§ 10-76h — Special education hearing and review procedure. Mediation of disputes.

Connecticut § 10-76h

• Jurisdiction: Connecticut
• Title 10: Education and Culture
• Ch. 164: Educational Opportunities

Text

(a)(1) A parent or guardian of a child requiring special education and related services pursuant to sections 10-76a to 10-76g, inclusive, a pupil if such pupil is an emancipated minor or eighteen years of age or older requiring such services, a surrogate parent appointed pursuant to section 10-94g, or the Commissioner of Children and Families, or a designee of said commissioner, on behalf of any such child in the custody of said commissioner, may request a hearing of the local or regional board of education or the unified school district responsible for providing such services whenever such board or district proposes or refuses to initiate or change the identification, evaluation or educational placement of or the provision of a free appropriate public education to such child or pupil. Such request shall be made by sending a written request to such board or district with a copy to the Department of Education. (2) The local or regional board of education or the unified school district responsible for providing special education and related services for a child or pupil requiring such services under sections 10-76a to 10-76g , inclusive, may request, upon written notice to the parent or guardian of such child, the pupil if such pupil is an emancipated minor or is eighteen years of age or older, the surrogate parent appointed pursuant to section 10-94g , or the Commissioner of Children and Families, or a designee of said commissioner, on behalf of any such child or pupil in the custody of said commissioner, a hearing concerning the decision of the planning and placement team established pursuant to section 10-76d , whenever such board or district proposes or refuses to initiate or change the identification, evaluation or educational placement of or the provision of a free appropriate public education placement to such child or pupil, including, but not limited to, refusal of the parent or guardian, pupil if such pupil is an emancipated minor or is eighteen years of age or older or the surrogate parent appointed pursuant to section 10-94g , to give consent for initial evaluation or reevaluation or the withdrawal of such consent. The local or regional board of education or unified school district shall provide a copy of the request to the Department of Education. In the event a planning and placement team proposes private placement for a child or pupil who requires or may require special education and related services and the parent, guardian, pupil if such pupil is an emancipated minor or is eighteen years of age or older or surrogate parent appointed pursuant to section 10-94g withholds or revokes consent for such placement, the local or regional board of education shall request a hearing in accordance with this section and may request mediation pursuant to subsection (f) of this section, provided such action may be taken only in the event such parent, guardian, pupil or surrogate parent has consented to the initial receipt of special education and related services and subsequent to the initial placement of the child, the local or regional board of education seeks a private placement. For purposes of this section, a “local or regional board of education or unified school district” includes any public agency which is responsible for the provision of special education and related services to children requiring special education and related services. (3) The request for a hearing shall contain a statement of the specific issues in dispute. (4) A party shall have two years to request a hearing from the time the board of education proposed or refused to initiate or change the identification, evaluation or educational placement or the provision of a free appropriate public education placement to such child or pupil provided, if the parent, guardian, pupil or surrogate parent is not given notice of the procedural safeguards, in accordance with regulations adopted by the State Board of Education, including notice of the limitations contained in this section, such two-year limitation shall be calculated from the time notice of the safeguards is properly given. (b) Upon receipt of a written request for a special education hearing made in accordance with subsection (a) of this section, the Department of Education shall appoint an impartial hearing officer who shall schedule a hearing which shall be held and the decision written and mailed not later than forty-five days after the commencement of the hearing pursuant to the Individuals with Disabilities Education Act, 20 USC 1400 et seq., as amended from time to time. An extension of the forty-five-day time limit may be granted by the hearing officer at the request of either party to the hearing. (c) (1) The Department of Education shall provide training to hearing officers in administrative hearing procedures, including due process, and in the special educational needs of children. Hearing officers and members of hearing boards shall not be employees of the Department of Education or any local or regional board of education, unified school district or public agency involved in the education or care of the child. A person who is paid to serve as a hearing officer is not deemed to be an employee of the Department of Education. No person who participated in the previous identification, evaluation or educational placement of or the provision of a free appropriate public education to the child or pupil nor any member of the board of education of the school district under review, shall be a hearing officer or a member of a hearing board. (2) Both parties shall participate in a prehearing conference to resolve the issues in dispute, if possible and narrow the scope of the issues. Each party to the hearing shall disclose, not later than five business days prior to the date the hearing commences, (A) documentary evidence such party plans to present at the hearing and a list of witnesses such party plans to call at the hearing, and (B) all completed evaluations and recommendations based on the offering party's evaluations that the party intends to use at the hearing. Except for good cause shown, the hearing officer shall limit each party to such documentary evidence and witnesses as were properly disclosed and are relevant to the issues in dispute. A hearing officer may bar any party who fails to comply with the requirements concerning disclosure of evaluations and recommendations from introducing any undisclosed evaluation or recommendation at the hearing without the consent of the other party. (3) The hearing officer or board shall hear testimony relevant to the issues in dispute offered by the party requesting the hearing and any other party directly involved, and may hear any additional testimony the hearing officer or board deems relevant. The hearing officer or board shall hear the testimony offered by the local or regional board of education or the unified school district responsible for providing special education to a child or pupil first in any dispute concerning the provision of free appropriate public education. The hearing officer or board may require a complete and independent evaluation or prescription of educational programs by qualified persons, the cost of which shall be paid by the board of education or the unified school district. The hearing officer or board shall cause all formal sessions of the hearing and review to be recorded in order to provide a verbatim record. (d) (1) The hearing officer or board shall have the authority (A) to confirm, modify, or reject the identification, evaluation or educational placement of or the provision of a free appropriate public education to the child or pupil, (B) to determine the appropriateness of an educational placement where the parent or guardian of a child requiring special education or the pupil if such pupil is an emancipated minor or eighteen years of age or older, has placed the child or pupil in a program other than that prescribed by the planning and placement team, or (C) to prescribe alternate special educational programs for the child or pupil. If the parent or guardian of such a child who previously received special education and related services from the district enrolls the child, or the pupil who previously received special education and related services from the district enrolls in a private elementary or secondary school without the consent of or referral by the district, a hearing officer may, in accordance with the Individuals with Disabilities Education Act, 20 USC 1400 et seq., as amended from time to time, require the district to reimburse the parents or the pupil for the cost of that enrollment if the hearing officer finds that the district had not made a free appropriate public education available to the child or pupil in a timely manner prior to that enrollment. In the case where a parent or guardian, or pupil if such pupil is an emancipated minor or is eighteen years of age or older, or a surrogate parent appointed pursuant to section 10-94g , has refused consent for initial evaluation or reevaluation, the hearing officer or board may order an initial evaluation or reevaluation without the consent of such parent, guardian, pupil or surrogate parent except that if the parent, guardian, pupil or surrogate parent appeals such decision pursuant to subdivision (4) of this subsection, the child or pupil may not be evaluated or placed pending the disposition of the appeal. The hearing officer or board shall inform the parent or guardian, or the emancipated minor or pupil eighteen years of age or older, or the surrogate parent appointed pursuant to section 10-94g , or the Commissioner of Children and Families, as the case may be, and the board of education of the school district or the unified school district of the decision in writing and mail such decision not later than forty-five days after the commencement of the hearing pursuant to the Individuals with Disabilities Education Act, 20 USC 1400 et seq., as amended from time to time, except that a hearing officer or board may grant specific extensions of such forty-five-day period in order to comply with the provisions of subsection (b) of this section. The hearing officer may include in the decision a comment on the conduct of the proceedings. The findings of fact, conclusions of law and decision shall be written without personally identifiable information concerning such child or pupil, so that such decisions may be promptly indexed and published and available for public inspections pursuant to sections 4-167 and 4-180a . (2) If the local or regional board of education or the unified school district responsible for providing special education for such child or pupil requiring special education does not take action on the findings or prescription of the hearing officer or board within fifteen days after receipt thereof, the State Board of Education shall take appropriate action to enforce the findings or prescriptions of the hearing officer or board. Such action may include application to the Superior Court for injunctive relief to compel such local or regional board or school district to implement the findings or prescription of the hearing officer or board without the necessity of establishing irreparable harm or inadequate remedy at law. (3) If the hearing officer or board upholds the local or regional board of education or the unified school district responsible for providing special education and related services for such child or pupil who requires or may require special education on the issue of evaluation, reevaluation or placement in a private school or facility, such board or district may evaluate or provide such services to the child or pupil without the consent of the parent or guardian, pupil if such pupil is an emancipated minor or is eighteen years of age or older, or the surrogate parent appointed pursuant to section 10-94g , subject to an appeal pursuant to subdivision (4) of this subsection. (4) Appeals from the decision of the hearing officer or board shall be taken in the manner set forth in section 4-183 , except the court shall hear additional evidence at the request of a party. Notwithstanding the provisions of section 4-183 , such appeal shall be taken to the judicial district wherein the child or pupil resides. In the event of an appeal, upon request and at the expense of the State Board of Education, said board shall supply a copy of the transcript of the formal sessions of the hearing officer or board to the parent or guardian or the emancipated minor or pupil eighteen years of age or older or surrogate parent or said commissioner and to the board of education of the school district or the unified school district. (e) Hearing officers and members of the hearing board shall be paid reasonable fees and expenses as established by the State Board of Education. (f) (1) In lieu of proceeding directly to a hearing, pursuant to subsection (a) of this section, any party may request mediation through the Mediation Services Coordinator, employed pursuant to section 10-76z . Upon the receipt of a request for mediation, the coordinator shall, in accordance with the notification process pursuant to section 10-76aa , and, if all parties agree to mediate, appoint a mediator, and invite all parties to a mediation with a person selected from the list of special education mediators maintained by said coordinator. The mediator shall attempt to resolve the issues in a manner which is acceptable to the parties. The mediator shall certify in writing to the Bureau of Special Education and to the parties whether the mediation was successful or unsuccessful. (2) If the dispute is not resolved through mediation, any party may proceed to a hearing. (g) The Department of Education shall provide translations into the most commonly spoken languages in the state on its Internet web site of the plain language resources on such site explaining the process by which the department resolves complaints and the hearing process established pursuant to this section. See Sec. 10-184a re exemption of local or regional boards of education or State Board of Education from providing special education for children being educated at home or in private school.

Legislative History

(1967, P.A. 627, S. 10; 1971, P.A. 667, S. 1–6; P.A. 73-556, S. 1–3; P.A. 75-94; 75-438; 75-493, S. 1–4; P.A. 76-436, S. 296, 681; P.A. 77-603, S. 6, 125; 77-614, S. 302, 610; P.A. 78-47; 78-132; 78-218, S. 67; 78-224, S. 1–6; 78-280, S. 1, 127; P.A. 79-87, S. 1, 2; P.A. 80-138, S. 1, 3; 80-175, S. 1, 5; P.A. 83-338, S. 1, 2; P.A. 84-284, S. 1, 2; P.A. 85-312, S. 1, 2; P.A. 88-317, S. 54, 107; P.A. 91-277, S. 2, 6; P.A. 93-91, S. 1, 2; 93-352, S. 2, 3; 93-353, S. 10, 52; P.A. 94-245, S. 28, 46; P.A. 95-237, S. 3, 7; P.A. 96-146, S. 7, 12; P.A. 00-48, S. 4, 12; P.A. 03-76, S. 11; June 30 Sp. Sess. P.A. 03-6, S. 5–7; P.A. 06-18, S. 4; P.A. 23-137, S. 47.) History: 1971 act created section, replacing special program of 1967 act; P.A. 73-556 amended Subsec. (c) to place 30-day deadline on establishment of hearing board, amended Subsec. (d) to require hearing within 30 days and to require transcriptions of formal sessions and amended Subsec. (e) to require decision within 60 days of first meeting, to require state board to take action by substituting “shall” for “may”, to include “county” of residence in reference to common pleas court and to require that copies of transcripts be sent to parent or guardian and to board of education if requested to do so in the event of an appeal; P.A. 75-94 added exception to 60-day deadline for decision in Subsec. (e) for cases requiring independent diagnosis; P.A. 75-438 incorporated former Subsec. (b) into Subsec. (a) as Subdiv. (2) and inserted new Subsec. (b) allowing mediation by secretary of the state board; P.A. 75-493 amended section to allow action on behalf of child in his custody by commissioner of children and youth services; P.A. 76-436 amended Subsec. (e) to substitute superior court for court of common pleas and to specify judicial districts, effective July 1, 1978; P.A. 77-603 made appeals in accordance with Sec. 4-183 except with regard to location; P.A. 77-614 substituted commissioner of education for secretary of the state board of education, effective January 1, 1979; P.A. 78-47 amended Subsec. (b) to change deadline for mediation results from 15 to 30 days after request for mediation is received; P.A. 78-132 changed hearing board from at least three persons to one or more and excluded education department employees from serving as one-member boards in Subsec. (c); P.A. 78-218 substituted “local or regional” boards for boards “of the school district”; P.A. 78-224 clarified review process by making provisions in Subsec. (a)(1) applicable to administrative review to be followed by hearing if requested and deleting former provisions relating to hearing and appeal and making Subdiv. (2) and subsequent subsections applicable to hearings and mediation procedures, also including in Subdiv. (2) a 30-day period for making request, deleting 30-day periods in Subsecs. (c) and (d) and amending Subsec. (e) to change deadline for decision from within 60 days of first meeting to within 30 days of request for hearing and to replace exception for cases requiring independent diagnosis with general provision regarding extensions; P.A. 78-280 deleted reference to counties in Subsec. (e); P.A. 79-87 deleted references to repealed Sec. 10-94a, amended Subsec. (a) to require notice to be sent within 15 days of request for review rather than within 10 days of the review, allowed mediation “in lieu of” review rather than “following” review and amended Subsec. (c) to require “impartial” hearing board, allowing deletion of provision excluding education department members from serving as one-person boards; P.A. 80-138 amended Subsec. (e) to give board authority to judge appropriateness of parental placement as opposed to program prescribed by planning and placement team; P.A. 80-175 allowed action by emancipated minors or pupils 18 or older on their own behalf and amended Subsec. (a) to allow school board responsible for child to initiate review procedure; P.A. 83-338 amended Subsec. (e) to provide for exception to appeal on the record if court finds that presentation of evidence is warranted; P.A. 84-284 substantially revised special education appeal procedure; P.A. 85-312 amended section by adding references to unified school districts and authorization to apply for injunctive relief to enforce order of hearing officer or board without necessity of establishing irreparable harm or inadequate remedy at law; P.A. 88-317 inserted reference to Sec. 4-180a in Subsec. (e)(1), effective July 1, 1989, and applicable to all agency proceedings commencing on or after that date; P.A. 91-277 added provision in Subsec. (a) that the hearing may address the refusal to give consent for evaluation or placement in special education or the withdrawal of such consent, added provision in Subsec. (b) re mailing, making technical changes and removing requirement that the parties participate in conciliation procedures prior to convening the hearing, deleted Subsec. (c) which outlined the conciliation procedures, relettering the remaining Subsecs. and in Subsec. (d)(1) adding provision allowing the hearing officer to order special education evaluation and placement in instances where consent has been refused and adding Subdiv. (3) re provision of special education without consent of guardian or parent, and added Subsec. (f) re mediation; P.A. 93-91 substituted commissioner and department of children and families for commissioner and department of children and youth services, effective July 1, 1993; P.A. 93-352 amended Subsec. (a) to apply the provisions of the section concerning a local or regional board of education or a unified school district to a public agency responsible for the provision of education and services to children requiring special education, effective August 15, 1993; P.A. 93-353 amended Subsec. (a)(4) to specify the consent is for “preplacement” evaluation and “initial” placement and to add the provision concerning the refusal of consent in the event a planning and placement team proposes private placement and amended Subsec. (b) to remove an exception for the time limit as provided in Subsec. (d) and to substitute the basis for an extension by the hearing officer from “for compelling reasons” to “at the request of either party to the hearing”, effective July 1, 1993; P.A. 94-245 added new Subsec. (c)(2) re disclosure of documentary evidence and a list of witnesses and renumbered former Subdiv. (2) as (3), effective June 2, 1994; P.A. 95-237 amended Subsec. (a) to change the reasons for which a hearing may be requested, require issues to be raised at a planning and placement team meeting prior to a hearing, specify that the subsection does not limit the right to initiate a planning and placement team meeting at any time, add Subdiv. (2) re statement of specific issues and Subdiv. (3) re time limit and notice requirements and make technical changes, amended Subsec. (c) to add the prehearing conference requirement and limitation on the introduction of evidence and witnesses to those properly disclosed and testimony relevant to the issues in dispute and make technical changes, and amended Subsec. (d) to allow the hearing officer to include a comment on the conduct of the proceedings in his decision and make technical changes, effective July 1, 1995; P.A. 96-146 amended Subsec. (c) to remove requirement that the hearing officer or board appointed be knowledgeable in the fields and areas significant to the review of the special education needs of the child or pupil and to add requirement that the Department of Education provide training to hearing officers, effective July 1, 1996; P.A. 00-48 amended Subsec. (c)(2) to clarify the time frame for disclosure is “business” days, to require the disclosure of completed evaluations and recommendations based on evaluations that the offering party intends to use at the hearing, and to allow the hearing officer to bar a party who failed to comply with the disclosure provisions from introducing undisclosed evaluations and recommendations without the consent of the other party, effective July 1, 2000; P.A. 03-76 made technical changes in Subsecs. (a)(1), (b), (c)(1) and (f)(1), effective June 3, 2003; June 30 Sp. Sess. P.A. 03-6 amended Subsec. (a)(1) by deleting provisions re the raising of issues at hearings not raised at planning and placement team meetings and re a parent's rights to request a planning and placement team meeting at any time, by making technical changes and by adding provision re parental consent to initial receipt of special education services prior to a hearing for private placement of a child against the parent's wishes, amended Subsec. (c)(2) by deleting provision requiring prehearing conference to be at least 10 days prior to date hearing is scheduled to commence, and amended Subsec. (d) by changing provision re evaluation or placement in special education to provision re initial evaluation or reevaluation in Subdiv. (1), by adding provisions re reevaluation and placement in private school or facility in Subdiv. (3) and by replacing provision in Subdiv. (4) re exception to appeal hearing procedure in Sec. 4-183 concerning presentation of evidence and review of such evidence for its value with provision re hearing of additional evidence at a party's request, effective August 20, 2003; P.A. 06-18 amended Subsec. (a) by requiring a copy of the written request for hearing be sent to the Department of Education, by eliminating the 7-day notification period in Subdiv. (1), by redesignating language re consent hearing concerning decision by planning and placement team as new Subdiv. (2) and adding therein language re a copy of the request for the hearing, and by redesignating existing Subdivs. (2) and (3) as Subdivs. (3) and (4), amended Subsec. (b) by adding language re impartial hearing officer and re federal Individual with Disabilities Education Act, amended Subsec. (c)(1) by deleting language re appointment of impartial hearing officer or board, amended Subsec. (d)(1) by redesignating existing language as Subparas. (A),(B) and (C) and by adding language re previously received services and re federal Individuals with Disabilities Education Act, amended Subsec. (f)(1) by deleting language re 30-day requirements, and made technical changes in Subsecs. (a)(4), (b) and (d)(1), effective July 1, 2006; P.A. 23-137 amended Subsec. (c)(3) by adding provisions re hearing testimony from boards of education first in disputes concerning provision of free appropriate public education, amended Subsec. (d)(1) by adding “promptly indexed and published and” re making decisions available for public inspection, amended Subsec. (f)(1) by deleting the requirement for all parties to agree to request mediation in writing, adding provisions to allow any party to request mediation, requiring appointment of a mediator from the list of special education mediators if all parties agree to mediate and replacing Department of Education with Bureau of Special Education in which to certify results of the mediation and added Subsec. (g) re translations of plain language resources re hearing and complaint resolution processes, effective July 1, 2023. Cited. 179 C. 694; 198 C. 445; 207 C. 674; 228 C. 699; 229 C. 1. On the basis of section's clear and unambiguous language, as well as established and extensive administrative scheme, plaintiffs must exhaust administrative remedies before filing a claim for the denial of a FAPE under section; plaintiffs' claims set forth an allegation for negligent hiring, not the denial of a FAPE, and thus is not subject to dismissal for failure to exhaust administrative remedies. 334 C. 564. Cited. 34 CS 277; 35 CS 501; 36 CS 285; 38 CS 712; 39 CS 443; Id., 443; 44 CS 527; 45 CS 57. Subsec. (e): Cited. 33 CS 175. Statute does not authorize hearing board to order reimbursement of expenses for the education of a child in past year. 34 CS 257.