NAC388.310. Resolution of dispute by hearing.

     1. If a parent or public agency requests a hearing pursuant to NAC 388.306, the public agency shall comply with the provisions of 20 U.S.C. § 1415(f) and:

     (a) Notify the parent, by certified mail, of the time and place set for the hearing;

     (b) Inform the parent of any free or inexpensive legal services and other relevant services available in the area;

     (c) Inform the parent of the right to request a resolution of the dispute through a mediation process pursuant to NAC 388.305; and

     (d) Inform the parent of the provisions of this section.

     2. At the hearing, a party to the hearing may:

     (a) Be represented by counsel;

     (b) Be accompanied by and advised by persons who have special knowledge of or training regarding the problems of pupils with disabilities;

     (c) Present evidence;

     (d) Object to the admissibility of evidence, an evaluation or a recommendation based on an evaluation that was not disclosed to that party pursuant to subsection 5;

     (e) Call, examine and compel the attendance of witnesses; and

     (f) Cross-examine witnesses.

     3. At the hearing, the parent has the right to:

     (a) Have the pupil present; and

     (b) Have the hearing open to the general public.

     4. The parent may examine all pertinent school records before the hearing.

     5. Not less than 5 business days before a hearing, each party shall disclose to all other parties all evidence, all evaluations completed by that date and all recommendations based on the evaluations that the party intends to use at the hearing. A hearing officer may exclude the admission of evidence, evaluations or recommendations based on evaluations that have not been disclosed to the opposing party at least 5 business days before the hearing.

     6. The party who filed the complaint pursuant to NAC 388.306 may not raise an issue at the hearing if the issue was not included in the complaint unless the parties otherwise agree.

     7. The public agency shall make a verbatim record of the hearing either in writing or, at the option of the parent, by electronic means. The record must be made available to any party to the hearing.

     8. The public agency shall take whatever action is necessary to ensure that the parent understands the proceedings at the hearing, including arranging for an interpreter for a parent who is deaf or whose native language is not English.

     9. The public agency shall transmit the written findings of fact and decisions prepared pursuant to subsection 12 and transmit them to the Special Education Advisory Committee of the Department. The findings and decisions must be available for public inspection after removing any personally identifiable information of the pupil.

     10. The hearing must be held at a time and place reasonably convenient to the parent and the pupil involved.

     11. The hearing officer shall base the decision solely on the evidence presented at the hearing. Subject to the limitations set forth in this subsection, a decision made by a hearing officer of whether a pupil received a free appropriate public education must be made on substantive grounds. In a matter alleging a procedural violation, a hearing officer may find that a pupil did not receive a free appropriate public education only if the procedural inadequacies:

     (a) Impeded the pupil’s right to a free appropriate public education;

     (b) Significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a free appropriate public education to the pupil; or

     (c) Caused a deprivation of educational benefits.

Ê This subsection does not preclude a hearing officer from ordering a public agency to comply with procedural requirements, including, without limitation, the procedural requirements established in 34 C.F.R. §§ 300.500 to 300.536, inclusive.

     12. Except as otherwise provided in this subsection and NAC 388.307, the hearing officer shall render the findings of fact and decision in writing and mail a copy of the decision to the parties within 45 days after the date on which one of the following occurs:

     (a) The parties agree in writing to waive the resolution meeting required pursuant to NAC 388.307;

     (b) The parties agree in writing that an agreement is not possible through mediation or a resolution meeting and such agreement is reached after the beginning of either the mediation or resolution meeting but before the end of the 30-day period for resolution; or

     (c) The parties agree in writing to continue mediation upon the expiration of the 30-day period for resolution and a party subsequently withdraws from the mediation process.

Ê Except as otherwise provided in NAC 388.308 for expedited hearings, the hearing officer may extend the time for rendering a decision for a specific number of days upon the request of either party.

     13. The written findings of fact and decision must be made available to any party to the hearing. At the option of a parent, the findings of fact and decision must be made available to the parent by electronic means.

     14. The public agency shall pay the expenses of the hearing officer and any other expenses of the hearing.

     15. The hearing officer must:

     (a) Not be an employee of the public agency that is involved in the education or care of the pupil;

     (b) Not have a personal or professional interest which would conflict with the hearing officer’s objectivity;

     (c) Possess knowledge of and the ability to understand the provisions of the Individuals with Disabilities Education Act, federal and state regulations pertaining to the Act and legal interpretations of the Act by federal and state courts;

     (d) Possess the knowledge and ability to conduct hearings in accordance with the appropriate standards of the legal practice; and

     (e) Possess the knowledge and ability to render and write decisions in accordance with the appropriate standards of the legal practice.

Ê A person who otherwise qualifies as a hearing officer is not an employee of the public agency solely because he or she is paid by the agency to serve as a hearing officer.

     16. Each calendar year, the Department will provide a list to each public education agency of the hearing officers and their qualifications.

     17. The decision of a hearing officer is final unless the decision is appealed pursuant to NAC 388.315. A public agency may proceed without the consent of the parents pursuant to the decision of the hearing officer.

     18. As used in this section, “business day” means Monday through Friday, excluding federal and state holidays.

     [Dep’t of Education, eff. 12-15-77]—(NAC A by Bd. of Education, 2-7-83; 7-14-88; 9-13-91; 11-23-93; R039-98, 5-29-98; R085-99, 2-16-2000; R071-05, 2-23-2006; R058-07, 10-31-2007)