Analysis
of Comments, Discussions and Changes from Attachment
1
Comment: Some commenters supported the time frames proposed for expedited due process hearings in light of the need to get prompt resolution of the various issues that are subject to these hearings. A number of commenters expressed concern about being able to meet the timelines proposed in paragraph (a) and suggested that the expedited hearing timeline be set at some longer time such as 10 school days, 15 calendar days, 20 business days, or 20 school days, so that an orderly hearing could be conducted, the parties' rights protected, and a well-reasoned and legally sufficient decision could be rendered.
Some commenters thought that this section should refer to "expedited hearings" rather than "expedited due process hearings." Others noted the obligation of a hearing officer to schedule the hearing quickly so that a decision could be reached within the time frame. Some commenters asked that a provision be added to specify that if a decision was not rendered within the time frame, the child would remain in the alternative placement until the decision was issued, while others asked that the child be returned to the regular placement if the decision were not issued within that time frame.
Some commenters were concerned that the provision proposed in paragraph (b) not be read to reduce rights available to children and parents under the law, and asked that a statement be added to the regulation to specify that in no instance should the protections afforded the student and parent under the Act be reduced.
Some commenters asked that paragraph (c) provide an expedited appeal process as well in light of the statutory emphasis on quick resolution of disputes about disciplinary actions. Some commenters asked that the regulations make clear that appeals of disputes under §§300.520-300.528 are to a State level review officer, if a State has a two-tier due process system, and not to another due process hearing officer.
Discussion: Because of concerns that in some States it will not be possible to conduct an orderly hearing and develop a well-reasoned, legally sufficient decision within a 10 business day timeline, the specific time limit would be removed and replaced with a requirement that States establish a timeline for expedited due process hearings that meet certain standards -- it must result in written decisions being mailed to the parties in less than 45 days, with no extensions of time that result in a decision more that 45 days from the date of the request for a hearing, and it must be the same period of time, whether the hearing is requested by a public agency or parent. This will allow States to develop a rule that is fairly applied to both parents and school districts and is best suited to their particular needs and circumstances.
The regulations refer to expedited due process hearings rather than expedited hearings to make clear that the procedural protections in §§300.508 and 300.509 are to be met. With regard to the hearings provided for in section 615(k)(2) of the Act (§300.521 of the regulations), the Committee reports accompanying Pub. L. 105-17 refer to the hearings as "expedited due process hearings." (S. Rep. No.105-17, p. 31, H. R. Rep. No. 105-95 p. 111 (1997)) In addition, the evidentiary standard specified in the statute for hearings under §§300.521 and 300.526(c) requires consideration of evidence presented by both sides to a dispute, which rules out hearings which do not permit each side an equal opportunity to present evidence. Permitting a different standard to apply to expedited hearings on parent appeals under §300.526(a) would be unfair to public agencies. If a decision is not reached within the time frame specified, the child's placement would be determined based on the other rules provided in these regulations. For example, if a school district had requested a hearing for the purpose of demonstrating that a child was substantially likely to injure themselves or others if the child remained in the current placement, the child could be removed from his or her current placement for not more than 10 school days pending the decision of the hearing officer, unless the child's parents and the public agency agreed otherwise. (§300.519).
If the child were in a 45-day interim alternative educational setting and the parents appealed that determination, the child would remain in that setting until the expiration of the 45 days or the hearing officer's decision, whichever occurs first. (§300.526(a)). If the child's parents oppose a proposed change of placement at the end of a 45-day interim alternative educational setting, under §300.526(b), the child returns to the child's prior placement at the end of the interim placement, unless through another hearing and decision by the hearing officer under §300.526(c), the interim alternative educational setting is extended for an additional period of time, not to exceed 45 days for each expedited hearing requested under §300.526(c).
Paragraph (b) of this section is designed to make clear that while a State must insure that expedited due process hearings must meet the requirements of paragraph (a) of this section, the State may alter other State-imposed procedural rules from those it uses for hearings under §300.507. This rule will ensure that the basic protections regarding hearings under the Act are met, while enabling States to adjust other procedural rules they may have superimposed on due process hearings in light of the expedited nature of these hearings.
No specific expedited appeal process is specified in the Act, and none is added by these regulations. However, States should be able to choose to adopt an expedited appeal procedure if they wish, including, in States that have a two-tier normal due process procedure, establishing a one-tier expedited hearing procedure (i.e., expedited hearings conducted by the SEA) so that parties resort directly to a State or Federal court, rather than appeal through a State-level appeal procedure. Therefore, a change should be made to the regulation to clarify that an appeal of an expedited due process hearing must be consistent with §300.510.
Changes: A technical change has been made to paragraph (a)(2) to refer to §300.509 rather than §300.508. Paragraph (a)(1) has been deleted and a new paragraph (b) has been added to provide that each State establish a timeline for expedited due process hearings that results in a written decision being mailed to the parties within 45 days, with no extensions permitted that result in decisions being issued more than 45 days after the hearing request; and to require that decisions be issued in the same period of time, whether the hearing is requested by a parent or an agency. Paragraphs (a)(2) and (a)(3) have been redesignated as paragraphs (a)(1) and (a)(2) and paragraphs (b) and (c) have been redesignated as paragraphs (c) and (d). Redesignated paragraph (d) has been revised to specify that expedited due process hearings are appealable consistent with the §300.510. A modification has been made to §300.526(a) regarding these appeals.
