§302A-443  Administrative hearing proceduresand subpoena power relating to the education of children with a disability. (a)  An impartial hearing may be requested by any parent or guardian of a childwith a disability, or by the department, on any matter relating to theidentification, evaluation, program, or placement of a child with a disability;provided that the hearing is requested:

(1)  Within two years of the date the parent,guardian, or department knew or should have known about the alleged action thatformed the basis of the request for a hearing; and

(2)  Notwithstanding paragraph (1), within one hundredand eighty calendar days of a unilateral special education placement, where therequest is for reimbursement of the costs of the placement.

(b)  Subsection (a) shall not apply to a parentor guardian of a child with a disability if the parent or guardian wasprevented from requesting the hearing due to:

(1)  Specific misrepresentations by the departmentthat it had resolved the problem that formed the basis of the complaint; or

(2)  The department's withholding from the parent orguardian information that was required by state or federal laws and regulationsto provide a free, appropriate public education to a child with a disability.

(c)  The department shall adopt rules thatconform to the requirements of any applicable federal statutes or regulationspertaining to the impartial hearing based on the education of a child with adisability.  The rules shall provide that any party may be present at theproceeding, be accompanied and advised by counsel or individuals with specialknowledge or training with respect to the problems of children with adisability, may require witnesses to be under oath, cross-examine witnesses,and obtain a written or electronic verbatim record of the proceedings.

(d)  Any party to these hearings or thehearings officer shall have the right to compel the attendance of witnessesupon subpoena issued by the hearings officer.  The fees for attendance shall bethe same as for the fees of witnesses before circuit court.  In case of thefailure of any person to comply with a subpoena, a circuit court judge of thejudicial circuit in which the witness resides, upon application of the hearingsofficer, shall compel attendance of the person.

(e)  No later than twenty days prior to theconvening of each regular session of the legislature, the department shallsubmit a report that provides the total number of requests for a due processhearing relating to the reimbursement of costs for a child's placement filed bya parent or guardian of a child with a disability.

(f)  The department shall exercise oversightand monitoring of any child who has undergone unilateral special educationplacement as soon as practicable after the placement. [L 1996, c 89, pt of §2;am L 2005, c 158, §2; am L 2008, c 179, §1]

 

Case Notes

 

  Student's placement at a private school was bilateral due tohearing officer's approval in July 2006, and therefore, plaintiffs' request fortuition reimbursement was subject to the two-year statute of limitations insubsection (a)(1); plaintiffs' request was timely.  550 F. Supp. 2d 1238.

  As claim that health department was legally obligated to payfor child's services at private residential treatment center arose under thefederal Individuals with Disabilities Education Act and child did not pursuethe remedies available under the federal act to establish health department'sobligation to pay for the services, family court lacked jurisdiction to orderthe department to pay for the services.  96 H. 272, 30 P.3d 878.