(a) Applicability. This division applies only to hearings
which involve the identification, evaluation, placement, or provision
of appropriate early intervention services to a child and the child's
family under Early Childhood Intervention. This process is also referred
to as the due process complaint process or due process hearing process.
(b) Request for hearing.
(1) A parent may initiate a hearing on any matter described
in subsection (a) of this section and in §101.907 of this subchapter
(relating to Filing a Request for Review).
(2) The request for hearing must be in writing and
filed as provided in §101.907 of this subchapter with the ECI
assistant commissioner. The request for hearing is considered filed
when actually received by the ECI assistant commissioner.
(c) Impartial hearing officer.
(1) Hearings shall be conducted by an impartial hearing
officer appointed and selected as provided in §101.911 of this
subchapter (relating to Assignment of Impartial Hearing Officer) and
§101.915 of this subchapter (relating to Substitution of Impartial
Hearing Officer). The impartial hearing officer must be a person who
in addition to the qualifications listed in §101.911 of this
subchapter:
(A) is knowledgeable about the provision of ECI comprehensive
services;
(B) is knowledgeable about the provisions for ECI due
process hearings, the needs of children and families, and the services
available to the child and family;
(C) will listen to viewpoints about the due process
complaint, examine information relevant to the issues, and seek to
reach timely resolution of the due process complaint; and
(D) will provide a record of the proceedings, including
a written decision.
(2) The person must not be an employee of DARS or any
program involved in the provision of services or care to the child
or the child's family, or have a personal or professional interest
that would conflict with his or her objectivity in the hearing.
(3) A person is not an employee of an agency solely
because the person is paid to implement the complaint resolution or
hearing process.
(d) Hearing rights. In addition to those rights provided
parties to a hearing under Division 1 of this subchapter (relating
to General Rules), a party to a hearing shall have a right to:
(1) be accompanied and advised by counsel and by individuals
with special knowledge or training with respect to early childhood
intervention comprehensive services;
(2) prohibit the introduction of any evidence at the
hearing that has not been disclosed to that party at least five days
before the hearing;
(3) obtain a written or electronic verbatim record
of the hearing; and
(4) obtain written findings of fact, conclusions of
law, and decision.
(e) Hearing procedures. In addition to the procedures
provided in Division 1 of this subchapter:
(1) The impartial hearing officer shall afford the
parties an opportunity for hearing after reasonable notice of not
less than 10 days, unless the parties have agreed otherwise.
(2) The impartial hearing officer may issue subpoenas
and commissions to take depositions under the Government Code, Chapter
2001. Subpoenas and commissions to take depositions shall be issued
in the name of DARS.
(3) The impartial hearing officer shall issue a final
decision no later than 30 days after a request for hearing is filed.
A final decision must be in writing and shall include findings of
fact and conclusions of law, separately stated. Findings of fact must
be based exclusively on the evidence and on matters officially noticed
under the Government Code, Chapter 2001. The final decision shall
be transmitted to each party by the hearing officer.
(4) A hearing officer may grant specific extensions
of time beyond the period set out in paragraph (3) of this subsection
at the request of a party.
(5) Hearings conducted under these sections are closed
to the public unless the parent requests that the hearing be open.
(f) Child's status during proceedings.
(1) During the pendency of any administrative proceeding
regarding a due process complaint, unless the parties agree otherwise,
the child involved in the complaint must continue to receive appropriate
comprehensive services previously agreed upon.
(2) If the complaint involves an application for initial
admission to a program, the child must receive those comprehensive
services not in dispute.
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