IDEA 2004: Building the Legacy
Part C (birth - 2 years old)
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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.
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