72-973.Due process meeting; due processrequirements; time limitations; access to records;hearing officers.(a) (1) Except as hereinafter provided, within 15 days of receipt of a dueprocess complaint noticefrom a parent, the agency shall convene a meeting with the parent and themember or members ofthe IEP team who have specific knowledge of the facts identified in thecomplaint, and arepresentative of the agency who has the authority to make binding decisions onbehalf of theagency. This meeting shall not include the agency's attorney unless the parentis accompanied byan attorney.
(2) At this meeting, the parent of the child shall discuss and explain thecomplaint, including thefacts that form the basis of the complaint and the agency shall be providedthe opportunity toresolve the complaint.
(3) If the meeting of the parties results in a resolution of the complaint,the parties shall execute awritten agreement that both the parent and therepresentative of the agency shall sign and that, at a minimum, includes thefollowing statements:
(A) The agreed upon resolution of each issue presented in the complaint;
(B) that each party understands that the agreement is legally binding uponthem,unless the partyprovides written notice to the other party, within three days of signing theagreement, that theparty giving notice is voiding the agreement; and
(C) if not voided, each party understands that the agreement may be enforcedin state or federalcourt.
(4) If a resolution of the complaint is not reached at the meeting held underthis subsection andthe agency has not resolved the complaint to the satisfaction of the parentwithin 30 days of theagency's receipt of the complaint, the due process hearing procedures shall beimplemented andall of the applicable timelines for a due process hearing shall commence. Alldiscussions thatoccurred during the meeting shall be confidential and may not be used asevidence in anysubsequent hearing or civil proceeding.
(5) A meeting shall not be required under this subsection if the parent andthe agency agree, inwriting, to waive such a meeting, or they agree to use mediation to attempt toresolve thecomplaint.
(b) Any due process hearing provided for under this act, shall beheld at a time and place reasonably convenient to theparent of theinvolved child, be a closed hearing unless theparent requestsan open hearing and be conducted in accordance withprocedural due process rights, including the following:
(1) The right of the partiesto be accompanied and advised by counsel and by individuals with specialknowledge or training with respect to the problems of children withdisabilities;
(2) the right of the parties to bepresent at the hearing;
(3) the right of the parties to confrontandcross-examine witnesses who appear in person at the hearing, either voluntarilyor as a result of the issuance of a subpoena;
(4) the right of the parties to present witnesses inperson ortheir testimony by affidavit, including expert medical, psychological oreducational testimony;
(5) the right of the parties to prohibit the presentation ofanyevidence at the hearing which has not been disclosed to the oppositeparty at least five days prior to the hearing, including any evaluationscompleted by that date and any recommendations based on such evaluations;
(6) the right to prohibit the other party from raising, at the due processhearing, any issue that was not raised in the due process complaint notice orin a prehearing conference held prior to the hearing;
(7) the right of the parties to have a written or, at theoption of theparent, an electronic, verbatim record of the hearing; and
(8) the right to a written or, at the option of the parent, an electronicdecision, including findings of facts and conclusions.
(c) Except as provided by subsection (a), each due processhearing, other than an expeditedhearing under K.S.A. 72-993, andamendments thereto, shall beheld not later than 35days from the date on whichthe request therefor is received. The parties shall be notified inwriting of the time and place of the hearing at least five days prior thereto.At any reasonable time prior to the hearing, theparent and thecounsel or advisor of the involved child shall be given access to allrecords, tests, reports or clinical evaluations relating to the proposedaction.
(d) (1) Except as otherwise provided in K.S.A. 72-993,andamendmentsthereto,during thependency of any proceedings conducted under this act, unless the agency andparent otherwiseagree, the child shall remain in the then-current educational placement of suchchild.
(2) If proceedings arise in connection with the initial admission of thechild to school, thechild shall be placed in the appropriate regular education classroom or programin compliancewith K.S.A. 72-1111, and amendments thereto, unless otherwise directed pursuanttoK.S.A. 2009 Supp.72-992a,and amendments thereto.
(e) Subject to the provisions of K.S.A. 72-973a, andamendments thereto,the agency shall appoint a hearing officer for the purpose of conductingthe hearing. Members of the state board, the secretary of social andrehabilitation services, the secretary of corrections, the commissioner ofthe juvenile justice authority, and members of any board or agencyinvolved in theeducation ofthe child shall not serve as hearing officers. No hearing officer shall be anyperson responsible for recommending the proposed action upon whichthehearing is based, any person having a personal orprofessional interest which wouldconflict with objectivity in the hearing, or any person whois an employee of thestate board or any agency involved in the education of the child. A personshall not be considered an employee of the agency solely because the person ispaid by the agency to serve as a hearing officer. Each agency shall maintain alist of hearing officers. Such list shall include a statement of thequalifications of each hearing officer. Each hearing officer and each statereview officer shall be qualifiedin accordance with standards and requirements established by the state boardand shall have satisfactorily completed a training program conducted orapproved by the state board.
(f) (1) Any party to a due process hearing who has grounds to believethat the hearing officercannot afford the party a fair and impartial hearing due to bias, prejudice ora conflict of interestmay file a written request for the hearing officer to disqualify such officerand have anotherhearing officer appointed by thestate board. Any such written request shall state the grounds for the requestand the facts uponwhich the request is based.
(2) If a request for disqualification is filed, the hearing officer shallreview the request anddetermine the sufficiency of the grounds stated in the request. The hearingofficer then shallprepare a written order concerning the request and serve the order on theparties to the hearing. Ifthe grounds are found to be insufficient, the hearing officer shall continue toserve as the hearingofficer. If the grounds are found to be sufficient, the hearing officerimmediately shall notify thestate board and request the state board to appoint another hearing officer.
(g) (1) Except as provided in paragraph (2), the decision of the hearingofficer in each dueprocess hearing shall be based on substantive grounds and a determination ofwhether the childreceived a free appropriate public education.
(2) In due process hearings in which procedural violations are alleged, thehearing officer mayfind that the child did not receive a free appropriate public education only ifthe hearing officerconcludes the procedural violations did occur and those violations:
(A) Impeded the child's right to a free appropriate public education;
(B) significantly impeded the parents' opportunity to participate in thedecision making processregarding the provision of a free appropriate public education to the parents'child; or
(C) caused a deprivation of educational benefits.
(3) Nothing in this subsection shall be construed to preclude a hearingofficer from ordering alocal educational agency to comply with procedural requirements under this act.
(h) Whenever a hearing officer conducts any hearing,such hearing officer shall render a decision on the matter, includingfindings of fact and conclusions, not later than 10days after the close of the hearing. The decision shall bewritten or, at the option of theparent, shall be an electronic decision. Any action of the hearingofficer in accordance with this subsection shall be final, subject to appealand review in accordance withthis act.
History: L. 1974, ch. 290, § 14; L. 1977, ch. 241, § 2; L. 1978,ch. 286, § 2; L. 1980, ch. 216, § 3; L. 1983, ch. 237, § 1; L. 1986,ch. 318, § 127; L. 1991, ch. 218, § 3;L. 1999, ch. 116, § 20;L. 2005, ch. 171, § 9; July 1.
72-973.Due process meeting; due processrequirements; time limitations; access to records;hearing officers.(a) (1) Except as hereinafter provided, within 15 days of receipt of a dueprocess complaint noticefrom a parent, the agency shall convene a meeting with the parent and themember or members ofthe IEP team who have specific knowledge of the facts identified in thecomplaint, and arepresentative of the agency who has the authority to make binding decisions onbehalf of theagency. This meeting shall not include the agency's attorney unless the parentis accompanied byan attorney.
(2) At this meeting, the parent of the child shall discuss and explain thecomplaint, including thefacts that form the basis of the complaint and the agency shall be providedthe opportunity toresolve the complaint.
(3) If the meeting of the parties results in a resolution of the complaint,the parties shall execute awritten agreement that both the parent and therepresentative of the agency shall sign and that, at a minimum, includes thefollowing statements:
(A) The agreed upon resolution of each issue presented in the complaint;
(B) that each party understands that the agreement is legally binding uponthem,unless the partyprovides written notice to the other party, within three days of signing theagreement, that theparty giving notice is voiding the agreement; and
(C) if not voided, each party understands that the agreement may be enforcedin state or federalcourt.
(4) If a resolution of the complaint is not reached at the meeting held underthis subsection andthe agency has not resolved the complaint to the satisfaction of the parentwithin 30 days of theagency's receipt of the complaint, the due process hearing procedures shall beimplemented andall of the applicable timelines for a due process hearing shall commence. Alldiscussions thatoccurred during the meeting shall be confidential and may not be used asevidence in anysubsequent hearing or civil proceeding.
(5) A meeting shall not be required under this subsection if the parent andthe agency agree, inwriting, to waive such a meeting, or they agree to use mediation to attempt toresolve thecomplaint.
(b) Any due process hearing provided for under this act, shall beheld at a time and place reasonably convenient to theparent of theinvolved child, be a closed hearing unless theparent requestsan open hearing and be conducted in accordance withprocedural due process rights, including the following:
(1) The right of the partiesto be accompanied and advised by counsel and by individuals with specialknowledge or training with respect to the problems of children withdisabilities;
(2) the right of the parties to bepresent at the hearing;
(3) the right of the parties to confrontandcross-examine witnesses who appear in person at the hearing, either voluntarilyor as a result of the issuance of a subpoena;
(4) the right of the parties to present witnesses inperson ortheir testimony by affidavit, including expert medical, psychological oreducational testimony;
(5) the right of the parties to prohibit the presentation ofanyevidence at the hearing which has not been disclosed to the oppositeparty at least five days prior to the hearing, including any evaluationscompleted by that date and any recommendations based on such evaluations;
(6) the right to prohibit the other party from raising, at the due processhearing, any issue that was not raised in the due process complaint notice orin a prehearing conference held prior to the hearing;
(7) the right of the parties to have a written or, at theoption of theparent, an electronic, verbatim record of the hearing; and
(8) the right to a written or, at the option of the parent, an electronicdecision, including findings of facts and conclusions.
(c) Except as provided by subsection (a), each due processhearing, other than an expeditedhearing under K.S.A. 72-993, andamendments thereto, shall beheld not later than 35days from the date on whichthe request therefor is received. The parties shall be notified inwriting of the time and place of the hearing at least five days prior thereto.At any reasonable time prior to the hearing, theparent and thecounsel or advisor of the involved child shall be given access to allrecords, tests, reports or clinical evaluations relating to the proposedaction.
(d) (1) Except as otherwise provided in K.S.A. 72-993,andamendmentsthereto,during thependency of any proceedings conducted under this act, unless the agency andparent otherwiseagree, the child shall remain in the then-current educational placement of suchchild.
(2) If proceedings arise in connection with the initial admission of thechild to school, thechild shall be placed in the appropriate regular education classroom or programin compliancewith K.S.A. 72-1111, and amendments thereto, unless otherwise directed pursuanttoK.S.A. 2009 Supp.72-992a,and amendments thereto.
(e) Subject to the provisions of K.S.A. 72-973a, andamendments thereto,the agency shall appoint a hearing officer for the purpose of conductingthe hearing. Members of the state board, the secretary of social andrehabilitation services, the secretary of corrections, the commissioner ofthe juvenile justice authority, and members of any board or agencyinvolved in theeducation ofthe child shall not serve as hearing officers. No hearing officer shall be anyperson responsible for recommending the proposed action upon whichthehearing is based, any person having a personal orprofessional interest which wouldconflict with objectivity in the hearing, or any person whois an employee of thestate board or any agency involved in the education of the child. A personshall not be considered an employee of the agency solely because the person ispaid by the agency to serve as a hearing officer. Each agency shall maintain alist of hearing officers. Such list shall include a statement of thequalifications of each hearing officer. Each hearing officer and each statereview officer shall be qualifiedin accordance with standards and requirements established by the state boardand shall have satisfactorily completed a training program conducted orapproved by the state board.
(f) (1) Any party to a due process hearing who has grounds to believethat the hearing officercannot afford the party a fair and impartial hearing due to bias, prejudice ora conflict of interestmay file a written request for the hearing officer to disqualify such officerand have anotherhearing officer appointed by thestate board. Any such written request shall state the grounds for the requestand the facts uponwhich the request is based.
(2) If a request for disqualification is filed, the hearing officer shallreview the request anddetermine the sufficiency of the grounds stated in the request. The hearingofficer then shallprepare a written order concerning the request and serve the order on theparties to the hearing. Ifthe grounds are found to be insufficient, the hearing officer shall continue toserve as the hearingofficer. If the grounds are found to be sufficient, the hearing officerimmediately shall notify thestate board and request the state board to appoint another hearing officer.
(g) (1) Except as provided in paragraph (2), the decision of the hearingofficer in each dueprocess hearing shall be based on substantive grounds and a determination ofwhether the childreceived a free appropriate public education.
(2) In due process hearings in which procedural violations are alleged, thehearing officer mayfind that the child did not receive a free appropriate public education only ifthe hearing officerconcludes the procedural violations did occur and those violations:
(A) Impeded the child's right to a free appropriate public education;
(B) significantly impeded the parents' opportunity to participate in thedecision making processregarding the provision of a free appropriate public education to the parents'child; or
(C) caused a deprivation of educational benefits.
(3) Nothing in this subsection shall be construed to preclude a hearingofficer from ordering alocal educational agency to comply with procedural requirements under this act.
(h) Whenever a hearing officer conducts any hearing,such hearing officer shall render a decision on the matter, includingfindings of fact and conclusions, not later than 10days after the close of the hearing. The decision shall bewritten or, at the option of theparent, shall be an electronic decision. Any action of the hearingofficer in accordance with this subsection shall be final, subject to appealand review in accordance withthis act.
History: L. 1974, ch. 290, § 14; L. 1977, ch. 241, § 2; L. 1978,ch. 286, § 2; L. 1980, ch. 216, § 3; L. 1983, ch. 237, § 1; L. 1986,ch. 318, § 127; L. 1991, ch. 218, § 3;L. 1999, ch. 116, § 20;L. 2005, ch. 171, § 9; July 1.
72-973.Due process meeting; due processrequirements; time limitations; access to records;hearing officers.(a) (1) Except as hereinafter provided, within 15 days of receipt of a dueprocess complaint noticefrom a parent, the agency shall convene a meeting with the parent and themember or members ofthe IEP team who have specific knowledge of the facts identified in thecomplaint, and arepresentative of the agency who has the authority to make binding decisions onbehalf of theagency. This meeting shall not include the agency's attorney unless the parentis accompanied byan attorney.
(2) At this meeting, the parent of the child shall discuss and explain thecomplaint, including thefacts that form the basis of the complaint and the agency shall be providedthe opportunity toresolve the complaint.
(3) If the meeting of the parties results in a resolution of the complaint,the parties shall execute awritten agreement that both the parent and therepresentative of the agency shall sign and that, at a minimum, includes thefollowing statements:
(A) The agreed upon resolution of each issue presented in the complaint;
(B) that each party understands that the agreement is legally binding uponthem,unless the partyprovides written notice to the other party, within three days of signing theagreement, that theparty giving notice is voiding the agreement; and
(C) if not voided, each party understands that the agreement may be enforcedin state or federalcourt.
(4) If a resolution of the complaint is not reached at the meeting held underthis subsection andthe agency has not resolved the complaint to the satisfaction of the parentwithin 30 days of theagency's receipt of the complaint, the due process hearing procedures shall beimplemented andall of the applicable timelines for a due process hearing shall commence. Alldiscussions thatoccurred during the meeting shall be confidential and may not be used asevidence in anysubsequent hearing or civil proceeding.
(5) A meeting shall not be required under this subsection if the parent andthe agency agree, inwriting, to waive such a meeting, or they agree to use mediation to attempt toresolve thecomplaint.
(b) Any due process hearing provided for under this act, shall beheld at a time and place reasonably convenient to theparent of theinvolved child, be a closed hearing unless theparent requestsan open hearing and be conducted in accordance withprocedural due process rights, including the following:
(1) The right of the partiesto be accompanied and advised by counsel and by individuals with specialknowledge or training with respect to the problems of children withdisabilities;
(2) the right of the parties to bepresent at the hearing;
(3) the right of the parties to confrontandcross-examine witnesses who appear in person at the hearing, either voluntarilyor as a result of the issuance of a subpoena;
(4) the right of the parties to present witnesses inperson ortheir testimony by affidavit, including expert medical, psychological oreducational testimony;
(5) the right of the parties to prohibit the presentation ofanyevidence at the hearing which has not been disclosed to the oppositeparty at least five days prior to the hearing, including any evaluationscompleted by that date and any recommendations based on such evaluations;
(6) the right to prohibit the other party from raising, at the due processhearing, any issue that was not raised in the due process complaint notice orin a prehearing conference held prior to the hearing;
(7) the right of the parties to have a written or, at theoption of theparent, an electronic, verbatim record of the hearing; and
(8) the right to a written or, at the option of the parent, an electronicdecision, including findings of facts and conclusions.
(c) Except as provided by subsection (a), each due processhearing, other than an expeditedhearing under K.S.A. 72-993, andamendments thereto, shall beheld not later than 35days from the date on whichthe request therefor is received. The parties shall be notified inwriting of the time and place of the hearing at least five days prior thereto.At any reasonable time prior to the hearing, theparent and thecounsel or advisor of the involved child shall be given access to allrecords, tests, reports or clinical evaluations relating to the proposedaction.
(d) (1) Except as otherwise provided in K.S.A. 72-993,andamendmentsthereto,during thependency of any proceedings conducted under this act, unless the agency andparent otherwiseagree, the child shall remain in the then-current educational placement of suchchild.
(2) If proceedings arise in connection with the initial admission of thechild to school, thechild shall be placed in the appropriate regular education classroom or programin compliancewith K.S.A. 72-1111, and amendments thereto, unless otherwise directed pursuanttoK.S.A. 2009 Supp.72-992a,and amendments thereto.
(e) Subject to the provisions of K.S.A. 72-973a, andamendments thereto,the agency shall appoint a hearing officer for the purpose of conductingthe hearing. Members of the state board, the secretary of social andrehabilitation services, the secretary of corrections, the commissioner ofthe juvenile justice authority, and members of any board or agencyinvolved in theeducation ofthe child shall not serve as hearing officers. No hearing officer shall be anyperson responsible for recommending the proposed action upon whichthehearing is based, any person having a personal orprofessional interest which wouldconflict with objectivity in the hearing, or any person whois an employee of thestate board or any agency involved in the education of the child. A personshall not be considered an employee of the agency solely because the person ispaid by the agency to serve as a hearing officer. Each agency shall maintain alist of hearing officers. Such list shall include a statement of thequalifications of each hearing officer. Each hearing officer and each statereview officer shall be qualifiedin accordance with standards and requirements established by the state boardand shall have satisfactorily completed a training program conducted orapproved by the state board.
(f) (1) Any party to a due process hearing who has grounds to believethat the hearing officercannot afford the party a fair and impartial hearing due to bias, prejudice ora conflict of interestmay file a written request for the hearing officer to disqualify such officerand have anotherhearing officer appointed by thestate board. Any such written request shall state the grounds for the requestand the facts uponwhich the request is based.
(2) If a request for disqualification is filed, the hearing officer shallreview the request anddetermine the sufficiency of the grounds stated in the request. The hearingofficer then shallprepare a written order concerning the request and serve the order on theparties to the hearing. Ifthe grounds are found to be insufficient, the hearing officer shall continue toserve as the hearingofficer. If the grounds are found to be sufficient, the hearing officerimmediately shall notify thestate board and request the state board to appoint another hearing officer.
(g) (1) Except as provided in paragraph (2), the decision of the hearingofficer in each dueprocess hearing shall be based on substantive grounds and a determination ofwhether the childreceived a free appropriate public education.
(2) In due process hearings in which procedural violations are alleged, thehearing officer mayfind that the child did not receive a free appropriate public education only ifthe hearing officerconcludes the procedural violations did occur and those violations:
(A) Impeded the child's right to a free appropriate public education;
(B) significantly impeded the parents' opportunity to participate in thedecision making processregarding the provision of a free appropriate public education to the parents'child; or
(C) caused a deprivation of educational benefits.
(3) Nothing in this subsection shall be construed to preclude a hearingofficer from ordering alocal educational agency to comply with procedural requirements under this act.
(h) Whenever a hearing officer conducts any hearing,such hearing officer shall render a decision on the matter, includingfindings of fact and conclusions, not later than 10days after the close of the hearing. The decision shall bewritten or, at the option of theparent, shall be an electronic decision. Any action of the hearingofficer in accordance with this subsection shall be final, subject to appealand review in accordance withthis act.
History: L. 1974, ch. 290, § 14; L. 1977, ch. 241, § 2; L. 1978,ch. 286, § 2; L. 1980, ch. 216, § 3; L. 1983, ch. 237, § 1; L. 1986,ch. 318, § 127; L. 1991, ch. 218, § 3;L. 1999, ch. 116, § 20;L. 2005, ch. 171, § 9; July 1.
