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Title 4 . Education and Early Development
Chapter 52 . (Repealed)
Section 550. Due process hearing

4 AAC 52.550. Due process hearing

(a) A request for a due process hearing under AS 14.30.193 (a) must be made on a form provided by the department. The written notice of request must remain confidential and may not be publicly disclosed.

(b) A hearing officer appointed under AS 14.30.193 shall conduct the due process hearing at a time and place determined by the hearing officer to be reasonably convenient to the parent, the child, and the school district involved.

(c) The hearing officer shall deliver or mail a notice of the hearing to the parent at least 10 days before the hearing. The notice must be worded substantially as follows:

You are notified that a hearing will be held before (insert name of hearing officer) at (insert place of hearing) on (insert date) at (insert time), in response to the request of ____________ for a hearing on the following issue: ___________________________________________________________________________ You may be represented by counsel, may present any relevant evidence, and may cross-examine any witnesses testifying against you.

(d) The district shall, at least 10 days before the hearing, inform a parent who requests the information or is a party to a due process hearing of any free or low-cost legal and other relevant services available in the area, and of the availability of mediation under 4 AAC 52.490.

(e) The hearing must be recorded and must be conducted according to the following:

(1) each party may be represented by counsel and may be accompanied and advised by individuals with special knowledge or training with respect to the problems of children with disabilities or of the child about whom the request for a hearing was filed;

(2) oral evidence may be taken only on oath or affirmation;

(3) each party may call and examine witnesses, introduce exhibits, cross-examine opposing witnesses on all matters relevant to the issues, impeach a witness regardless of which party first called the witness to testify, rebut the evidence against the party, and may request the hearing officer to compel the attendance of witnesses;

(4) the hearing need not be conducted according to technical court rules relating to evidence and witnesses; however,

(A) relevant evidence may 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 a court rule that makes improper the admission of the evidence over objection in a civil action;

(B) hearsay evidence may be used to supplement or explain direct evidence but is not sufficient by itself to support a finding unless it would be admissible over objection in a civil action;

(C) the rules of privilege are effective to the same extent that they are recognized in a civil action; and

(D) irrelevant and unduly repetitious evidence may be excluded;

(5) the availability and exchange of evidence must be made in compliance with 34 C.F.R. 300.509;

(6) a hearing officer may bar any party who fails to comply with the disclosure requirements of (5) of this subsection from introducing the non-disclosed evaluation, recommendation, or other evidence at the hearing without the consent of the other parties;

(7) an employee of the district may be called as a witness by any party;

(8) a parent may have that parent's child present and may open the hearing to the public; and

(9) the burden of proof is on the district; the burden of persuasion is by a preponderance of the evidence, except when the issue is whether maintaining the current placement of the child is likely to result in injury to the child or others, in which case the burden of persuasion is by evidence that is beyond a preponderance of the evidence as described in 34 C.F.R. 300.521, as revised as of May 11, 1999 and adopted by reference.

(f) The hearing officer shall render a final written decision and mail a copy to each party and to the department not later than 45 days after the school district provides or receives a request for a hearing under (a) of this section. Except as provided in (g) of this section, upon the request of a party, the hearing officer may extend the time for issuing a final decision, by issuing a written order stating the reasons for the extension. An extension may only be granted for good cause. The extension may only be ordered for a specified time to respond to the circumstances for which the extension is granted. The final decision must be in writing and must include a statement of the facts on which it is based.

(g) The provisions of 34 C.F.R. 300.519 - 34 C.F.R. 300.529, as revised as of May 11, 1999, relating to discipline procedures applicable to children with disabilities, are adopted by reference. In a case where a parent or district requests an expedited hearing on a disciplinary issue for which an expedited hearing is provided under the federal provisions adopted in this subsection, the hearing officer shall render a final decision and mail a copy to each party, not later than 45 days from the date of receipt of the parent's or district's request for hearing, without exceptions or extensions.

(h) The department will mail a copy of the findings and the decision of the hearing officer, within 30 days after issuance and after deleting any personally identifiable information, to the advisory panel established under AS 47.80.030 and 4 AAC 52.030 (Governor's Council on Disabilities and Special Education). The department will provide a written, or, at the option of the parent, electronic, verbatim record of the hearing, findings of fact, and decision to any party to the hearing upon request. This record will be provided at no cost to the parent.

(i) A hearing officer may conduct a prehearing conference for the purpose of determining scheduling, requirements for briefing and exchange of exhibits, and other administrative matters specific to the hearing. If the parties use mediation under AS 14.30.194 and 4 AAC 52.490, the hearing officer may not act as a mediator to the dispute.

(j) To be treated a parent under AS 14.30.193 (h), a student may not have been adjudicated incompetent by a court.

History: Eff. 7/1/83, Register 86; am 7/16/89, Register 111; am 11/26/93, Register 128; am 11/23/94, Register 132; am 12/2/2000, Register 156; am 8/22/2001, Register 159; am 3/31/2002, Register 161; am 8/9/2002, Register 163; am 8/24/2002, Register 163; am 12/4/2002, Register 164

Authority: AS 14.07.060

AS 14.30.193

AS 14.30.335

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Last modified 7/05/2006