Timeline Clarification (Response 5/22/2020)

Timeline Clarification
Question:

Could you please clarify the timeline and transition from investigation to hearing? It seems there is a ten-day period that starts after compiled evidence is shared, then another ten days for review and response to the draft report, then some number of days for the investigator to complete the report, then ten days to prepare for the hearing. 10/10/10. Is that correct? Is there a graphic that OCR could offer to make this clearer? Also, please clarify if the ten days to prepare for a hearing also applies to K-12, and whether that depends on whether the K-12 offers a formal hearing or administrative decision?

Answer:

The Rule specifies two sequential time periods that must be incorporated into the grievance process. Section 106.45(b)(5)(vi) requires a ten-day period for the parties (and their advisors) to review and respond to the evidence collected by the recipient. Section 106.45(b)(5)(vii) then requires a second ten-day period for the parties to review and respond to the recipient’s investigative report. The Rule does not specify any number of days between those two ten-day time periods. A recipient’s expectation as to how much time elapses between the first ten-day and the second ten-day period should be governed by the recipient’s ability to conclude the entire grievance process within the recipient’s own designated “reasonably prompt” time frames as required under 106.45(b)(1)(v).

Section 106.45(b)(6)(ii) clarifies that for recipients that are elementary and secondary schools (or otherwise are not postsecondary institutions), the second ten-day time period (i.e., the ten days for parties and advisors to review the investigative report under 106.45(b)(5)(vii)) may overlap with the written question procedure under 106.45(b)(6)(ii), such that the parties could use the same ten-day period while reviewing and responding to the investigative report to also submit their written questions and answers directed to the other parties and witnesses.

Section 106.45(b)(6)(ii) states (emphasis added): “With or without a hearing, after the recipient has sent the investigative report to the parties pursuant to paragraph (b)(5)(vii) of this section and before reaching a determination regarding responsibility, the decision-maker(s) must afford each party the opportunity to submit written, relevant questions that a party wants asked of any party or witness, provide each party with the answers, and allow for additional, limited follow-up questions from each party.” Thus, the parties’ rights under 106.45(b)(5)(vi)-(vii), and their rights to submit written questions under 106.45(b)(6)(ii), apply in K-12 regardless of whether the K-12 process ends in a hearing (live or otherwise) or no hearing. In the K-12 setting, the right to review and respond to the evidence and the investigative report, and the right to pose written questions, is not necessarily for the purpose of “preparing for a hearing” but is for the purpose of enabling all parties to meaningfully submit their view of the case to the investigator, and to the decision-maker, prior to the decision-maker reaching a determination regarding responsibility.