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Section 6

ak dept education

special ed handbook
SECTION 6
IMPARTIAL DUE PROCESS HEARINGS

Request for Hearing

Any party may initiate a hearing, and the request must be filed within 1 year of when the parents or agency knew or should have known of the alleged violation:
  1. With respect to any matter relating to the identification, evaluation, or educational placement of the child
  2. The provision of a free appropriate public education to such child
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, unless the other party agrees otherwise.

The timeline described above shall not apply to a parent if the parent was prevented from requesting the hearing due to:
  1. Specific misrepresentations be the local education agency (LEA) that it had resolved the problem forming the basis of the complaint; or
  2. The LEA's withholding of information from the parent that was required under this part to be provided to the parent.
Written Request

A due process hearing may not be provided until notice is filed that meets the following requirements:

The notice requires that either party requesting a due process hearing provide notice to the other party, as well as forwarding a copy of such notice to the SEA. The hearing request notice shall remain confidential between all parties.

The due process notice required shall be deemed to be sufficient unless the party receiving the notice notifies the hearing officer and the other party, in writing, that the receiving party believes the notice has not met the following requirements:
  1. The name of the child, the address of the residence of the child , and the name of the school the child is attending;
  2. In the case of a homeless child or youth (within the meaning of Section 725 (2) of the McKinney-Vento Homeless Assistance Act), the name of the child, available contact information for the child, and the name of the school the child is attending;
  3. A description of the issue relating to the proposed or refused initiation or change, related to the problem; and
  4. A proposed resolution of the problem to the extent known and available to the party at the time.
  5. A request for a due process hearing must be signed.

    Send signed, written request to:

    Special Education Dispute Resolution
    Alaska Department of Education & Early Development
    Teaching and Learning Support, Special Education
    801 West 10th Street, Suite 200
    P.O. Box 110500
    Juneau, Alaska 99811-0500

    Or fax to: (907) 465-2806
    Attention: Special Education Dispute Resolution
Note: The District may not deny or delay a parent's right to a due process hearing for failure to provide the notice described above. The public agency shall inform the parent of any free or low-cost legal and other relevant services available in the area at least 10 days before the hearing.

Insufficient Due Process Hearing Notice

If the due process notice is found to be insufficient by any party, the following procedures must be followed:
  1. The receiving party should notify the hearing officer and the complainant, within 15 days of the receipt, that the notice does not meet the required content requirements.
  2. The agency must provide prior written notice within 10 days if the agency has not provided prior written notice about the issues in the due process hearing notice.
  3. The non-complaining party must respond within 10 days specifically addressing the issues in the due process hearing notice:
    1. an explanation of why the District proposed or refused to take action
    2. a description of other offers 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 a basis for the proposed or refused action
    4. a description of the other factors that are relevant to the agency's proposed or refused action
  4. The hearing officer will make a determination about the sufficiency of the due process hearing notice within 5 days.
  5. The due process hearing notice may be amended with the written consent of the other party or the hearing officer.
  6. The hearing officer can grant permission to amend a due process hearing notice, but not within 5 days of the due process hearing.
  7. The due process hearing timelines will recommence upon the filing of an amended notice
The District shall provide to the parent a copy of the Notice of Procedural Safeguards upon receipt of a request for due process and inform the parent of the availability of mediation as an alternative dispute resolution mechanism. However, the offer of mediation does not negate the parent's or District's right to a due process hearing.

Resolution Sessions

Prior to a due process hearing, the LEA shall convene a meeting with the parents and the relevant member or members of the Individualized Education Program (IEP) team who have specific knowledge of the facts identified in the due process hearing request. The resolution meeting must:
  1. Occur within 15 days of receiving notice of the parent's due process hearing request;
  2. Include a representative of the agency who has decision-making authority on behalf of such agency;
  3. Not include an attorney of the LEA unless the parents are accompanied by an attorney;
  4. Discuss the due process hearing request, and the facts that form the basis of the due process hearing request;
  5. Provide the LEA the opportunity to resolve the due process hearing request.
The preceding 5 resolution meeting elements apply unless the parents and the LEA agree in writing to waive such meeting, or agree to use the mediation process described (see Part VII, Section 4, Mediation).

If the LEA has not resolved the issues that are the subject of the request for the due process hearing to the satisfaction of the parents within 30 days of the receipt of the request, the due process hearing may occur, and all of the applicable timelines for a due process hearing shall commence.

The parties will notify the hearing officer in the case that a resolution is reached to resolve the issues that are the subject of the request for the due process hearing at a meeting described above, the parties shall execute a legally binding agreement that is:
  1. Signed by both the parent and a representative of the agency who has the authority;
  2. Enforceable in any state court of competent jurisdiction or in a district court of the U.S.
If the parties execute an agreement, a party may void such agreement within 3 business days of the agreement's execution.

The District will provide the Department with resolution meeting documentation or documentation that the meeting was waived.

Assignment of An Impartial Hearing officer

If a school district, a parent, or a student who has reached the age of majority requests a due process hearing, the District shall contact the Department to request appointment of a hearing officer. The Department will select a hearing officer through a random selection process, from a list maintained by the Department. Within 5 business days after receipt of the request, the Department will provide the District and the parent (or student) a notice of appointment of the hearing officer the Department has determined eligible to conduct the hearing.

The District and the parent (or student) each have the right to reject, without stating a reason, one hearing officer appointed by the Department. The rejecting party shall send written notice of the rejection to the Department within five days after receipt of the Department's notice of appointment. The Department will, within 5 business days after receipt of the written rejection, provide a notice of appointment, including the name and statement of qualifications, of another hearing officer that the Department has determined available to conduct the hearing. Each appointment is subject to a right of rejection by a party who has not previously rejected an appointment.

Immediately following appointment, the hearing officer shall inform the parties of the availability of mediation and encourage use of that process to attempt to resolve the disagreement between the parent and the school district, but the hearing officer may not act as a mediator to the dispute.

A hearing officer may conduct a pre-hearing conference for the purpose of determining scheduling, requirements for briefing and exchange of exhibits, and other administrative matters specific to the hearing.

A hearing officer must be at least 21 years of age, and have successfully completed a training program sponsored by the Department. Potential candidates must submit an application to the Department in order to participate in the training program that will include review and analysis of federal and state statutes and regulations, and relevant court decisions.

Hearing officers must:
  1.  possess the knowledge of and the ability to understand:
    1. AS 14.30.180 – 14.30.350, 4AAC 52, and 20 USC 1400-1482
    2. legal interpretations of special education laws
  2. be able to conduct hearings in accordance with appropriate stand legal practice
  3. possess the knowledge and ability to issue and write decisions in accordance with appropriate standard legal practice.
The Department will set class size at a level appropriate to maintain a sufficient number of hearing officers.

The appointment of a hearing officer who has a personal or professional bias that might preclude objectivity toward either of the parties to the hearing or any of the issues to be decided in the hearing is prohibited. Personal or professional bias means an interest that an independent third party could reasonably expect would conflict with the officer's ability to objectively perform the responsibilities of a hearing officer and includes:
  1. Current or previous service (12 months immediately preceding appointment) as an employee of the school district serving persons with disabilities.

    Note: A person who otherwise qualifies to conduct a hearing is not considered an employee of a District solely because he or she is paid by the District to serve as a hearing officer.

  2. Current or previous service (12 months immediately preceding appointment) as representative or consultant for the parent in a due process hearing or a complaint process.
  3. Current or previous responsibility for reviewing, approving, or developing policy or financial actions of a District serving child with disabilities.
  4. Previous, current, or anticipated receipt of fees for consulting or legal services by the District.
  5. Personal familiarity with the child or the child's parents, including being a relative of the child or the child's parents.
A hearing officer may at any point withdraw from consideration or from service in any hearing in which the officer believes a personal or professional bias exists that may affect the impartiality towards any of the issues to be decided in the hearing.

A party may request the disqualification of a hearing officer by filing with the hearing officer an affidavit, before the taking of evidence at a hearing, which states the grounds for the party's belief that the hearing officer cannot conduct a fair and impartial hearing. The hearing officer will determine the issue.

Prior to the Hearing

A parent must be allowed to inspect and review reports, files, and records pertaining to the parent's student at least 5 business days prior to the time that a parent is to participate in a hearing. A District may charge a fee for copies of records if the fee does not effectively prevent a parent from exercising his or her right to inspect and review those records. The District may not charge a fee to search for or retrieve records.

At least 5 business days prior to a due process hearing, each party shall disclose to all other parties all evidence to be offered at a hearing other than for rebuttal purposes, including all evaluations completed by that date and recommendations based on those evaluations that they intend to use at the hearing. A hearing officer may bar any party that fails to comply with the disclosure requirement from introducing the relevant information or recommendations at the hearing without the consent of the other party.

Conduct of a Hearing

Hearings and reviews involving oral arguments must be conducted at a time and place that are reasonably convenient to the District, parents and the child involved. The hearing officer may hold a pre-hearing 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 to do so by both parties, but the hearing officer may not act as a mediator. 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) upon the ______ day of ________________, 19__ at the hour of ______, 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.

At least 5 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.

The hearing will be conducted according to the following rules.
  1. The hearing will be conducted at a time and place that is reasonably convenient to the District, parents and child involved.
  2. A record of the hearing will be made. The record will be a written transcript unless the parent opts for an electronic verbatim record. The parent may have access to the record upon formal request.
  3. Each party may be accompanied and advised by counsel and by individuals with special knowledge or training with respect to the problems of child with disabilities.
  4. Oral evidence may be taken only on oath or affirmation.
  5. Each party may call and examine witnesses, introduce exhibits, cross-examine opposing witnesses on matters relevant to the issues even though those matters were not covered in the direct examination, impeach a witness regardless of which party first called the witness to testify, and rebut the evidence against the party.
  6. The hearing need not be conducted according to technical rules relating to evidence and witnesses, however:
    1. 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.
    2. 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.
    3. The rules of privilege are effective to the same extent that they are recognized in a civil action
    4. Irrelevant and unduly repetitious evidence may be excluded
  7. A hearing officer may bar any party that fails to comply with the disclosure requirement from introducing the relevant information or recommendations at the hearing without the consent of the other party.
  8. Any party may call an employee of the District as a witness.
  9. A parent may have his or her child present and may open the hearing to the public.
  10. The party that requests the hearing has the burden of proving the party's claim be a preponderance of evidence.
  11. The hearing officer may proceed with a due process hearing if a District has not resolved a due process complaint in the resolution process to the satisfaction of the complainant within 30 days of the District's receipt of the request for a due process or within 15 days of the District's receipt of an expedited due process hearing.
  12. The hearing officer shall render a final, written decision that includes a statement of the facts on which it is based. The hearing officer shall mail a copy to each party not later than 45 days after receipt of a parent's request for a hearing, or 45 days after a district sends a written notice. A hearing officer may grant specific extensions of time beyond the 45-day period at the request of either party. An extension may only be granted for good cause. The extension may only be ordered for a specified time to respond to those circumstances. A hearing officer should not extend the timelines for a hearing based on the fact that there is pending mediation, unless both parties agree to the extension.
  13. The hearing officer shall issue a final written decision and mail and e-mail a copy to each party and the Department not later than 45 days after one of the following events:
    1. The District and the complainant agree in writing to waive a resolution meeting.
    2. During either the mediation or resolution meeting process, the District and the complainant had agreed in writing that no agreement is possible.
    3. The District or the complainant 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.
    4. The 30-day timeline for the resolution meeting has expired without the parties resolving the complaint or agreeing in writing to continue mediation.
  14. The District shall mail a copy of the findings and decisions of the hearing officer, within a reasonable period of time and after deleting any personally identifiable information, to:

    The Governor's Council on Disabilities and Special Education
    P.O. Box 240249
    Anchorage, AK 99524-0249

    The Department will make those findings and decisions available to the public.
  15. Any party to the hearing has the right to obtain a written, or at the option of the parents, electronic findings of fact and decisions. The District shall provide the copy upon request.
  16. The decision of a hearing officer is final and binding on the school district and parent (or student) unless a party to the hearing appeals the decision. Notwithstanding a decision by the hearing officer, a child may not be evaluated, placed, transferred, or compelled to receive special education or related services until the period for filing an appeal has expired, or, if an appeal is filed, until the appellate review process has been completed.
Child's Status During Proceedings

Pending the outcome of any administrative or judicial proceedings regarding a due process hearing, unless the public agency and the parents of the child agree otherwise, the child involved in the complaint must remain in his or her present educational placement.

Note: When the outcome of any administrative or judicial proceeding regarding due process hearing agrees with the child's parents, that placement must be treated as an agreement between the EED or District and the parents for the purposes of the child's status during proceedings.

If the due process hearing involves an application for initial admission to public school, the child, with the consent of the parents, must be placed in the public school program until the completion of all the proceedings.

Expedited Hearing

If school personnel believe that it is dangerous for a child to be in the current placement (i.e., placement prior to removal to the interim alternative education setting) during the pendency (period of time between the request for and the completion of the hearing) of the due process proceedings, the District may request an expedited due process hearing.

The hearing shall occur within 20 school days of the request. The hearing officer's written decision must be mailed to the parties within 10 days of the hearing, without exceptions or extensions. The hearing officer's decision is final, except that any party involved in the hearing may appeal the decision to state or district court.

The hearing officer may proceed with the expedited hearing within 15 days of the receipt of the request if it has not been resolved.

Within 7 days after receiving a request for an expedited due process hearing, a District shall attempt to resolve the complaint with the complainant by holding a resolution meeting unless the parties agree in writing to waive the resolution meeting or resolve it through mediation.

In determining whether the child may be placed in the alternative educational setting or in another appropriate placement ordered by the hearing officer, the hearing officer must:
  1. Determine that the District has demonstrated by substantial evidence (i.e., beyond a preponderance of the evidence) that maintaining the current placement of the child is substantially likely to result in injury to the child or to others;
  2. Consider the appropriateness of the child's current placement;
  3. Consider whether the District has made reasonable efforts to minimize the risk of harm in the child's current placement, including the use of supplementary aids and services; and
  4. Determine that the interim alternative educational setting that is proposed by school personnel who have consulted with the child's special education teacher, meets the requirements of an interim alternative educational setting.
Placement in an interim alternative educational setting, ordered by a hearing officer, may not be longer than 45 school days. However, the procedures outlined above may be repeated, as necessary.

Hearing officer Decisions

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 (FAPE).

In matters alleging a procedural violation, a hearing officer may find that a child did not receive a FAPE if any of the following procedural inadequacies occurred:
  1. Impeded the child's right to a FAPE;
  2. Significantly impeded the parent's opportunity to participate in the decision-making process regarding the provision of FAPE to the parents' child; or
  3. Cause a deprivation of educational benefits.
Nothing in this section shall be construed to preclude a hearing officer from ordering an LEA to comply with procedural requirements under IDEA 2004.

Nothing in this section shall be construed to affect the right of a parent to file a complaint with the SEA.

Appeal of a Hearing officer's Decision


Any party aggrieved by the decision of a hearing officer may appeal the decision to the superior court, in accordance with rule 602 of the Rules of Appellate Procedure, or may file an original action in state superior court or federal district court, as provided in the IDEA, 20 USC 1415i2A.

If a party appeals the decision to the superior court under Alaska Rules of Appellate Procedure, that party is responsible for the costs of preparation of the record as provided under those rules.

Attorneys' Fees

When parents are a prevailing party, a court shall have jurisdiction in award, determination, or prohibition of attorneys' fees to the parent(s) of a child with a disability. The court may:
  1. Award reasonable attorneys' fees as part of the costs to a parent of a child with a disability.
  2. Determine the amount of attorneys' fees, using prevailing rates in the community in which the action arose, for the kind and quality of services provided.
When the LEA or SEA is a prevailing party, the court, in its discretion, may award reasonable attorney's fees as part of the costs. The court may rule and award fees:
  1. Against the attorney of a parent who files a request for a due process hearing or subsequent cause of action that is frivolous, unreasonable, or without foundation; or
  2. Against the attorney of a parent who continued to litigate after the litigation clearly became frivolous, unreasonable or without foundation; or
  3. Against the attorney of a parent, or against the parent, if the parent's complaint or subsequent cause of action was presented for an improper purpose such as to harass, to cause unnecessary delay, or to needlessly increase the cost of litigation.
Prohibition of Attorneys' Fees

Part B funds may not be used to pay attorney's fees or costs of a party, but may be used to conduct an action or proceeding (i.e., paying for the hearing officer and place for the hearing).

Attorneys' fees may not be awarded and related costs may not be reimbursed in any action or proceeding for services performed subsequent to the time of a written offer of settlement to a parent if:
  1. The District makes an offer at least 10 days before an administrative hearing or civil proceeding.
  2. The parents do not accept the offer within 10 days after it is made.
  3. A court or administrative hearing officer finds that the relief obtained by a parent is not more favorable to the parent than the offer of settlement.
Attorneys' fees may also not be awarded:
  1. To a parent for legal representation at an IEP meeting unless such a meeting is convened as a result of an administrative proceeding or judicial action.
  2. For mediation that is conducted prior to a request for a due process hearing.
  3. Provides that attorneys' fees are not available for the resolution session meetings.
Exception to Prohibition of Attorneys' Fees

An award of attorneys' fees and related costs may be made to a parent who is a prevailing party and who was substantially justified in rejecting the settlement offer.

Reduction in the Amount of Attorneys' Fees

A court may reduce an award for attorneys' fees if:
  1. A parent, during the course of the action or proceeding, unreasonably extended the final resolution of the controversy.
  2. The amount of the award unreasonably exceeds the prevailing rate in the community for similar services by attorneys of reasonably comparable skills, reputation, and experience.
  3. The time spent and legal services rendered were excessive considering the nature of the action.
  4. And the attorney representing a parent did not provide the information specified for the notice of a request for a due process hearing.
The amount of the attorneys' fees will not be reduced if the court finds that the District or state unreasonably extended the final resolution of the action or proceeding.

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