Analysis
of Comments, Discussions and Changes from Attachment
1
Comment: Several commenters requested that paragraph (a) of this section be amended by specifying that a parent's appeal of a hearing officer decision must be heard by another hearing officer. Some commenters thought that LEAs should not be required to seek expedited hearings for students that remain a danger after 45 days and sought a simplified procedure for extensions of the 45-day placement.
Others thought that the possibility of an extension of an interim alternative educational placement because a child remains dangerous should be limited to a one-time extension that would require the hearing officer to determine that there were no programmatic changes, related services or supplemental aids or services that could be used to mitigate the dangerousness of the original placement. These commenters thought that any further efforts to keep the student in an alternative placement should be heard by a court. Some commenters asked that the note be deleted or modified by requiring, for example, that for an extension the hearing officer consider whether the school district has created delays or otherwise not acted in good faith. A few commenters asked that any time an agency sought to extend an interim alternative education placement because of continued dangerousness, the agency first conduct a formal evaluation of the child.
Discussion: It is not necessary to change the regulation to specify that a parent's appeal of a hearing officer's decision must be heard by another hearing officer, as it would violate the basic impartiality requirement of §300.508(a)(2) to permit a hearing officer to hear the appeal of his or her prior decision. Under paragraph (b) of this section, unless shortened as the result of a hearing officer's decision consistent with paragraph (a) of this section, a child would remain in the interim alternative educational setting pursuant to §§300.520(a)(2) or 300.521 for the period of the exclusion (which may be up to 45 days).
If the public agency proposes to change the child's placement at the end of that interim alternative educational placement and the child's parents request a due process hearing on that proposed change of placement, the child returns to the child's placement prior to the interim alternative educational setting at the end of that interim placement, except as provided in paragraph (c) of this section. The expedited hearing procedure set forth in paragraph (c) of this section is drawn from the statute, which contemplates the same standards for these expedited hearings as for those under §300.521.
There is no statutory limit on the number of times this procedure may be invoked in any individual case, and none is added to the regulation. If, after a 45-day extension of an interim placement under paragraph (c) of this section, an LEA maintains that the child is still dangerous and the issue has not been resolved through due process, the LEA may seek subsequent expedited due process hearings under paragraph (c)(1) of this section. However, in light of the decision to remove all notes from the regulations, the note would be removed.
Changes: A new paragraph (c)(4) has been added to make clear that the procedure in paragraph (c) may be repeated, if necessary. The note has been removed.
