La. Admin. Code tit. 28 § XLIII-508

Current through Register Vol. 50, No. 11, November 20, 2024

Section XLIII-508 - Due Process Hearing Request

A. General

1. A party, or the attorney representing a party, files a request for due process hearing by sending a written request for a due process hearing to the LDE. Such request will remain confidential.

2. The party filing a request for a due process hearing must forward a copy of the request for due process hearing to the other party.

3. The time limits in this Section commence after LDE receives the request for a due process hearing. When the LDE receives a written request for a due process hearing, the LDE will provide a copy of the request to the other party. The date the LDE delivers or receives confirmation that the other party has received the request will be the presumptive date verifying receipt.

4. Within two business days of receipt of a written request, the LDE will transmit the request for due process hearing to the Division of Administrative Law (DAL), who will docket the request and assign a hearing officer.

B. Content of Request for Due Process Hearing. The written request for due process hearing required in Paragraph A.1 of this Section shall include:

1. the student's name;

2. the address of the residence of the student;

3. the name of the school the student is attending;

4. in the case of a homeless student or youth (within the meaning of Section 725(2) of the McKinney-Vento Homeless Assistance Act (42 U.S.C. 11434 a(2)), available contact information for the student, and the name of the school the student is attending;

5. a description of the nature of the problem of the student relating to the proposed or refused initiation or change, including facts relating to the problem; and

6. a proposed resolution of the problem to the extent known and available to the person requesting the hearing at the time.

C. Notice Required before a Hearing on a Request for Due Process Hearing. A party may not have a hearing on a request for due process hearing until the party, or the attorney representing the party, files a request for due process hearing that meets the requirements of Subsection B of this Section.

D. Sufficiency of Request for Due Process Hearing

1. The request for due process hearing required by this section shall be deemed sufficient unless the party receiving the request for due process hearing notifies the hearing officer and the other party in writing, within 15 days of receipt of the written request for due process hearing, that the receiving party believes the written request does not meet the requirements in Subsection B of this Section.

2. Within five days of receipt of notification under Paragraph D.1 of this Section, the hearing officer shall make a determination on the face of the written request for due process hearing, whether the due process hearing request meets the requirements of Subsection B of this Section, and shall immediately notify the parties and LDE in writing of that determination. If a determination of insufficiency is made, such determination shall include the nature of the insufficiency and may result in dismissal of the due process hearing.

E. Amendments to Written Request

1. A party may amend its request for due process hearing only if:

a. the other party consents in writing to the amendment and is given the opportunity to resolve the due process hearing request through a meeting held pursuant to §510 A; or

b. the hearing officer grants permission, except that the hearing officer may only grant permission to amend at any time not later than 5 days before the due process hearing begins.

2. If a party files an amended request for a due process hearing, the timelines for the resolution meeting in §510. A and the time period to resolve in §510. B begin again with the filing of the amended due process hearing request.

F. LEA's Response to Request for Due Process Hearing

1. If the LEA has not sent a prior written notice under §504 to the parent regarding the subject matter contained in the parent's request for due process hearing, the LEA shall, within 10 days of receiving the request for due process hearing, send to the parent a response that includes:

a. an explanation of why the agency proposed or refused to take the action raised in the request for due process hearing;

b. a description of other options that the IEP Team considered and the reasons why those options were rejected;

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

d. a description of the other factors that are relevant to the agency's proposed or refused action.

2. A response by an LEA under Paragraph F1 of this Section shall not be construed to preclude the LEA from asserting that the parent's request for due process hearing was insufficient, where appropriate.

G. Other Party Response to a Request for Due Process Hearing. Except as provided in Subsection F of this Section, the party receiving a written request for due process hearing shall, within 10 days of receiving the written request, send to the other party a response that specifically addresses the issues raised in the request for due process hearing.

La. Admin. Code tit. 28, § XLIII-508

Promulgated by the Board of Elementary and Secondary Education, LR 34:2071 (October 2008), amended LR 38:2367 (September 2012), Amended LR 46180 (2/1/2020).

AUTHORITY NOTE: Promulgated in accordance with R.S. 17:6 and 17:1941 et seq.