CENTER FOR LAW AND EDUCATION

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Question:       Does the Individuals with Disabilities Education Act (IDEA) require a full-fledged impartial due process hearing before a hearing officer may order a child placed into an interim alternative educational setting?

Answer:         Yes. IDEA authorizes a hearing officer to order a child temporarily placed in an interim alterative educational setting under certain circumstances for behavior substantially likely to result in injury to the child or to others if the child’s current placement is maintained, pursuant to 20 U.S.C. §1415(k)(2), and to review unilateral school decisions placing a child into an interim setting for certain incidents involving weapons or illegal drugs. See 20 U.S.C. §1415(k)(6)(2). In either situation, a due process hearing meeting all ususal IDEA criteria is required.

            In talking about hearing officer authority to order such placements for behavior substantially likely to result in injury , the statute states that "[a] hearing officer under this section may order...." 20 U.S.C. §1415(k)(2) (emphasis added). "This section," of course, is §1415, which sets out, among other things, the general right to a due process hearing, see 20 U.S.C. §1415(f), and the rights of parties to such hearings. See 20 U.S.C. §1415(h). Thus the expectation under the statute is that hearing officer orders into interim alternative educational settings will come only in connection with the kind of hearing ordinarily contemplated/authorized by §1415. Note also that 20 U.S.C. §1415(f)(1) expressly states that [w]henever a complaint has been received under subsection (b)(6) or (k) of this section, the parents involved shall have an opportunity for an impartial due process hearing...." (Emphasis added). Thus parents are entitled to the same "impartial due process hearing" regardless of whether the matter arises under 1415(k) and concerns placement in an interim alternative educational setting, or whether it stems from a more routine IDEA dispute under §1415(b)(6).

            In addition, the IDEA regulations promulgated March 12, 1999, 64 Fed. Reg. 12405 et seq., explicitly state that hearings concerning placement by a hearing officer in an interim alternative educational setting (or renewal of such placement) must meet general requirements regarding hearing officer impartiality, and the rights of parties to hearings. See new 34 C.F.R.§300.528, incorporating by reference §§300.508 and 300.509. Note that this regulation addresses "expedited hearings" and that, unlike the statute, the regulation addressing hearing officer authority to order placement in an interim alternative educational setting states describes the hearing through which this may occur as an "expedited due process hearing." See new 34 C.F.R. §300.521. The Department of Education explained in its commentary to the regulations that it uses the term "expedited due process hearing" because this is the term used in the legislative history. See 64 Fed. Reg. at 12630 (March 12, 1999). Finally, the Department's commentary also stresses that hearings regarding initial placement in an interim alternative educational setting (under 34 C.F.R. §300.521) and hearings to renew them (under 34 C.F.R. §300.526) must meet all usual IDEA procedural requirements for due process hearings, and afford parents an equal opportunity to present evidence. See 64 Fed. Reg. at 12621 and 12630.

ELO

10/99