Continuing our discussion of the four dispute resolution mechanisms under IDEA, this week we will continue to examine the due process hearing and the major changes in the hearing process under the 2004 reauthorization and the new federal regulations. last week we examined changes concerning hearing officer qualifications and the statute of limitations. This week we will deal with the new requirement of hearing notice, including the sufficiency requirement, and amendment of the complaint/notice.
3. Hearing Notice
The changes to the law by IDEA'04 include a new requirement that before a party may have a due process hearing, the party must file a notice to the other party and the SEA including, among other things, a description of the nature of the problem, and a proposed resolution of the problem. Section 615 (b)(7)(B).
A party receiving a notice of due process hearing complaint must notify the hearing officer if it believes that the notice is insufficient to meet the statutory requirements. Section 615 (c)(2)(A). The notice of alleged insufficiency must be provided to the hearing officer within 15 days of receipt of the complaint. Section 615 (c)(2)(C). Within 5 days of receipt of such a notice of insufficiency, the hearing officer must make a determination on the face of the notice whether it meets the statutory requirements and immediately notify the parties. Section 615 (c)(2)(D). Given the very short timelines, such challenges will require prompt handling. For example, will there be a mini-hearing by telephone if time permits? OSEP has opined that there is no requirement that a party who questions the sufficiency of a complaint notice specify the basis for their belief., but where the hearing officer finds a notice not sufficient, he will identify how it is not sufficient so the filing party can have the opportunity to amend. . 71 Fed. Register No. 156 at page 46698 (August 14, 2006). The resolution meeting cannot be delayed even if the receiving party believes that the complaint is insufficient. . 71 Fed. Register No. 156 at page 46698 (August 14, 2006).
Although states may not require their use, states must develop model forms for due process complaints. 34 CFR Section 300.509; 71 Fed. Register No. 156 at pages 46699-46670 (August 14, 2006). Even where a party utilizes a model form developed by the SEA, the authority to determine the sufficiency of a complaint notice lies with the hearing officer. 71 Fed. Register No. 156 at pages 46699-46670 (August 14, 2006).
4. Amendment of the Due Process Hearing Notice/Complaint
Another new requirement in IDEA'04 provides that the party requesting the due process hearing "…shall not be allowed to raise issues at the due process hearing that were not raised in the (above-referenced) notice…," unless the other party agrees. Section 615 (f)(3)(B). see, 34 CFR Section300.511(d); 71 Fed. Register No. 156 at pages 46705 -06 (August 14, 2006).
The problem will arise in the form of an objection at a hearing that the party initiating the request for due process is raising a new issue that was not set forth in the written notice. Under IDEA'04, this is not permissible. The hearing officer will then have to carefully review the written notice to determine the issues of which the opposing party was given fair notice. Also, the hearing officer will have to consider what evidence should be considered in proving or disproving said issues.
The practical impact of this change is probably diminished to a large extent by another change to the law. New Section 615 (o) provides that nothing in Section 615 "… shall be construed to preclude a parent from filing a separate due process complaint on an issue separate from a due process complaint already filed." Most due process complaints are filed by parents. If an LEA is successful in restricting evidence offered by a parent on the grounds that it relates to an issue not raised by a complaint, and if the parent is represented by a lawyer who is familiar with the new special education law, the parent will simply file a new due process complaint on the issue excluded at the previous due process hearing. Because of the expense and time necessary for a due process hearing, and the apparent negative reaction by LEAs to having to spend such time and money, it is likely that the parties will often agree to permit the other party to present evidence of new issues unless it is too late in the hearing for the LEA to fairly respond.
One exception where this new provision may cause big problems is the case in which a parent proceeds pro se. Especially where a parent is not literate, or not functionally literate, it may be difficult to understand the new pleading and practice requirements related to the hearing request notice provisions. It should be noted that the literacy of the party is not set forth in the new statute as a factor to consider in the written notice and hearing issue provisions. By contrast, the portions of the law that relate to limitations on reimbursement for unilateral placement in a private school specifically provide that where a parent is illiterate or cannot write in English, the court or hearing officer may in their discretion consider these factors in whether to reduce or deny reimbursement for failure to provide written notice to the LEA. Section 612 (a)(10)(C)(iv)(II). This reimbursement/illiteracy provision was also changed to make reduction or denial discretionary rather than an absolute exception to reduction or denial. Nonetheless, there illiteracy at least remains as a consideration. No such provision is made for illiterate parents concerning the written hearing notice/ hearing issues portions of the law. OSEP has noted that it would expect that hearing officers would exercise appropriate discretion when considering request for amendments by parents who are not represented by legal counsel. 71 Fed. Register No. 156 at page 46699 (August 14, 2006).