Chapter 483 Oregon Laws 2001

AN ACT

HB 3398

Relating to special education hearings; creating new provisions; amending ORS 343.165 and 343.167; and declaring an emergency.

Be It Enacted by the People of the State of Oregon:

SECTION 1. ORS 343.165 is amended to read:

343.165. (1) A hearing shall be conducted pursuant to rules of the State Board of Education if:

(a) The parent requests a hearing to contest the determination of the school district concerning the identification, evaluation, individualized education program, educational placement or the provision of a free appropriate public education to the child; or

(b) The school district requests a hearing to obtain a decision regarding whether its identification, evaluation, individualized education program or educational placement of the child is appropriate or whether the district’s proposed action is necessary to provide the child with a free appropriate public education.

(2) A hearing described in subsection (1) of this section must be requested within two years after the date of the act or omission that gives rise to the right to request a hearing under subsection (1) of this section.

[(2)] (3) The State Board of Education shall adopt rules that establish when a school district is obligated to initiate a contested case hearing to ensure that a student with disabilities is provided with a free appropriate public education.

[(3)] (4) The board’s rules in subsection (1) of this section shall be as consistent as possible with the procedures applicable to a contested case under ORS 183.310 to 183.550. However, the board’s rules shall provide that:

(a) Any party to a hearing has the right to prohibit the introduction of any evidence that has not been disclosed to that party at least five business days before the hearing; and

(b) The hearing officer may prohibit the introduction of any evidence regarding evaluations and recommendations based on those evaluations that a party intends to use at the hearing, if the evidence has not been disclosed to the other party at least five business days before the hearing, unless the other party consents to the introduction of the evidence.

[(4)] (5) Notwithstanding subsection [(3)] (4) of this section, in an expedited hearing the evidence must be disclosed to the other party not later than two business days before the hearing.

[(5)] (6) The parent shall be entitled to have the child who is the subject of the hearing present at the hearing and to have the hearing open to the public.

[(6)] (7) When either party requests, an expedited hearing shall be held in a dispute over a disciplinary action for a child with a disability if:

(a) The child’s parent disagrees with a determination that the child’s behavior was not a manifestation of the child’s disability or with any decision regarding the child’s educational placement; or

(b) The school district maintains that it is dangerous for the child to be in the child’s current educational placement during the pendency of the hearing.

[(7)] (8) The hearing shall be conducted by an independent hearing officer appointed by the Superintendent of Public Instruction. The hearing officer shall not be:

(a) An employee of a school district involved in the education or care of the child;

(b) An employee of the Department of Education; or

(c) A person having any personal or professional interest which would conflict with the person’s objectivity in the hearing.

SECTION 2. ORS 343.167 is amended to read:

343.167. (1) If the finding at the hearing held under ORS 343.165 is that the identification, evaluation and educational placement by the district are appropriate and that the child is being provided a free appropriate public education, the hearing officer shall decide in support of the determination of the district.

(2) If the finding at the hearing is that the identification, evaluation or educational placement is not appropriate or that the child is not being provided a free appropriate public education, the hearing officer shall grant appropriate relief within the hearing officer’s scope of authority.

(3) The decision shall be entered not later than 45 days after the request for hearing is filed unless an extension has been granted by the hearing officer at the request of the parent or the school district. Copies of the decision shall be sent to the parent and to the school district accompanied by a statement describing the method of appealing the decision.

(4) In expedited hearings conducted pursuant to ORS 343.165 [(6)] (7), the State Board of Education shall adopt rules that require a decision within 45 days, without exceptions or extensions.

(5) Pursuant to rules of the State Board of Education, the Superintendent of Public Instruction shall bill the school district for all reasonable costs connected with the appointment of an independent hearing officer and the conduct of a due process hearing. The district shall make payment to the Department of Education for the cost of the hearing within 30 days of receipt of the billing.

SECTION 3. The amendments to ORS 343.165 by section 1 of this 2001 Act apply to acts or omissions that give rise to the right to request a hearing under ORS 343.165 (1) occurring on or after the effective date of this 2001 Act.

SECTION 4. This 2001 Act being necessary for the immediate preservation of the public peace, health and safety, an emergency is declared to exist, and this 2001 Act takes effect on its passage.

Approved by the Governor June 20, 2001

Filed in the office of Secretary of State June 20, 2001

Effective date June 20, 2001

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