SECTION 101.1107. Administrative Hearings Concerning Individual Child Rights

(a) Applicability. This division applies only to hearings which involve the identification, evaluation, placement, or provision of appropriate early intervention services to a child and the child's family under Early Childhood Intervention. This process is also referred to as the due process complaint process or due process hearing process.

(b) Request for hearing.

(1) A parent may initiate a hearing on any matter described in subsection (a) of this section and in §101.907 of this subchapter (relating to Filing a Request for Review).

(2) The request for hearing must be in writing and filed as provided in §101.907 of this subchapter with the ECI assistant commissioner. The request for hearing is considered filed when actually received by the ECI assistant commissioner.

(c) Impartial hearing officer.

(1) Hearings shall be conducted by an impartial hearing officer appointed and selected as provided in §101.911 of this subchapter (relating to Assignment of Impartial Hearing Officer) and §101.915 of this subchapter (relating to Substitution of Impartial Hearing Officer). The impartial hearing officer must be a person who in addition to the qualifications listed in §101.911 of this subchapter:

(A) is knowledgeable about the provision of ECI comprehensive services;

(B) is knowledgeable about the provisions for ECI due process hearings, the needs of children and families, and the services available to the child and family;

(C) will listen to viewpoints about the due process complaint, examine information relevant to the issues, and seek to reach timely resolution of the due process complaint; and

(D) will provide a record of the proceedings, including a written decision.

(2) The person must not be an employee of DARS or any program involved in the provision of services or care to the child or the child's family, or have a personal or professional interest that would conflict with his or her objectivity in the hearing.

(3) A person is not an employee of an agency solely because the person is paid to implement the complaint resolution or hearing process.

(d) Hearing rights. In addition to those rights provided parties to a hearing under Division 1 of this subchapter (relating to General Rules), a party to a hearing shall have a right to:

(1) be accompanied and advised by counsel and by individuals with special knowledge or training with respect to early childhood intervention comprehensive services;

(2) prohibit the introduction of any evidence at the hearing that has not been disclosed to that party at least five days before the hearing;

(3) obtain a written or electronic verbatim record of the hearing; and

(4) obtain written findings of fact, conclusions of law, and decision.

(e) Hearing procedures. In addition to the procedures provided in Division 1 of this subchapter:

(1) The impartial hearing officer shall afford the parties an opportunity for hearing after reasonable notice of not less than 10 days, unless the parties have agreed otherwise.

(2) The impartial hearing officer may issue subpoenas and commissions to take depositions under the Government Code, Chapter 2001. Subpoenas and commissions to take depositions shall be issued in the name of DARS.

(3) The impartial hearing officer shall issue a final decision no later than 30 days after a request for hearing is filed. A final decision must be in writing and shall include findings of fact and conclusions of law, separately stated. Findings of fact must be based exclusively on the evidence and on matters officially noticed under the Government Code, Chapter 2001. The final decision shall be transmitted to each party by the hearing officer.

(4) A hearing officer may grant specific extensions of time beyond the period set out in paragraph (3) of this subsection at the request of a party.

(5) Hearings conducted under these sections are closed to the public unless the parent requests that the hearing be open.

(f) Child's status during proceedings.

(1) During the pendency of any administrative proceeding regarding a due process complaint, unless the parties agree otherwise, the child involved in the complaint must continue to receive appropriate comprehensive services previously agreed upon.

(2) If the complaint involves an application for initial admission to a program, the child must receive those comprehensive services not in dispute.

Source Note: The provisions of this §101.1107 adopted to be effective March 12, 2012, 37 TexReg 1706; amended to be effective December 31, 2012, 37 TexReg 9785