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Wednesday, February 6, 2013
Special Education Law 101 - Part XVI: Hearing Procedures
This is another in a series of posts comprising an introduction to special education law. This series is meant to be an introduction for newbies and a refresher course for more experienced readers. Please let us know what you think about the series.
Today's post and the next post concern some unusual procedural issues in due process hearings. The due process hearing is the administrative law equivalent of a trial in a civil action.
A. Hearing Procedures
1. 5 day Disclosure Rule
This rule provides that where a party does not disclose its evidence (generally at least an exchange of exhibits and list of witnesses) at least five business days prior to the due process hearing, such evidence may not be admitted.
34 C.F.R. § 300.512(a)(3), & (b)(1)-(2); IDEA, § 615(f)(2) (evaluations only).
(Most hearing officers do not like the technicality nature of the 5 day rule. Most will enforce if a continuance or other procedural maneuver will not cure it.)
2. Sufficiency of Due Process Complaint
The reauthorized statute provides that a party receiving a due process complaint may challenge the sufficiency of the complaint within 15 days of receipt. The due process hearing officer must make a determination on the face of the complaint (and notice) concerning sufficiency within 5 days.
IDEA, § 615 (c)(2); 34 C.F.R. § 300.508 (d).
(Most courts have imposed a relatively deferential standard for sufficiency. See, Anello v. Indian River Sch Dist 107 LRP 7179 (Del. Family Ct. 1/192007)