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MASSACHUSEnSTRIAL LIBRARIES 34404002309437 UMASS/AMHERST 312066 0367 3186 7 February 2008 MASS DOC KFM 2795.9 H3 H43 2008 Department 0/ EDUCATION Hearing Rules for Special Education Appeals These Rules replace andsupersede the Hearing Rulesfor SpecialEducation Appeals issued in July 2005. MASS KFM2795.9.H3 H43 2008 Hearing rules for special education appeals. DATE DUE m This item ay be kcjpt 14 Di\YS ITM] AY BETlENEWI ONLYC >NCE 11 CONTENTS SCOPE OF RULES HOW TO BEGIN AN ADMINISTRATIVE DUE PROCESS HEARING Rule I: Hearing Request .2 A. Who May File a Hearing Request B. Hearing Request Content C. Timeline for Requesting a Hearing D. Response to Hearing Request E. Sufficiency Challenge F. Resolution Session G. Amending the Hearing Request H. Representation-Attorney or Advocate Notice ofAppearance I. Intervention J. Joinder HOW A HEARING DATE IS SCHEDULED Rule 11: Hearing Schedule .6 A. Hearing Date B. Notice ofHearing C. Expedited Hearings D. Conference call Rule 111: Postponements/Advancements .8 A. Postponement B. Advisory Opinion Process C. Advancement TAKING A HEARING OFF CALENDAR Rule IV: OffCalendar 10 A. Defined B. Periodic Review THE PREHEARING CONFERENCE Rule V: Prehearing Conference 11 A. Hearing Request Prerequisite B. Purpose ofPrehearing Conference C. Both Parties Requesting D. One orNeither Party Requesting The MassachusettsDepartmentofEducation I I I I I I I I I iii E. Failure to Appearat a Prehearing Conference F. Telephonic Prehearing Conference EXCHANGE OF INFORMATION, MOTIONS, SUBPOENAS, EXHIBITS Rule VI: Informal/Formal Exchange ofInformation 12 A. Exchange by Agreement B. Discovery C. Objections/Protective Orders Rule VI1: Motions 14 A. Defined B. Filing a Motion C. Notice to Other Party D. Hearings and Rulings on a Motion E. Evidence Relating to a Motion Rule VIll: Subpoenas 15 A. Defined B. Issuance C. Contesting a Subpoena D. Enforcement Rule IX: Exhibits; Witness List A. Five Day Rule B. Exhibit Preparation HOW A HEARING IS CONDUCTED Rule X: Conduct ofHearing 16 A. General B. Hearing Officer Duties & Powers C. Evidence D. Evidentiary Standard E. Close ofHearing F. Failure to Appear Rule XI: Rights ofParties 19 A. Rights ofAll Parties B. Parent Rights The MassachusettsDepartmentofEducation I I I I I 1 IV HEARING DECISION Rule XII: Decision Without a Hearing 20 Rule XIII: Decision and Implementation ofDecision 20 A. Decision B. Finality C. Immediate Implementation Rule XIV: Rights ofAppeal; Placement Pending; Stay 21 A. Rights ofAppeal B. Placement During Appeal C. Stay ofDecision Rule XV: Compliance with Decision 2 Rule XVI: Record 21 DISMISSAL/CASE CLOSURE Rule XVII: Dismissal and Closure ofCase 22 A. Dismissal With and Without Prejudice Defined B. By Motion/Request ofParty C. By Order ofthe Hearing Officer D. Inactive Cases E. Withdrawal LEA ASSIGNMENT APPEALS Rule XVIII: Appeals ofMassachusetts Department ofEducation Assignments ofSchool District Responsibility 23 A. Hearing Request B. Applicable BSEA Rules C. Right ofAppeal The Massachusetts DepartmentofEducation Digitized by the Internet Archive 2015 in https://archive.org/details/hearingrulesfors00mass_2 Scope ofRules The Department ofEducation created the Bureau ofSpecial Education Appeals (BSEA) to ensure due process rights ofstudents with disabilities, parents, and public schools when a dispute arises concerning a student's educational program that cannot be resolved locally. The BSEA hasjurisdiction over disputes among parents, school districts, private schools, and state agencies involving any matter concerning the provision ofa free appropriate public education to a student with special needs. The BSEA has the authority to resolve educational disputes pursuant to Massachusetts state law M.G.L. c. 71B (popularly known as Chapter 766), and its implementing regulations, 603 CMR 28.00. The BSEA hasjurisdiction to resolve educational disputes under federal law as well, in accordance with 20 U.S.C. 1401 et seg. (the Individuals with Disabilities Education Act, "IDEA"), 29 U.S.C. 794 (Section 504 of the Rehabilitation Act of 1973) and the regulations promulgated thereunder, 34 CFR 300 and 34 CFR 104 respectively. CMR These hearing rules are governed by 603 28.00, federal due process procedures and the Massachusetts Administrative Procedure Act, M.G.L. C.30A. Unless modified explicitly by these Rules, hearings are conducted under the Formal Standard Adjudicatory Rules CMR ofPractice and Procedure, 801 1.01 et seq. These provisions require the BSEA to conduct fair and impartial hearings and to render written decisions that are based upon findings offact and supported by substantial evidence. TheMassachusettsDepartmentofEducation