§ 16.63. Impartial due process hearing.
(a) Parents may request in writing an impartial due process hearing concerning the identification, evaluation or educational placement of, or the provision of a gifted education to, a student who is gifted or who is thought to be gifted if the parents disagree with the school district’s identification, evaluation or placement of, or the provision of a gifted education to the student. Unless the school district and the parent of the child agree otherwise, the child involved in the hearing shall remain in the child’s current educational placement pending the outcome of the hearing.
(b) A school district may request a hearing to proceed with an initial evaluation or a reevaluation when a parent fails to respond to the district’s proposed evaluation or reevaluation. When a parent rejects the district’s proposed educational placement, other than the initial placement, the school district may request an impartial due process hearing. If the parent fails to respond or refuses to consent to the initial provision of gifted services, neither due process nor mediation may be used to obtain agreement or a ruling that the services may be provided.
(c) The hearing shall be conducted by and held in the local school district at a place reasonably convenient to the parents. At the request of the parents, the hearing may be held in the evening. These options must be set forth in the form provided for requesting a hearing.
(d) The hearing must be an oral, personal hearing and be open to the public unless the parents request a closed hearing 5 days in advance of the hearing. If the hearing is open, the decision issued in the case, and only the decision, shall be available to the public. If the hearing is closed, the decision shall be treated as a record of the student and may not be available to the public.
(e) The decision of the hearing officer must include findings of fact, a discussion and conclusions of law. Although technical rules of evidence will not be followed, the decision must be based solely upon the substantial evidence presented during the course of the hearing.
(f) The hearing officer shall have the authority to order that additional evidence be presented.
(g) A written transcript of the hearing shall, upon request, be made and provided to parents at no cost.
(h) Parents may be represented by legal counsel and accompanied and advised by individuals with special knowledge or training with respect to students who are gifted.
(i) A parent or a parent’s representative shall be given access to educational records, including any tests or reports upon which the proposed action is based.
(j) A party may prohibit the introduction of evidence at the hearing that has not been disclosed to that party at least 5-calendar days before the hearing.
(k) A party has the right to present evidence and testimony, including expert medical, psychological or educational testimony.
(l) The decision of the impartial hearing officer may be appealed to a court of competent jurisdiction. In notifying the parties of the decision, the hearing officer shall indicate the courts to which an appeal may be taken.
(m) The following applies to coordination services for hearings and to hearing officers:
(1) The Secretary may contract for coordination services for hearings related to a child who is gifted or thought to be gifted. The coordination services may include arrangements for stenographic services, arrangements for hearing officer services (including the compensation of hearing officers), scheduling of hearings and other functions in support of procedural consistency and the rights of the parties to hearings.
(2) A hearing officer may not be an employee or agent of a school district in which the parents or student resides, or of an agency which is responsible for the education or care of the student. A hearing officer shall promptly inform the parties of a personal or professional relationship the officer has or has had with any of the parties. The compensation of hearing officers does not cause them to become employees of the Department.
(n) The following timeline applies to due process hearings:
(1) A hearing shall be held within 30-calendar days after a parent’s or school district’s initial request for a hearing.
(2) The hearing officer’s decision shall be issued within 45-calendar days after the parent’s or school district’s request for a hearing.
(o) Each school district shall keep a list of the persons who serve as hearing officers. The list must include the qualifications of each hearing officer. School districts shall provide parents with information as to the availability of the list and make copies of it available upon request.
(p) The Department will report to the Board by October 1 each year on the number of impartial due process hearings held during the previous school year. The report will also provide a Statewide summary of the results of the hearings in a manner that will not violate the confidentiality of children and families. The report will also address actions taken during the previous school year and future plans to strengthen the activities of due process hearings.
(q) Upon receipt of a final decision from a hearing officer or a court, the school district shall provide to the Department an assurance of its implementation of the order. The assurance shall be filed within 30 school days of the date of the final decision.
Authority The provisions of this § 16.63 amended under sections 1372 and 2603-B of the Public School Code of 1949 (24 P. S. § § 13-1372 and 26-2603-B).
Source The provisions of this § 16.63 amended October 31, 2008, effective November 1, 2008, 38 Pa. Code 5953. Immediately preceding text appears at serial pages (271504) to (271506).
Cross References This section cited in 22 Pa. Code § 16.31 (relating to general); 22 Pa. Code § 16.32 (relating to GIEP); 22 Pa. Code § 16.61 (relating to notice); and 22 Pa. Code § 16.62 (relating to consent).
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