4 Alaska Admin. Code § 52.550 : Education and Early Development — Education for Children with Disabilities and Gifted Children — Program Administration: Children with Disabilities — Due process hearing

(a) The department will make available to the public an optional model form for filing a complaint for a due process hearing under AS 14.30.193. A parent must file a complaint for a due process hearing in the timelines established in AS 14.30.193(a); a district must file a complaint for a due process hearing within 60 days after a parent takes the action or inaction that is the subject of the complaint. The department may not be joined as a party to a due process hearing unless the department is directly providing services to the child or the department consents. The complaint for a due process hearing is confidential. A complaint must include

(1) the name, residence address, and telephone number of the child or in the case of a homeless child or youth within the meaning of 42 U.S.C. 11434 a(2) (McKinney-Vento Homeless Assistance Act), available contact information for the child;

(2) the name of the school that the child is attending;

(3) a description of the nature of the problem of the child relating to the proposed or refused initiation or change that is the basis for the complaint, including facts relating to the problem;

(4) the signature of the person filing the complaint; and

(5) a proposed resolution of the problem to the extent known and available to the complainant at the time the complaint is filed.

(b) A respondent to a complaint for a due process hearing may file with the hearing officer an objection that the complaint is not sufficient. The objection must be filed within 15 days of the respondent's receipt of the complaint. Within five days of receipt by the hearing officer of an objection, the hearing officer shall determine whether the complaint is sufficient, and shall immediately notify the parties of the determination.

(c) The hearing officer may not consider a complaint as untimely requested under AS 14.90.193(a) if a parent was prevented from filing a complaint because the district

(1) made specific misrepresentations that it had resolved the problem forming the basis for the complaint; or

(2) withheld information from the parent that was required to be provided to the parent by AS 14.30.180- 14.30.350, this chapter, 20 U.S.C. 1400- 1482 (Individuals with Disabilities Education Act), or a regulation adopted under 20 U.S.C. 1400- 1482.

(d) A complainant may amend a complaint for a due process hearing only with the consent in writing of the respondent or by order of the hearing officer. A hearing officer will not grant a request to amend a complaint if five or fewer days remain before the due process hearing begins. An amended complaint restarts the timelines for resolution under this section and the respondent must be given an opportunity to resolve the issue that is the subject of the amendment in a resolution meeting under (f) of this section.

(e) Within 10 days of receipt of the due process complaint, the respondent must send to the complainant a response that specifically addresses the problems raised in the complaint. The response is confidential. If the respondent is a district, and the district has not sent to the parent a written notice under 4 AAC 52.190 regarding the subject matter of the complaint, the response must include

(1) an explanation of why the district proposed or refused to take the action;

(2) a description of other options that the IEP team considered and the reasons why those options were rejected;

(3) a description of each evaluation procedure, assessment, record, or report the agency used as the basis for the proposed or refused action; and

(4) a description of the other factors that are relevant to the district's proposed or refused action.

(f) Within 15 days after receiving a due process complaint, a district shall hold a resolution meeting under 4 AAC 52.555, unless the complainant and district agree in writing to waive the resolution meeting, or the complainant and district agree to mediate the complaint as provided in 4 AAC 52.490.

(g) 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 and the district. The hearing officer may hold a prehearing conference for the purpose of determining scheduling, requirements for briefing and exchange of exhibits, and other administrative matters specific to the hearing. The hearing officer may hold a settlement conference if requested by the complainant and respondent, but the hearing officer may not act as a mediator under AS 14.30.194 and 4 AAC 52.490. 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 may be represented by counsel, may present any relevant evidence, and may cross-examine any witnesses testifying against you.

(h) At least five business days before the hearing, each party must disclose to all other parties all evidence, including evaluations and recommendations based on the evaluations, that the party intends to use at the hearing.

(i) A hearing officer may supplement the procedures in this subsection as necessary to conduct a fair and efficient hearing. The following procedures apply to all due process hearings:

(1) the hearing must be recorded;

(2) oral testimony must be under oath or affirmation;

(3) each party may

(A) be represented by counsel;

(B) 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;

(C) call and examine witnesses;

(D) introduce exhibits;

(E) cross-examine opposing witnesses on all relevant matters;

(F) impeach a witness regardless of who first called the witness to testify;

(G) request the hearing officer to compel the attendance of witnesses;

(H) prohibit the introduction of evidence that has not been disclosed by the other party at least five business days before the hearing;

(4) relevant evidence may be admitted if it is the sort of evidence on which responsible people rely in the conduct of serious affairs, without regard to whether the evidence would be admissible in a civil action;

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

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

(7) evidence may be excluded if it would cause undue delay, waste time, or be a needless presentation of cumulative evidence;

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

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

(10) the complainant may not raise problems that were not raised in the complaint unless the other party agrees; and

(11) the party that requests the hearing has the burden of proving the party's claim by a preponderance of the evidence.

(j) The hearing officer may proceed with a due process hearing if a district has not resolved a complaint for a due process hearing in the resolution meeting under (f) of this section to the satisfaction of the complainant within 30 days of the district's receipt of the request for a due process hearing under (a) of this section, or within 15 days of the district's receipt of the request for an expedited due process hearing under ( l) of this section.

(k) The hearing officer shall issue a final written decision within the timelines provided by this subsection. The decision must include a statement of the facts on which it is based. Except as provided in ( l) of this section, upon the request of the complainant or respondent, 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 be granted only for good cause and may be ordered only for a specified time to respond to the circumstances for which it is granted. Unless an extension is granted, and except as provided in ( l) of this section, the hearing officer shall issue a final written decision and mail a copy to the complainant, the respondent, and the department not later than 45 days after one of the following events:

(1) the complainant and the district agree in writing to waive the resolution meeting;

(2) during either the mediation or resolution meeting process, the complainant and the district agree in writing that an agreement is not possible;

(3) the complainant or the district withdraws from the mediation process after the district and the complainant had agreed in writing to continue the mediation at the end of the 30-day resolution period; or

(4) the thirty-day timeline for the resolution meeting has expired without the complainant and the respondent resolving the complaint or agreeing in writing to continue mediation.

(l) The provisions of 34 C.F.R. 300.530- 300.536, as revised as of October 13, 2006, relating to discipline procedures applicable to children with disabilities, are adopted by reference. If 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 must hold an expedited due process hearing within 20 school days after the request for a hearing is filed, and issue a final written decision. The hearing officer shall mail a copy of the decision to the complainant and the respondent within 10 school days after the hearing. Within seven days after receiving a request for an expedited due process hearing, the district shall attempt to resolve the complaint with the complainant by holding a resolution meeting under 4 AAC 52.555, unless the complainant and district agree in writing to waive the resolution meeting, or the complainant and district agree to resolve the complaint in mediation as provided in 4 AAC 52.490. The hearing officer may proceed with the expedited due process hearing within 15 calendar days of the receipt of the request for an expedited due process hearing if the complaint for a due process hearing is not resolved.

(m) 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. 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.

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

(o) A hearing officer shall determine whether a district provided a FAPE to a child as set out in 34 C.F.R. 300.513, as amended as of October 13, 2006, and adopted by reference. A due process hearing under this section will not address the application of any statutes or regulations other than AS 14.30.180- 14.30.350, this chapter, 20 U.S.C. 1400- 1482 (Individuals with Disabilities Education Act), or a regulation adopted under 20 U.S.C. 1400- 1482, except that if a district is also required to conduct a hearing under 29 U.S.C. 794 (Rehabilitation Act of 1973) regarding the same child and substantially the same facts, the district may, with the consent of the hearing officer, elect to consolidate the hearing under 29 U.S.C. 794 with the due process hearing. The consolidation of the hearing under 29 U.S.C. 794 with the due process hearing does not give the department any responsibility for involvement in or enforcement of a decision under 29 U.S.C. 794. If the hearings are consolidated, the hearing officer must separate the decision regarding the due process hearing from the decision regarding the hearing under 29 U.S.C. 794.

(p) the district shall pay all costs of the due process hearing. If the complainant or respondent appeals the decision to the superior court under the Alaska Rules of Appellate Procedure, costs of preparation of the record will be as provided under those rules other than the cost of furnishing to the parent the items that are required to be furnished at no cost under this section.

4 AAC 52.550

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; am 5/20/2006, Register 178; am 9/23/2007, Register 183

The address for filing a due process hearing request under 4 AAC 52.550 is Department of Education and Early Development, Division of Teaching and Learning Support, 801 W. 10th Street, Suite 200, PO Box 110500, Juneau, Alaska 99811-0500.

As of Register 197 (April 2011), the regulations attorney made a technical revision under AS 44.62.125(b)(6), to 4 AAC 52.550(c).

Authority:AS 14.07.060

AS 14.30.193

AS 14.30.335