Dispute Resolution Methods - Part IV

Continuing our discussion of the four dispute resolution mechanisms under IDEA, this week we will begin to examine the due process hearing and the major changes in the hearing process under the 2004 reauthorization and the new federal regulations. As many of you know, this is the method where a lot of my work is involved. I am a hearing officer for West Virginia and Utah, and a special hearing officer for Alaska. I work with and train hearing officers from many states, and I consult with states about their due process systems. Many of my comments to the feds when they were contemplating new regs involved the hearing process. Many of the changes in IDEA'04 and the new regs involve the hearing system. I think that Congress and OSEP were expressing at least some dissatisfaction with the hearing system. Special ed law fans should take note!

We will begin with the changes in hearing officer qualifications and the statute of limitations.

1. Qualifications for Hearing Officers.
Before the reauthorization changes took effect (on July 1, 2005 with the exception of the NCLB-related “highly qualified” requirements), the only qualification for a due process hearing officer was that the hearing officer not be an employee of the SEA or LEA. Section 615 (f)(3); and that he not have a personal or professional interest that would conflict with objectivity, 34 C.F.R. Section 300.508(a)(2)(old regs). IDEA'04 adds three more qualifications for due process hearing officers. The following new qualities are required in a hearing officer: the knowledge and ability to conduct hearings in accordance with standard legal practice; the knowledge and ability to write decisions in accordance with standard legal practice; knowledge of and ability to understand special education law. Section 615 (f)(3)(A)(ii)-(iv).
The changes in the qualifications for hearing officers are significant. The fact that the Congress amended this section signals at least some concern about hearing officers. SEA personnel who train and select hearing officers need to be mindful of these changes to the law. Those who train hearing officers should be people with experience in conducting due process hearings and in writing decisions thereafter. New hearing officers should be able to cite prior experience concerning these qualifications. OSEP has noted that pursuant to its general supervisory responsibility, each SEA must ensure that its hearing officers are sufficiently trained to meet the new qualifications established by IDEA. 71 Fed. Register No. 156 at page 46705 (August 14, 2006).

2. Statute of Limitations
IDEA’ 04 imposes a new statute of limitations. Unless state law imposes a contrary limitations period, a party must request a due process hearing within two years of the date that the party knew or reasonably should have known about the alleged action that forms the basis of the complaint. Section 615 (f)(3)(C). The new statute of limitations recognizes two exceptions – cases in which the parent was prevented from requesting the hearing due either to specific misrepresentations by the LEA that it had resolved the problem or to the LEA’s withholding of information that the IDEA requires it to provide. Section 615 (f)(3)(D).
OSEP clarified that a state may adopt a statute of limitations either shorter or longer than two years by statute or regulation, but not by common law, subject to the notification provisions of IDEA. 71 Fed. Register No. 156 at pages 46696-97 (August 14, 2006). It is the province of the hearing officer to determine whether a specific complaint has been filed within the statute of limitations and whether an amended complaint relates to a previous complaint. 71 Fed. Register No. 156 at pages 46698 (August 14, 2006).