§ 115C-109.6. Impartial due process hearings. - North Carolina Statutes

§ 115C‑109.6.  Impartialdue process hearings.

(a)        Any party may filewith the Office of Administrative Hearings a petition to request an impartialhearing with respect to any matter relating to the identification, evaluation,or educational placement of a child, or the provision of a free appropriatepublic education of a child, or a manifestation determination. The party filingthe 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 thepetition.

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

(c)        The one‑yearrestriction in subsection (b) of this section shall not apply to a parent ifthe parent was prevented from requesting the hearing due to (i) specificmisrepresentations by the local educational agency that it had resolved theproblem forming the basis of the petition, or (ii) the local educationalagency's withholding of information from the parent that was required underState or federal law to be provided to the parent.

(d)        The hearing shallbe conducted in the county where the child attends school or is entitled toenroll under G.S. 115C‑366, unless the parties mutually agree to adifferent venue.

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

(f)         Subject to G.S.115C‑109.7, the decision of the administrative law judge shall be made onsubstantive grounds based on a determination of whether the child received a freeappropriate public education. Following the hearing, the administrative lawjudge shall issue a written decision regarding the issues set forth insubsection (a) of this section. The decision shall contain findings of fact andconclusions of law. Notwithstanding Chapter 150B of the General Statutes, thedecision of the administrative law judge becomes final and is not subject tofurther review unless appealed to the Review Officer under G.S. 115C‑109.9.

(g)        A copy of theadministrative law judge's decision shall be served upon each party and a copyshall be furnished to the attorneys of record. The written notice shall containa statement informing the parties of the availability of appeal and the 30‑daylimitation period for appeal as set forth in G.S. 115C‑109.9.

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

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

(j)         The State Board,through the Exceptional Children Division, and the State Office ofAdministrative Hearings shall develop and enter into a binding memorandum ofunderstanding to ensure compliance with the statutory and regulatory proceduresand timelines applicable under IDEA to due process hearings and to hearingofficers' decisions, and to ensure the parties' due process rights to a fairand impartial hearing. This memorandum of understanding shall be amended ifsubsequent changes to IDEA are made. The procedures and timelines shall be madepart of the Board's procedural safeguards that are made available to parentsand the public under G.S. 115C‑109.1 and G.S. 115C‑109.5. (1973, c. 1293, s. 10; 1975,c. 151, ss. 1, 2; c. 563, ss. 8, 9; 1975, 2nd Sess., c. 983, ss. 79, 80; 1981,c. 423, s. 1; c. 497, ss. 1, 2; 1983, c. 247, s. 6; 1985, c. 412, s. 2; 1987,c. 827, s. 1; 1987 (Reg. Sess., 1988), c. 1079, s. 1; 1989, c. 362; 1989 (Reg.Sess., 1990), c. 1058; 1991, c. 540, s. 1; 1991 (Reg. Sess., 1992), c. 1030, s.27; 1993, c. 270, s. 1; 1997‑115, s. 1; 2006‑69, s. 2.)