S593: Special Education Due Process Hearings. Latest Version

Passed 1st Reading
Passed 3rd Reading
Passed 1st Reading

AN ACT to allow parties to SEEK IMMEDIATE JUDICIaL REVIEW OF administrative law judge decisions in special EDUCATION due process hearings.

The General Assembly of North Carolina enacts:

SECTION 1.  G.S. 115C‑106.3(5) reads as rewritten:

(5)      Hearing officers. – Include administrative Administrative law judges as defined in G.S. 150B‑2(1) and hearing review officers.G.S. 150B‑2(1).

SECTION 2.  G.S. 115C‑109.6 reads as rewritten:

§ 115C‑109.6.  Impartial due process hearings.

(a)        Any party may file with the Office of Administrative Hearings a petition to request an impartial hearing with respect to any matter relating to the identification, evaluation, or educational placement of a child, or the provision of a free appropriate public education of a child, or a manifestation determination. The party filing the petition must notify the other party and the person designated under G.S. 115C‑107.2(b)(9) by simultaneously serving them with a copy of the petition.

(b)        Notwithstanding any other law, the party shall file a petition under subsection (a) of this section that includes the information required under IDEA and that sets forth an alleged violation that occurred not more than one year before the party knew or reasonably should have known about the alleged action that forms the basis of the petition. The issues for review under this section are limited to those set forth in subsection (a) of this section. The party requesting the hearing may not raise issues that were not raised in the petition unless the other party agrees otherwise.

(c)        The one‑year restriction in subsection (b) of this section shall not apply to a parent if the parent was prevented from requesting the hearing due to (i) specific misrepresentations by the local educational agency that it had resolved the problem forming the basis of the petition, or (ii) the local educational agency's withholding of information from the parent that was required under State or federal law to be provided to the parent.

(d)       The hearing shall be conducted in the county where the child attends school or is entitled to enroll under G.S. 115C‑366, unless the parties mutually agree to a different venue.

(e)        The hearing shall be closed to the public unless the parent requests in writing that the hearing be open to the public.

(f)        Subject to G.S. 115C‑109.7, the decision of the administrative law judge shall be made on substantive grounds based on a determination of whether the child received a free appropriate public education. Following the hearing, the administrative law judge shall issue a written decision regarding the issues set forth in subsection (a) of this section. The decision shall contain findings of fact and conclusions of law. Notwithstanding Chapter 150B of the General Statutes, the The decision of the administrative law judge becomes final and is not subject to further review unless appealed to the Review Officer an aggrieved party brings a civil action under G.S. 115C‑109.9.subsection (h2) of this section.

(g)        A copy of the administrative law judge's decision shall be served upon each party and a copy shall be furnished to the attorneys of record. The written notice shall contain a statement informing the parties of the availability of appeal and the 30‑day limitation period for appeal as set forth in G.S. 115C‑109.9.right to file a civil action and the 30‑day limitation period for filing a civil action under subsection (h2) of this section.

(h)        In addition to the petition, the parties shall simultaneously serve a copy of all pleadings, agreements, and motions under this Part with the person designated by the State Board under G.S. 115C‑107.2(b)(9). The Office of Administrative Hearings shall simultaneously serve a copy of all orders and decisions under this Part with the person designated by the State Board under G.S. 115C‑107.2(b)(9).

(h1)      The State Board shall enforce the final decision of the administrative law judge under this section by ordering a local educational agency to comply with one or more of the following:

(1)        To provide a child with appropriate education.

(2)        To place a child in a private school that is approved to provide special education and that can provide the child an appropriate education.

(3)        To reimburse parents for reasonable private school placement costs in accordance with this Article and IDEA when it is determined that the local educational agency did not offer or provide the child with appropriate education and the private school in which the parent placed the child was an approved school and did provide the child an appropriate education.

(h2)      Any party who is aggrieved by the findings and decision of a hearing officer under this Part may institute a civil action in State court within 30 days after receipt of the notice of the decision or in federal court as provided in 20 U.S.C. § 1415.

(h3)      Except as provided under IDEA, upon the filing of a petition under this section and during the pendency of any proceedings under this Part, the child must remain in the child's then‑current educational placement or, if applying for initial admission to a public school, the child must be placed in the public school. Notwithstanding this subsection, the parties may agree in writing to a different educational placement for the child during the pendency of any proceedings under this section.

(i)         Nothing in this section shall be construed to preclude a parent from filing a separate due process petition on an issue separate from a petition already filed.

(j)         The State Board, through the Exceptional Children Division, and the State Office of Administrative Hearings shall develop and enter into a binding memorandum of understanding to ensure compliance with the statutory and regulatory procedures and timelines applicable under IDEA to due process hearings and to hearing officers' decisions, and to ensure the parties' due process rights to a fair and impartial hearing. This memorandum of understanding shall be amended if subsequent changes to IDEA are made. The procedures and timelines shall be made part of the Board's procedural safeguards that are made available to parents and the public under G.S. 115C‑109.1 and G.S. 115C‑109.5.

SECTION 3.  G.S. 115C‑109.9 is repealed.

SECTION 4.  This act is effective when it becomes law.