IMPARTIAL DUE PROCESS HEARING

IMPARTIAL DUE PROCESS HEARING

S 1248	HR 1350	IDEA NOW

``(f) Impartial Due Process Hearing._ ``(1) In general._ ``(A) Hearing._Whenever a complaint has been received under subsection (b)(6) or (k), the parents or the local educational agency involved in such complaint shall have an opportunity for an impartial due process hearing, which shall be conducted by the State educational agency or by the local educational agency, as determined by State law or by the State educational agency.	`(f) IMPARTIAL DUE PROCESS HEARING- `(1) IN GENERAL- `(A) ACCESS TO HEARING- Whenever a complaint has been received under subsection (b)(6) or (j) of this section, the parents or the local educational agency involved in such complaint shall have an opportunity for an impartial due process hearing, which shall be conducted by the State educational agency.	(f) IMPARTIAL DUE PROCESS HEARING- (1) IN GENERAL- Whenever a complaint has been received under subsection (b)(6) or (k) of this section, the parents involved in such complaint shall have an opportunity for an impartial due process hearing, which shall be conducted by the State educational agency or by the local educational agency, as determined by State law or by the State educational agency.
``(B) Opportunity to resolve complaint._ ``(i) Preliminary meeting._Prior to the opportunity for an impartial due process hearing under subparagraph (A), the local educational agency shall convene a meeting with the parents and the IEP Team_ ``(I) within 15 days of receiving notice of the parents' complaint;	`(B) RESOLUTION SESSION- `(i) IN GENERAL- Prior to the opportunity for an impartial due process hearing under subparagraph (A), the local educational agency shall convene a meeting with the parents-- `(I) within 15 days of receiving notice of the parents' complaint; and
``(II) which shall include a representative of the public agency who has decisionmaking authority on behalf of such agency; and
``(III) which may not include an attorney of the local educational agency unless the parent is accompanied by an attorney; and
``(IV) where the parents of the child discuss their complaint, and the specific issues that form the basis of the complaint, and the local educational agency is provided the opportunity to resolve the complaint, unless the parents and the local educational agency agree in writing to waive such meeting, or agree to use the mediation process described in subsection (e).	`(II) where the parents of the child discuss their complaint, and the specific issues that form the basis of the complaint, and the local educational agency is provided the opportunity to resolve the complaint; unless the parents and the local educational agency agree in writing to waive such meeting.
``(ii) Hearing._If the local educational agency has not resolved the complaint to the satisfaction of the parents within 15 days of the receipt of the complaint, the due process hearing may occur, and all of the applicable timelines for a due process hearing under this part shall commence.	`(ii) DUE PROCESS HEARING- If the local educational agency has not resolved the complaint to the satisfaction of the parents within 30 days of the receipt of the complaint, the due process hearing shall occur in accordance with subparagraph (A).
	`(iii) DEFINITION OF MEETING- A meeting conducted pursuant to clause (i) shall not be considered-- `(I) a meeting convened as a result of an administrative hearing or judicial action; or `(II) an administrative hearing or judicial action for purposes of subsection (h)(3).
``(iii) Written settlement agreement._In the case that an agreement is reached to resolve the complaint at such meeting, the agreement shall be set forth in a written settlement agreement that is enforceable in any State court of competent jurisdiction or in a district court of the United States and signed by both the parent and a representative of the public agency who has decisionmaking authority on behalf of such agency.
``(2) Disclosure of evaluations and recommendations._ ``(A) In general._Not less than 5 business days prior to a hearing conducted pursuant to paragraph (1), each party shall disclose to all other parties all evaluations completed by that date, and recommendations based on the offering party's evaluations, that the party intends to use at the hearing.	`(2) DISCLOSURE OF EVALUATIONS AND RECOMMENDATIONS- `(A) IN GENERAL- At least 5 business days prior to a hearing conducted pursuant to paragraph (1), each party shall disclose to all other parties all evaluations completed by that date and recommendations based on the offering party's evaluations that the party intends to use at the hearing.	(2) DISCLOSURE OF EVALUATIONS AND RECOMMENDATIONS- (A) IN GENERAL- At least 5 business days prior to a hearing conducted pursuant to paragraph (1), each party shall disclose to all other parties all evaluations completed by that date and recommendations based on the offering party's evaluations that the party intends to use at the hearing.
``(B) Failure to disclose._A hearing officer may bar any party that fails to comply with subparagraph (A) from introducing the relevant evaluation or recommendation at the hearing without the consent of the other party.	`(B) FAILURE TO DISCLOSE- A hearing officer may bar any party that fails to comply with subparagraph (A) from introducing the relevant evaluation or recommendation at the hearing without the consent of the other party.	(B) FAILURE TO DISCLOSE- A hearing officer may bar any party that fails to comply with subparagraph (A) from introducing the relevant evaluation or recommendation at the hearing without the consent of the other party.
``(3) Limitations on hearing._ ``(A) Person conducting hearing._A hearing officer conducting a hearing pursuant to paragraph (1)(A) shall, at a minimum_ ``(i) not be_ ``(I) an employee of the State educational agency or the local educational agency involved in the education or care of the child; or ``(II) a person having a personal or professional interest that conflicts with the person's objectivity in the hearing; ``(ii) possess a fundamental understanding of this Act, Federal and State regulations pertaining to this Act, and interpretations of this Act by State and Federal courts; ``(iii) possess the knowledge and ability to conduct hearings in accordance with appropriate, standard legal practice; and ``(iv) possess the knowledge and ability to render and write decisions in accordance with appropriate, standard legal practice.	`(3) LIMITATION ON HEARING- `(A) HEARING OFFICER- A hearing conducted pursuant to paragraph (1)(A) may not be conducted by-- `(i) an employee of the State educational agency or the local educational agency involved in the education or care of the child; or `(ii) any person having a personal or professional interest that would conflict with his or her objectivity in the hearing.	(3) LIMITATION ON CONDUCT OF HEARING- A hearing conducted pursuant to paragraph (1) may not be conducted by an employee of the State educational agency or the local educational agency involved in the education or care of the child.
``(B) Subject matter of hearing._The party requesting the due process hearing shall not be allowed to raise issues at the due process hearing that were not raised in the notice filed under subsection (b)(7), unless the other party agrees otherwise.	`(B) SUBJECT MATTER OF HEARING- No party shall be allowed to raise issues at the due process hearing that were not raised in the complaint, discussed during the meeting conducted pursuant to paragraph (1)(B), or properly disclosed pursuant to paragraph (2), unless both parties agree otherwise.'.
``(C) Rule of construction._Nothing in this section shall be construed to preclude a parent from filing a separate due process complaint on an issue separate from a due process complaint already filed. ``(D) Statute of limitations._A parent or public agency shall request an impartial due process hearing within 2 years of the date the parent or public agency knew or should have known about the alleged action that forms the basis of the complaint, or, if the State has an explicit time limitation for requesting such a hearing under this part, in such time as the State law allows. ``(E) Exception to the statute of limitations._The statute of limitations described in subparagraph (D) shall not apply if the parent was prevented from requesting the hearing due to_ ``(i) failure of the local educational agency to provide prior written or procedural safeguards notices; ``(ii) false representations that the local educational agency was attempting to resolve the problem forming the basis of the complaint; or ``(iii) the local educational agency's withholding of information from parents. ``(F) Decision of hearing officer._ ``(i) In general._Subject to clause (ii), a decision made by a hearing officer shall be made on substantive grounds based on a determination of whether the child received a free appropriate public education. ``(ii) Procedural issues._In matters alleging a procedural violation, a hearing officer may find that a child did not receive a free appropriate public education only if the procedural inadequacies_ ``(I) compromised the child's right to an appropriate public education; ``(II) seriously hampered the parents' opportunity to participate in the process; or ``(III) caused a deprivation of educational benefits. ``(iii) Enforceability._A decision made by the hearing officer is enforceable in any State court of competent jurisdiction or in a district court of the United States, unless either party appeals such decision under the provision of subsection (g) or (i)(2). ``(G) Rule of construction._Nothing in this section shall be construed to affect the right of a parent to file a complaint with the State educational agency.