North Carolina § 115C-109 - 6. Impartial due process hearings.

§ 115C-109. 6. Impartial due process hearings.

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. 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. 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. 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. The hearing shall be closed to the public unless the parent requests in writing that the hearing be open to the public. 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 decision of the administrative law judge becomes final and is not subject to further review unless appealed to the Review Officer under G.S. 115C-109.9. 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. 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). 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. 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. History (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.) Editor's Note. - Session Laws 2006-69, s. 6(a), (b) provides: "(a) The State Board of Education, through the Division of Exceptional Children and the Office of Administrative Hearings, shall develop its memorandum of understanding as required under G.S. 115C-109.6(j) , as created in Section 2 of this act, by October 31, 2006. The memorandum of understanding shall establish procedures and timelines that are efficient and meet the criteria of IDEA so that impartial hearings are expeditiously handled. At the same time, the procedures and timelines should recognize there are some complicated issues that may require additional time to resolve. In particular, this memorandum should address at least the following: "(1) The reasons, number of days, and means for providing notice to parties. "(2) When a petition is initiated for the purpose of determining when a decision shall be reached. Specifically, this shall address when mediation is begun before and after a petition is filed and when no mediation is begun. "(3) Whether mediated conferences subject to Chapter 150B of the General Statutes are appropriate under IDEA and, if so, when they should occur and how they will affect the timelines. "(4) The number of extensions to be allowed and the basis on which an extension may be granted. "(5) The standard of review for cases going to review officers. "(6) Any other procedural or tolling issue that the State Board of Education or the Office of Administrative Hearings considers necessary to address. "(b) The State Board and the Office of Administrative Hearings shall report jointly to the House Select Committee on the Education of Students with Disabilities by November 15, 2006, on the memorandum of understanding. This report shall make any recommendations as to funding issues that must be resolved or statutory changes that are needed, or both, in order to implement the memorandum of understanding."