FW: TEA Special Ed Web Page Update on Proposed Rule Changes - Resolution of Disputes

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From: Noe TEA has just sent out this email about proposed changes to the regulations regarding Resolution of Disputes Between Parents and School Districts. It appears the federal Office of Special Ed Programs (OSEP) found a number of things in the TX rules that did not follow IDEA regulations. Note that while they are asking for input now, they will be involving stakeholders (schools, educators, education groups, parents and perhaps some state parent support groups. If you or someone that you know has the opportunity to participate as a stakeholder, please consider participating or encouraging others to participate. Especially for these changes on disputes, it is important that parents have a strong voice. I would like to see readers share their opinions and those of friends and groups you belong with, so that we truly evaluate the possible impact of the proposed changes. Of course, OSEP may have told them to include much of what is here, so TEA may not be able to change some of this. In a quick reading, it appears that the major additions have to due with expedited hearings that are to take place when the dispute is over a discipline decision. I will be reading this carefully and giving my thoughts about it and how it differs from current regulations. Underlined words/sentences are new. Items with a line through them are being deleted. Chuck NoeEducation Specialist----- Original Message ----- From: Special Education Over the next several months the Divisions of Legal Services and Federal and State Education Policy will bring forward two sets of proposed special education rule amendments. See the document below to find the first set of draft proposed amendments. These proposed rule amendments reflect general clean-up and changes resulting from our recent OSEP monitoring visit. TEA proposes to submit these amendments for stakeholder and then public comment and to have rules in place prior to the 2012-13 school year. Please review the document below and send any questions or comments to the TEA Legal email account at tealegal@.... The due date for all feedback is 11:59 PM on July 3, 2012. Thank you for taking the time to review the proposed amendments and provide TEA with feedback. Chapter 89. Adaptations for Special PopulationsSubchapter AA. Commissioner's Rules Concerning Special Education ServicesDivision 7. Resolution of Disputes Between Parents and School Districts§89.1150. General Provisions.(a) From time to time, disputes may arise between a parent and a school district relating to the identification, evaluation, or educational placement of or the provision of a free appropriate public education (FAPE), to a student with a disability.( It is the policy and intent of the Texas Education Agency (TEA) to encourage and support the resolution of any dispute described in subsection (a) of this section at the lowest level possible and in a prompt, efficient, and effective manner.© The possible options for resolving disputes include, but are not limited to:(1) meetings of the student's admission, review, and dismissal committee;(2) meetings or conferences with the student's teachers;(3) meetings or conferences, subject to local school district policies, with campus administrator(s), the special education director of the district (or the shared services arrangement to which the district may be a party), the superintendent of the district, or the board of trustees of the district;(4) requesting mediation through the TEA in accordance with the Individuals with Disabilities Education Act (IDEA), 20 United States Code (USC), §1415(e), and 34 Code of Federal Regulations (CFR), §300.506;(5) filing a complaint with the TEA in accordance with 34 CFR, §300.153; or(6) requesting a due process hearing through the TEA in accordance with IDEA, 20 USC, §1415(f), and 34 CFR, §§300.507-300.514. Upon the filing of a request for a due process hearing, the parent and the school district shall also be provided with an opportunity to resolve the dispute through the mediation process established by TEA.§89.1151. Due Process Hearings.(a) A parent or public education agency may initiate a due process hearing as provided in the Individuals with Disabilities Education Act (IDEA), Part B, as amended, 20 United States Code (USC), §§1401 et seq., and the applicable federal regulations, 34 Code of Federal Regulations (CFR), §§300.1 et seq.( The Texas Education Agency (TEA) shall implement a one-tier system of due process hearings under the IDEA. The proceedings in due process hearings shall be governed by the provisions of 34 CFR, §§300.507-300.514, and 34 CFR, §300.532, if applicable, and §§89.1151, 89.1165, 89.1170, 89.1180, 89.1185 and 89.1191 of this subchapter.© A parent or public education agency must request a due process hearing within one year of the date the complainant knew or should have known about the alleged action that serves as the basis for the hearing request.(d) The timeline described in paragraph © of this section does not apply to a parent if the parent was prevented from filing a due process complaint due to: (1) specific misrepresentations by the public education agency that it had resolved the problem forming the basis of the due process complaint; or (2) the public education agency’s withholding of information from the parent that was required by IDEA, Part B to be provided to the parent.§89.1165. Request for Hearing.(a) A request for a due process hearing (due process complaint) must be in writing and must be filed with the Texas Education Agency, 1701 N. Congress Avenue, Austin, Texas 78701. The request for a due process hearing may be filed by mail, hand-delivery, or facsimile. The Individuals with Disabilities Education Act (IDEA) timelines applicable to due process hearings shall commence when the non-filing party first receives the request for a due process hearing. Unless rebutted, it will be presumed that the non-filing party first received the hearing request on the date it is sent to the parties by the Texas Education Agency (TEA). The TEA has developed a model form which may be used by [a] parents and public education agencies to initiate a due process hearing. The form is available on request from TEA, all regional education service centers, and all school districts. The form is also available on TEA's website.( The party filing a request for a due process hearing must provide a copy of the request to the other party.© The request for due process hearing must include:(1) the name of the child;(2) the address of the residence of the child;(3) the name of the school the child is attending(4) in the case of a homeless child or youth (within the meaning of §725(2) of the McKinney-Vento Homeless Assistance Act (42 United States Code §11434a(2)), available contact information for the child, and the name of the school the child is attending;(5) a description of the nature of the problem of the child relating to the proposed or refused initiation or change, including facts relating to the problem; and(6) a proposed resolution of the problem to the extent known and available to the party at the time.(d) A party may not have a due process hearing until the party, or the attorney representing the party, files a request for a due process hearing that meets the requirements of paragraph © of this section.§89.1170. Impartial Hearing Officer.(a) Each due process hearing shall be conducted by an impartial hearing officer selected by the Texas Education Agency (TEA).( The hearing officer has the authority to administer oaths; call and examine witnesses; rule on motions, including discovery and dispositive motions; determine admissibility of evidence and amendments to pleadings; maintain decorum; schedule and recess the proceedings from day to day; and make any other orders as justice requires, including the application of sanctions as necessary to maintain an orderly hearing process.© If the hearing officer is removed, dies, becomes disabled, or withdraws from a hearing [an appeal] before the completion of duties, the TEA may designate a substitute hearing officer to complete the performance of duties without the necessity of repeating any previous proceedings.§89.1180. Prehearing Procedures.(a) Promptly upon being assigned to a hearing, the hearing officer will forward to the parties a scheduling order which sets the time, date, and location of the hearing and contains the timelines for the following actions, as applicable:(1) Response to Complaint (34 Code of Federal Regulations (CFR), §300.508(f));(2) Resolution Meeting (34 CFR, §300.510(a));(3) Contesting Sufficiency of the Complaint (34 CFR, §300.508(d));(4) Resolution Period (34 CFR, §300.510();(5) Five-Business Day Disclosure (34 CFR, §300.512 (a)(3)); and(6) the date by which the final decision of the hearing officer shall be issued (34 CFR, §300.515 and §300.532©(2)).( The hearing officer shall schedule a prehearing conference to be held at a time reasonably convenient to the parties to the hearing. The prehearing conference shall be held by telephone unless the hearing officer determines that circumstances require an in-person conference.© The prehearing shall be recorded and transcribed by a reporter, who shall immediately prepare a transcript of the prehearing for the hearing officer with copies to each of the parties.(d) The purpose of the prehearing conference shall be to consider any of the following:(1) specifying issues as set forth in the due process complaint [notice];(2) admitting certain assertions of fact or stipulations;(3) establishing any limitation of the number of witnesses and the time allotted for presenting each party's case; and/or(4) discussing other matters which may aid in simplifying the proceeding or disposing of matters in controversy, including settling matters in dispute.(e) Promptly upon the conclusion of the prehearing conference, the hearing officer will issue and deliver to the parties, or their legal representatives, a written prehearing order which confirms and/or identifies:(1) the time, place, and date of the hearing;(2) the issues to be adjudicated at the hearing;(3) the relief being sought at the hearing;(4) the deadline for disclosure of evidence and identification of witnesses, which must be at least five business days prior to the scheduled date of the hearing (hereinafter referred to as the " Disclosure Deadline " );(5) the date by which the final decision of the hearing officer shall be issued; and(6) other information determined to be relevant by the hearing officer.(f) No pleadings, other than the request for hearing, and Response to Complaint, if applicable, are mandatory, unless ordered by the hearing officer. Any pleadings after the request for a due process hearing shall be filed with the hearing officer. Copies of all pleadings shall be sent to all parties of record in the hearing and to the hearing officer. If a party is represented by an attorney, all copies shall be sent to the attorney of record. Telephone facsimile copies may be substituted for copies sent by other means. An affirmative statement that a copy of the pleading has been sent to all parties and the hearing officer is sufficient to indicate compliance with this rule.(g) Discovery methods shall be limited to those specified in the Administrative Procedure Act (APA), Texas Government Code, Chapter 2001, and may be further limited by order of the hearing officer. Upon a party's request to the hearing officer, the hearing officer may issue subpoenas and commissions to take depositions under the APA. Subpoenas and commissions to take depositions shall be issued in the name of the Texas Education Agency.(h) On or before the Disclosure Deadline (which must be at least five business days prior to a scheduled due process hearing), each party must disclose and provide to all other parties and the hearing officer copies of all evidence (including, without limitation, all evaluations completed by that date and recommendations based on those evaluations) which the party intends to use at the hearing. An index of the documents disclosed must be included with and accompany the documents. Each party must also include with the documents disclosed a list of all witnesses (including their names, addresses, phone numbers, and professions) which the party anticipates calling to testify at the hearing.(i) A party may request a dismissal or nonsuit of a due process hearing to the same extent that a plaintiff may dismiss or nonsuit a case under Texas Rules of Civil Procedure, Rule 162. However, if a party requests a dismissal or nonsuit of a due process hearing after the Disclosure Deadline has passed and, at any time within one year thereafter requests a subsequent due process hearing involving the same or substantially similar issues as those alleged in the hearing which was dismissed or nonsuited, then, absent good cause or unless the parties agree otherwise, the Disclosure Deadline for the subsequent due process hearing shall be the same date as was established for the hearing that was dismissed or nonsuited.§89.1185. Hearing.(a) The hearing officer shall afford the parties an opportunity for hearing within the timelines set forth in 34 Code of Federal Regulations (CFR), §300.515 and §300.532, as applicable, unless the hearing officer, at the request of either party, grants an extension of time [parties agree otherwise], except that the [parties must comply with the] timelines for expedited hearings cannot be extended.( Each hearing shall be conducted at a time and place that are reasonably convenient to the parents and child involved.© All persons in attendance shall comport themselves with the same dignity, courtesy, and respect required by the district courts of the State of Texas. All argument shall be made to the hearing officer alone.(d) Except as modified or limited by the provisions of 34 CFR, §§300.507-300.514, or 300.532, or the provisions of §§89.1151-89.1191 of this subchapter, the Texas Rules of Civil Procedure shall govern the proceedings at the hearing and the Texas Rules of Evidence shall govern evidentiary issues.(e) Before a document may be offered or admitted into evidence, the document must be identified as an exhibit of the party offering the document. All pages within the exhibit must be numbered, and all personally identifiable information must be redacted from the exhibit.(f) The hearing officer may set reasonable time limits for presenting evidence at the hearing.(g) Upon request, the hearing officer, at his or her discretion, may permit testimony to be received by telephone.(h) Granting of a motion to exclude witnesses from the hearing room shall be at the hearing officer's discretion.(i) Hearings conducted under this subchapter shall be closed to the public, unless the parent requests that the hearing be open.(j) The hearing shall be recorded and transcribed by a reporter, who shall immediately prepare and transmit a transcript of the evidence to the hearing officer with copies to each of the parties. The hearing officer shall instruct the reporter to delete all personally identifiable information from the transcription of the hearing.(k) Filing of post-hearing briefs shall be permitted only upon order of the hearing officer.(l) The hearing officer shall issue a final decision, signed and dated, no later than 45 days after the expiration of the 30-day period under 34 CFR, §300.510(, or the adjusted time periods described in 34 CFR, §300.510©, after a request for hearing is received by the Texas Education Agency, unless the deadline for a final decision has been extended by the hearing officer as provided in subsection (n) of this section. A final decision must be in writing and must include findings of fact and conclusions of law separately stated. Findings of fact must be based exclusively on the evidence presented at the hearing. The final decision shall be mailed to each party by the hearing officer. The hearing officer, at his or her discretion, may render his or her decision following the conclusion of the hearing, to be followed by written findings of fact and written decision.(m) At the request of either party, the hearing officer shall include, in the final decision, specific findings of fact regarding the following issues:(1) whether the parent or the school district unreasonably protracted the final resolution of the issues in controversy in the hearing; and(2) if the parent was represented by an attorney, whether the parent's attorney provided the school district the appropriate information in the due process complaint in accordance with 34 CFR, §300.508(.(n) A hearing officer may grant extensions of time for good cause beyond the time period specified in subsection (l) of this section at the request of either party. Any such extension shall be granted to a specific date and shall be stated in writing by the hearing officer to each of the parties.(o) The decision issued by the hearing officer is final, except that any party aggrieved by the findings and decision made by the hearing officer, or the performance thereof by any other party, may bring a civil action with respect to the issues presented at the due process hearing in any state court of competent jurisdiction or in a district court of the United States, as provided in 20 United States Code (USC), §1415(i)(2), and 34 CFR, §300.516.(p) In accordance with 34 CFR, §300.518(d), a school district shall implement any decision of the hearing officer that is, at least in part, adverse to the school district in a timely manner within ten school days after the date the decision was rendered. A school district must implement a decision of the hearing officer during the pendency of an appeal, except that the school district may withhold reimbursement for past expenses ordered by the hearing officer [school districts must provide services ordered by the hearing officer, but may withhold reimbursement during the pendency of appeals].§89.1191. Special Rule for Expedited Due Process HearingsAn expedited due process hearing requested by a party under 34 Code of Federal Regulations, §300.532, shall be governed by the same procedural rules as are applicable to due process hearings generally, except that:(1) the hearing must occur within 20 school days of the date the complaint requesting the hearing is filed; (2) the hearing officer must make a decision within 10 school days after the hearing;(3) unless the parents and the school district agree in writing to waive the resolution meeting required by 34 Code of Federal Regulations (CFR), §300.532©(3)(i) or to use the mediation process described in 34 CFR, §300.506, the resolution meeting must occur within seven days of receiving notice of the due process complaint;(4) the due process hearing may proceed unless the matter has been resolved to the satisfaction of both parties within 15 days of the receipt of the due process complaint; and(5) the hearing officer shall not grant any extensions of time.[the final decision of the hearing officer must be issued and mailed to each of the parties no later than 45 days after the date the request for the expedited hearing is received by the Texas Education Agency, without exceptions or extensions.]