicability. This division applies only
to hearings which involve the identification, evaluation, placement, or
provision of appropriate early intervention services to a child and the child's
family under Early Childhood Intervention. This process is also referred to as
the due process complaint process or due process hearing process.
(b) Request for hearing.
(1) A parent may initiate a hearing on any
matter described in subsection (a) of this section and in §
101.907 of this subchapter
(relating to Filing a Request for Review).
(2) The request for hearing must be in
writing and filed as provided in §
101.907 of this subchapter with
the ECI assistant commissioner. The request for hearing is considered filed
when actually received by the ECI assistant commissioner.
(c) Impartial hearing officer.
(1) Hearings shall be conducted by an
impartial hearing officer appointed and selected as provided in §
101.911 of this subchapter
(relating to Assignment of Impartial Hearing Officer) and §
101.915 of this subchapter
(relating to Substitution of Impartial Hearing Officer). The impartial hearing
officer must be a person who in addition to the qualifications listed in §
101.911 of this subchapter:
(A) is knowledgeable about the provision of
ECI comprehensive services;
(B) is
knowledgeable about the provisions for ECI due process hearings, the needs of
children and families, and the services available to the child and
family;
(C) will listen to
viewpoints about the due process complaint, examine information relevant to the
issues, and seek to reach timely resolution of the due process complaint;
and
(D) will provide a record of
the proceedings, including a written decision.
(2) The person must not be an employee of
DARS or any program involved in the provision of services or care to the child
or the child's family, or have a personal or professional interest that would
conflict with his or her objectivity in the hearing.
(3) A person is not an employee of an agency
solely because the person is paid to implement the complaint resolution or
hearing process.
(d)
Hearing rights. In addition to those rights provided parties to a hearing under
Division 1 of this subchapter (relating to General Rules), a party to a hearing
shall have a right to:
(1) be accompanied and
advised by counsel and by individuals with special knowledge or training with
respect to early childhood intervention comprehensive services;
(2) prohibit the introduction of any evidence
at the hearing that has not been disclosed to that party at least five days
before the hearing;
(3) obtain a
written or electronic verbatim record of the hearing; and
(4) obtain written findings of fact,
conclusions of law, and decision.
(e) Hearing procedures. In addition to the
procedures provided in Division 1 of this subchapter:
(1) The impartial hearing officer shall
afford the parties an opportunity for hearing after reasonable notice of not
less than 10 days, unless the parties have agreed otherwise.
(2) The impartial hearing officer may issue
subpoenas and commissions to take depositions under the Government Code,
Chapter 2001. Subpoenas and commissions to take depositions shall be issued in
the name of DARS.
(3) The impartial
hearing officer shall issue a final decision no later than 30 days after a
request for hearing is filed. A final decision must be in writing and shall
include findings of fact and conclusions of law, separately stated. Findings of
fact must be based exclusively on the evidence and on matters officially
noticed under the Government Code, Chapter 2001. The final decision shall be
transmitted to each party by the hearing officer.
(4) A hearing officer may grant specific
extensions of time beyond the period set out in paragraph (3) of this
subsection at the request of a party.
(5) Hearings conducted under these sections
are closed to the public unless the parent requests that the hearing be
open.
(f) Child's status
during proceedings.
(1) During the pendency
of any administrative proceeding regarding a due process complaint, unless the
parties agree otherwise, the child involved in the complaint must continue to
receive appropriate comprehensive services previously agreed upon.
(2) If the complaint involves an application
for initial admission to a program, the child must receive those comprehensive
services not in dispute.
Notes
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