Sec. 10-76h. Special education hearing and review procedure. Mediation of disputes.
Sec. 10-76h. Special education hearing and review procedure. Mediation of
disputes. (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 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 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, the parties may agree in writing to request the Commissioner of Education to
appoint a state mediator. Upon the receipt of a written request for mediation, signed by
both parties, the commissioner shall appoint a mediator knowledgeable in the fields and
areas significant to the review of the special educational needs of the child or pupil. 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 Department of Education and to the parties
whether the mediation was successful or unsuccessful.
(2) If the dispute is not resolved through mediation, either party may proceed to a
hearing.
(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.)
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.
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.
See Sec. 52-434d re pilot program established by Chief Court Administrator for resolution of special education administrative contested cases.
Cited. 179 C. 694. Cited. 198 C. 445. Cited. 228 C. 699. Cited. 229 C. 1.
Cited. 34 CS 277. Cited. 35 CS 501. Cited. 38 CS 712. Cited. 39 CS 443; Id., 443. Cited. 44 CS 527. Cited. 45 CS 57.
Subsec. (c):
Cited. 207 C. 674.
Cited. 36 CS 285.
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. Cited. 36 CS 285.