Sec.10-76h-6. Advisory opinion

(a) The department may, within its discretion, offer the parties to a due process hearing an advisory opinion process.

(b) Any party may submit to the due process unit a written request for an advisory opinion. In order to commence the advisory opinion process, a request for an advisory opinion may be submitted after, or simultaneously with, a request for hearing or before, or after, the convening of the prehearing conference, but before the hearing convenes. The advisory opinion process is not available after the hearing has been convened.

(c) The parties may jointly request an advisory opinion. One party may request an advisory opinion simultaneously providing a copy of the request to the other party. If the non-requesting party agrees to participate in the advisory opinion process, that party shall so notify in writing the due process unit and the requesting party within five calendar days from the receipt of the request.

(d) As may be necessary, the parties to the advisory opinion process shall request a postponement of a prehearing conference or of any scheduled hearing date. The hearing officer assigned to the full hearing shall reschedule such hearing date and other dates as appropriate with the cooperation of the parties. Such rescheduling shall not exceed 30 days from the initial full hearing date.

(e) If the parties agree to an advisory opinion hearing officer and if such hearing officer is available, the due process unit shall appoint such hearing officer. The hearing officer assigned to the advisory opinion process by agreement of the parties shall not be the hearing officer assigned to the full hearing. If the parties do not agree to an advisory opinion hearing officer, the due process unit shall assign an advisory opinion hearing officer for the advisory opinion who shall not be the hearing officer assigned to the full hearing. The advisory opinion hearing officer shall schedule a date consistent with the parties' identified date as indicated in the request for the advisory opinion process. The advisory opinion hearing officer shall send a notice to the parties confirming the date, time, and location of the advisory opinion proceeding as well as a copy of the advisory opinion procedure set forth in subsection (f) of this section.

(f) Each party shall exchange copies of documents intended to be submitted to the advisory opinion hearing officer and the names of no more than two (2) witnesses no later than five (5) calendar days prior to the advisory opinion proceeding. Each party shall simultaneously provide copies of the same documents and the witnesses' names to the advisory opinion hearing officer. If not already provided, the party who requested an advisory opinion shall provide a statement of the issues in dispute and a proposed resolution of those issues.

(g) The advisory opinion hearing officer shall accept only essential and reliable exhibits, which may include the most recent IEP, revisions to the IEP, educational evaluations, progress reports, transcripts, independent evaluations and teacher narratives.

(h) The parties shall agree in writing, prior to the commencement of the advisory opinion proceeding, to abide by the following procedures in the advisory opinion proceeding:

(1) The proceedings shall not be recorded or transcribed;

(2) In addition to the parent, special education director and an attorney or advocate for each party, only three (3) additional individuals may attend and/or participate for each party;

(3) The process shall not be open to the public;

(4) Witness presentations, whether in question and answer format or not, shall not be under oath;

(5) Unless the advisory opinion hearing officer determines otherwise, once the advisory opinion proceeding has begun, there shall be no adjournments;

(6) The parties' presentations shall be conducted as follows:

(A) The party requesting a change in special education or related services shall be allocated 45 minutes to present that party's case, and shall present no more than two witnesses. No cross-examination or objections shall be permitted during this time.

(B) The responding party shall then be allocated 45 minutes to present that party's case, and shall present no more than two witnesses. No cross-examination or objections shall be permitted during this time.

(C) The requesting party shall then have 15 minutes to ask questions of any witness or elaborate on any part of that party's case.

(D) The responding party shall then have 15 minutes to ask questions of any witness or elaborate on any part of that party's case.

(E) If both parties and the advisory opinion hearing officer agree, the number of witnesses and time limits in this subsection may be modified provided the advisory opinion process is completed in one day.

(7) The advisory opinion hearing officer may ask questions of any witness at any time; time consumed in responding to the hearing officer questions shall not extend a party's allocated 45 minute and 15-minute presentation periods.

(8) The advisory opinion hearing officer shall render an oral advisory opinion within 30 minutes of the close of presentations. The advisory opinion hearing officer need not respond to questions concerning such advisory opinion.

(9) After rendering an advisory opinion, an advisory opinion hearing officer may facilitate settlement discussions.

(10) The rendering of any advisory opinion shall have no effect on a party's right to proceed to a full due process hearing, nor on the outcome of any due process hearing, and the advisory opinion shall be confidential and shall not be admissible in any due process hearing.

(11) An advisory opinion hearing officer shall not be a witness in any subsequent due process hearing involving the issues raised in the advisory opinion process and shall be precluded from serving as a hearing officer in any later hearing involving issues raised in the advisory opinion process.

(Adopted effective July 1, 2000; Amended July 1, 2013)