La. Admin. Code tit. 28 § XLIII-511

Current through Register Vol. 50, No. 3, March 20, 2024

Section XLIII-511 - Impartial Due Process Hearing and Hearing Officer Appointments

A. General. Whenever a request for due process hearing is received under §507 or §532. C, the parents or the LEA involved in the dispute shall have an opportunity for an impartial due process hearing, consistent with the procedures in §§507, 508, and 510.

B. Agency Responsible for Conducting the Due Process Hearing. The due process hearing described in Subsection A of this Section shall be conducted in accordance with the law.

C. Impartial Hearing Officer. The DAL shall designate hearing officers, who:

1. meet the minimum qualifications stipulated below:

a. shall have earned a juris doctorate degree;

b. shall possess knowledge of, and the ability to understand, the provisions of the IDEA, Federal and State regulations pertaining to the IDEA, and legal interpretations of the IDEA by Federal and State courts;

c. shall possess the knowledge and ability to conduct hearings in accordance with appropriate, standard legal practice;

d. shall possess the knowledge and ability to render and write decisions in accordance with appropriate, standard legal practice; and

e. shall possess other qualifications established by the LDE;

2. shall not:

a. be an employee of a public agency that is involved in the education or care of the student;

b. have a personal or professional interest that would conflict with the person's objectivity in the hearing; or

c. have represented an LEA or a parent as an attorney in education litigation within the previous three years;

3. a person who otherwise qualifies to conduct a hearing under Paragraph C.1 of this Section is not an employee of the agency solely because the person is paid by the agency to serve as a hearing officer;

4. the DAL shall maintain a list of administrative law judges qualified to conduct impartial due process hearings. The list shall include a statement of the qualifications of each of the hearing officers; and

5. the LDE and DAL shall ensure that impartial due process hearing officers designated pursuant to this Section have successfully completed a training program approved by the LDE. Additional training shall be required by the LDE whenever warranted by changes in applicable legal standards or educational practices or as determined necessary by the LDE.

D. Challenge to Impartiality of Due Process Hearing

1. The parent or LEA shall submit written information to the LDE within three business days of receipt of the notice of the assigned hearing officer, in order to challenge the impartiality of the hearing office.

2. The DAL shall review any written challenge to the impartiality of the hearing officer and provide a written decision and notice to the parent and LEA within three business days after receipt of the written challenge.

3. If the DAL determines that doubt exists as to whether the proposed hearing officer is truly impartial, another hearing officer shall be immediately assigned.

E. Subject Matter of Due Process Hearings. The party requesting the due process hearing may not raise issues at the due process hearing that were not raised in the request for due process hearing filed under §508. B, unless the other party agrees otherwise.

F. Timeline for Requesting a Hearing. A parent or agency shall request an impartial hearing on their request for due process hearing within one year of the date the parent or agency knew or should have known about the alleged action that forms the basis of the request for due process hearing.

G. Exceptions to the Timeline. The timeline described in Subsection F of this Section does not apply to a parent if the parent was prevented from filing a request for due process hearing due to:

1. specific misrepresentations by the LEA that it had resolved the problem forming the basis of the request for due process hearing; or

2. the LEA's withholding of information from the parent that was required under these regulations to be provided to the parent.

H. Procedures for conducting a hearing are stipulated below.

1. The hearing officer shall contact all parties to schedule the hearing and then shall notify in writing all parties and the LDE of the date, time and place of the hearing.

2. The hearing shall be conducted in accordance with these regulations as well as procedural guidelines developed by the LDE.

3. At the request of either party, the hearing officer shall have the authority to subpoena persons to appear at the hearing.

I. Prehearing Conference. The hearing officer shall hold a prehearing conference. The hearing officer must initiate the prehearing conference, which may be conducted in person at a location within the school district or by telephone. At the prehearing conference, the hearing officer shall:

1. identify the questions that must be answered to resolve the dispute and eliminate claims and complaints that are without merit;

2. provide the self-represented litigant with a detailed explanation of trial procedures, burden of proof, elements of the claim, and remedies;

3. set up a scheduling order for the hearing and additional prehearing activities;

4. determine if the hearing can be disposed of without an evidentiary hearing and, if so, establish the schedule and procedure for doing so; and

5. establish the management, control, and location of the hearing to ensure its fair, efficient, and effective disposition. The determination of the location of the hearing should not impose additional costs on any party.

J. Burden of Proof. The burden of proof at a due process hearing is on the party seeking relief.

La. Admin. Code tit. 28, § XLIII-511

Promulgated by the Board of Elementary and Secondary Education, LR 34:2072 (October 2008), amended LR 38:2367 (September 2012).

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