Section 511 IAC 7-45-7 - Conducting the hearingAuthority: IC 20-19-2-8; IC 20-19-2-16
Affected: IC 4-21.5-3-15; IC 20-19-2; IC 20-35
Sec. 7.
(a) If the due process hearing is requested by the public agency: (1) a due process hearing shall be conducted;(2) a final written decision reached; and(3) a copy of the written decision served electronically or mailed to each of the parties; not later than forty-five (45) calendar days after the request is received by the parent.(b) If the due process hearing is requested by a parent, the hearing shall be conducted, a final written decision reached, and a copy of the written decision served electronically or mailed to each of the parties not later than forty-five (45) calendar days after: (1) the thirty (30) day resolution period in section 6(f) of this rule; or(2) one (1) of the events in section 6(f)(1) through 6(f)(3) of this rule.(c) An independent hearing officer may grant specific extensions of time beyond the forty-five (45) day timeline at the request of either party. Any extension of time granted by the independent hearing officer shall be:(1) in writing to all parties; and(2) included in the record of the proceedings.(d) Any party to a due process hearing has the right to the following: (1) Be accompanied and advised by legal counsel and by individuals with special knowledge or training with respect to special education or the problems of students with disabilities.(2) Be represented by an individual who is not an attorney as permitted by IC 4-21.5-3-15(b).(3) Present evidence and: (C) compel the attendance of; witnesses.(4) Conduct discovery in accordance with IC 4-21.5-3, Indiana Rules of Trial Procedure, and section 6.5 [sic, of this rule].(5) Prohibit the introduction of any evidence at the hearing that has not been disclosed at least five (5) business days prior to the hearing.(6) A separation of witnesses who are not parties to the dispute.(7) Obtain a written or, at the option of the parents, an electronic verbatim transcript of the hearing.(8) Obtain written or, at the option of the parents, electronic findings of facts and decision.(9) Be provided with an interpreter, if any party to the hearing has a hearing or speaking impairment or other difficulty in communicating, or whose native language is not English.(e) A parent, or the parent's representative, involved in a due process hearing has the right to the following: (1) Have the student who is the subject of the hearing attend.(2) Have the hearing opened or closed to the public.(3) Inspect and review, prior to the hearing, any records pertaining to the student maintained by the public agency, its agents, or employees, including all tests and reports upon which the proposed action may be based.(4) Recover reasonable attorney's fees if a court determines the parent ultimately prevailed at the: (A) due process hearing; or(5) Obtain a written or electronic verbatim transcript of the proceedings at no cost.(6) Obtain written or electronic findings of fact and decisions at no cost.(f) The independent hearing officer has the discretion and authority to do the following: (2) Determine whether individuals are knowledgeable with respect to special education in order to assist in the proceedings.(3) Frame and consolidate issues in the hearing to provide clarity.(4) Rule on any other matters with respect to the conduct of a due process hearing, subject to administrative or judicial review of abuse of such discretion or authority, mistake in law as to exercise of such discretion or authority, or that such authority was exercised in an arbitrary or capricious manner.(5) Bar any party that fails to comply with subsection (h) from introducing the relevant evaluation or recommendation at the hearing without the consent of the other party.(6) Order a student with a disability to be placed in an interim alternative educational setting for not more than forty-five (45) instructional days under 511 IAC 7-44-7.(g) The party requesting the due process hearing may not raise issues at the hearing that were not raised in the due process hearing request unless the other party agrees otherwise. However, nothing in this rule shall be construed to preclude a party from filing a separate due process hearing request on an issue separate from the due process hearing already requested.(h) At least five (5) business days prior to the hearing, each party shall disclose to all other parties all evaluations completed by that date and recommendations based on the offering party's evaluations that the party intends to use at the hearing. A hearing officer may bar any party that fails to comply with this subsection from introducing the relevant evaluation or recommendation at the hearing without consent of the other party.(i) The party requesting the due process hearing: (1) shall present evidence and testimony first regarding the appropriateness of the proposed or refused action; and(2) has the burden of persuading the hearing officer of its position.(j) The independent hearing officer shall render a written or, at the option of the parents, an electronic decision. The decision shall be dated and must include the following: (1) Findings of fact and conclusions of law.(2) A decision and orders, if necessary.(3) A notice that a party may seek judicial review of the decision and orders by filing a petition for judicial review in a civil court with jurisdiction within thirty (30) calendar days after receipt of the independent hearing officer's final decision.(4) A notice that an action for attorney's fees must be filed in a civil court within thirty (30) calendar days after receipt of the independent hearing officer's final decision if no request for judicial review is filed.(k) The decision of the independent hearing officer shall be based solely upon the oral and written evidence presented at the hearing. In addition, an independent hearing officer's determination of whether a student received a free appropriate public education must be based on substantive grounds. In matters alleging a procedural violation, an independent hearing officer may find that a student did not receive a free appropriate public education only if the procedural inadequacies: (1) impeded the child's right to a free appropriate public education;(2) significantly impeded the parent's opportunity to participate in the decision making process regarding the provision of a free appropriate public education to the parent's child; or(3) caused a deprivation of educational benefit.(l) Nothing in subsection (k) shall be construed to preclude an independent hearing officer from ordering a public agency to comply with procedural requirements under this rule and 511 IAC 7-37.(m) The independent hearing officer shall serve the decision electronically to parties in the electronic filing system. If a party is not accessing the electronic filing system, the independent hearing officer shall mail a copy of the hearing decision via certified mail, return receipt requested, to each party involved in the hearing. The independent hearing officer's decision is a final order unless a petition for judicial review is filed as described in section 9 of this rule.(n) Any party involved shall have thirty (30) calendar days from the date the independent hearing officer's written decision is received to:(1) implement the order or orders in the hearing decision; or(2) file a petition for judicial review as described in section 9 of this rule.(o) A verbatim transcript of the hearing shall be made. The independent hearing officer is responsible for: (1) ensuring the hearing is transcribed; and(2) determining from the parents at the outset of the hearing whether the transcription will be written or electronic. The transcript shall be made available by the division of special education at no cost and upon the request of any party to the hearing at the conclusion of the hearing.
(p) Due process hearings under this section shall be: (1) conducted under IC 4-21.5-3 and this section; and(2) held at a time and place reasonably convenient to all parties to the hearing. The notice of time and place shall be in writing to all parties.(q) The public agency shall bear all costs pertaining to the conduct of a hearing whether or not a hearing is ultimately held, including transcription and hearing officer fees and expenses. Funds under Part B of the Individuals with Disabilities Education Act may be used to pay the costs of conducting the hearing, but the funds shall not be used to pay attorney's fees or costs of a party.(r) Class action due process hearings are not permitted. If the parties and the independent hearing officer agree to a hearing involving two (2) or more students, a separate decision with specific findings of fact, conclusions of law, and orders, if necessary, shall be written for each student.(s) If the issue of the proceedings involves initial enrollment in a public school, the student, with the consent of the parent, shall be placed in the public school program until the completion of the proceedings. If the parties cannot agree to the student's placement during the proceedings, the independent hearing officer shall determine the student's placement as a preliminary matter to the conduct of the due process hearing.(t) If the issue of the proceedings involves initial enrollment in a public school for a student who is transitioning from Part C of the Individuals with Disabilities Education Act to Part B of the act, and the student is no longer eligible for Part C services because the student has become three (3) years of age, the public agency is not required to provide the Part C services that the child had been receiving. If the: (1) child is found eligible for special education and related services under Part B; and(2) parent consents to the initial provision of special education and related services; the public agency must provide those special education and related services that are not in dispute between the parent and the public agency.
(u) Except as provided in 511 IAC 7-44-8, the student shall remain in the student's current educational placement during a due process hearing or judicial proceeding unless the parties agree otherwise. If the: (1) proceedings extend beyond the end of the school year; and(2) placement includes normal grade advancement; that advancement shall proceed unless normal grade advancement is at issue. If the last agreed upon placement cannot be determined, the independent hearing officer shall determine the student's educational placement.
(v) The division of special education shall maintain the following for the duration of the hearing and any subsequent civil action:(1) The original hearing decision.(2) The transcript of the hearing.(3) The exhibits admitted by the independent hearing officer.(4) All:(F) other papers; filed in the hearing.(w) The division of special education shall, after deleting personally identifiable information from copies of the due process hearing findings, conclusions, and orders, do the following: (1) Transmit a copy of the document to the state advisory council on the education of children with disabilities.(2) Maintain a copy of the document for public review in its offices for at least five (5) years after administrative remedies have been exhausted and any litigation completed.Indiana State Board of Education; 511 IAC 7-45-7; filed Jul 14, 2008, 1:24 p.m.: 20080813-IR-511080112FRA; filed Dec 3, 2009, 1:50 p.m.: 20091230-IR-511090057FRA; filed May 25, 2010, 8:19 a.m.: 20100623-IR-511090795FRA; errata filed Jun 29, 2010, 3:14 p.m.: 20100714-IR-511090795ACAReadopted filed 11/6/2014, 3:23 p.m.: 20141203-IR-511140382RFAFiled 3/18/2019, 2:33 p.m.: 20190417-IR-511180153FRAFiled 3/4/2024, 10:02 a.m.: 20240403-IR-511230504FRA