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Note:  This document has been delivered to the Office of the Federal Register but has not yet been scheduled for publication.  The official version of this document is the document that is published in the Federal Register.

language in §303.435 and 34 CFR 300.511(c) is not

identical, both sections require a due process hearing officer to have specific knowledge about the Act and the proper conduct of legal proceedings. Additionally,

§303.435 and 34 CFR 300.511(c) both require that the due

process hearing officer be impartial using similar criteria regarding personal and professional conflicts of interest and employment status. Since there is no substantive

difference between §303.435 and 34 CFR 300.511(c), it is

not necessary to amend §303.435 as requested.

Changes: None.

Comment: One commenter requested that the Department

clarify §303.435(b)(2). Specifically, the commenter asked

whether §303.435(b)(2) would permit an employee of a lead

agency who is an administrative law judge, to act as a

hearing officer if that employee’s job is to adjudicate

disputes such as presiding over due process hearings under the Act and that employee is operating under a system of mandates pursuant to a State executive order designed to ensure his or her independence and impartiality.

Discussion: Section 303.435(b)(1) provides that a hearing officer may not be an employee of the lead agency or an EIS provider involved in the provision of early intervention services or care of the child, and the hearing officer may