14 Del. Admin. Code § 926-11.0

Current through Reigster Vol. 28, No. 6, December 1, 2024

Section 926-11.0 - Impartial Due Process Hearing

11.1 General: Whenever a due process complaint is received under Section 7.0 or Section 32.0 (expedited appeal), the parents or the LEA involved in the dispute shall have an opportunity for an impartial due process hearing, consistent with the procedures in Sections 7.0, 8.0, and 10.0.

11.2 The DOE shall be responsible for conducting the due process hearing as further provided in this section. Upon receipt of a due process complaint, the Secretary shall appoint a 3 member hearing panel, on a rotating basis, consisting of:

11.2.1 An attorney admitted to practice and in good standing with the bar of a state;

11.2.2 An educator knowledgeable in the field of special education and special education programming, and;

11.2.3 A lay person with demonstrated interest in the education of the disabled included on an approved list compiled by the Advisory Council for Exceptional Citizens and submitted to the Secretary.

11.3 Impartial hearing officers: Hearing officers shall not be an employee of the DOE or the LEA that is involved in the education or care of the child or a person having a personal or professional interest that conflicts with the person's objectivity in the hearing.

11.4 The impartial hearing officer shall:

11.4.1 Possess knowledge of, and the ability to understand, the provisions of the Act, Federal and State regulations pertaining to the Act, and legal interpretations of the Act by Federal and State courts;

11.4.2 Possess the knowledge and ability to conduct hearings in accordance with appropriate, standard legal practice, in cooperation and consultation with other hearing officers appointed to a given hearing panel;

11.4.3 Possess the knowledge and ability to render and write decisions in accordance with appropriate, standard legal practice,in cooperation and consultation with other hearing officers appointed to a given hearing panel; and

11.4.4Complete training as required by the Secretary to ensure the adequate knowledge and competent performance of hearing officers.

11.5 A person who otherwise qualifies to conduct a hearing under subsection 11.3 is not an employee of the DOE solely because he or she is paid by the DOE to serve as a hearing officer.

11.6 The Secretary shall keep a list of the persons eligible to serve as hearing officers. The list shall include a statement of the qualifications of each of those persons.

11.7 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 due process complaint filed under subsection 8.2, unless the other party agrees otherwise.

11.8 Timeline for requesting a hearing: A parent or agency shall request an impartial hearing on their due process complaint within 2 years of the date the parent or agency knew or should have known about the alleged action that forms the basis of the due process complaint.

11.9 Exceptions to the timeline; The timeline described in subsection 11.8 does not apply to a parent if the parent was prevented from filing a due process complaint due to:

11.9.1 Specific misrepresentations by the LEA that it had resolved the problem forming the basis of the due process complaint; or

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

11.10Burden of proof: The burden of proof and persuasion in the due process hearing shall be on the public agency which is a party to the proceeding.

(Authority: 20 U.S.C. 1415(f)(1)(A), 1415(f)(3)(A)-(D); 14 Del.C. §§ 3110, 3137, 3140)

14 Del. Admin. Code § 926-11.0

20 DE Reg. 550 (1/1/2017)
26 DE Reg. 847 (4/1/2023) (Final)