Monday, February 4, 2008

Dispute Resolution Mechanisms - Part VII

Concluding our discussion of the four dispute resolution options 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 the changes to the "stay put" provision and procedural violations. This week we will deal with changes concerning NCLB-type issues and miscellaneous hearing issues.


NCLB-type Issues
IDEA ’04 imposes new NCLB-type qualifications for special education teachers as well as related services personnel and paraprofessionals. Section 612(a)(14)(B)&(C). However, IDEA also provides that no due process hearing or court action may be filed because of failure to provide highly qualified personnel, although a parent may file a state complaint concerning staff qualifications. Section 612(a)(14)(E). See 34 CFR Section 300.156(e). OSEP clarifies that a parent may not file a due process complaint about a student, or a judicial action on behalf of a class of students, because personnel are not highly qualified, although a parent or other individual or organization may file a state complaint with the SEA alleging this issue. 71 Fed. Register No. 156 at pages 46612 -13 (August 14, 2006).
It is anticipated, however, that due process complaints alleging that by not providing highly qualified teachers or other staff, an LEA has failed to provide FAPE to a student. In particular, the portion of the definition of FAPE concerning state standards may be implicated. It will be very interesting to see how these cases will be decided.


Miscellaneous Hearing Issues
OSEP noted that states have considerable latitude in developing procedural rules for due process hearings and that determinations upon procedural matters not specifically addressed by IDEA are within the sound discretion of the hearing officer so long as the parties’ right to a timely hearing is not denied. 71 Fed. Register No. 156 at page 46704 (August 14, 2006). Other items left to the discretion of the hearing officer include the following: decisions concerning appropriate expert witness testimony. 71 Fed. Register No. 156 at page 46691 (August 14, 2006); ruling upon compliance with timelines and the statute of limitations. 71 Fed. Register No. 156 at page 46705 (August 14, 2006); determining when dismissals are appropriate. 71 Fed. Register No. 156 at page 46699 (August 14, 2006); whether the non-complaining party may raise other issues at the hearing that were not raised in the due process complaint. 71 Fed. Register No. 156 at page 46706 (August 14, 2006); the meaning of the word “misrepresentation” for purposes of the exception to the statute of limitations for filing a due process complaint. 71 Fed. Register No. 156 at page 46706 (August 14, 2006); and providing proper latitude for pro se parties. 71 Fed. Register No. 156 at page 46699 (August 14, 2006).
Concerning representation of parties by non-attorney advocates in due process hearings, OSEP intends to issue additional regulations on this topic in the future. 71 Fed. Register No. 156 at page 46699 (August 14, 2006).
Concerning the five business day rule for disclosure of evidence prior to a due process hearing, OSEP commented that nothing prevents parties from agreeing to a shorter period of time. 71 Fed. Register No. 156 at page 46706 (August 14, 2006).
As to the location and time of due process hearings, OSEP resisted the suggestion that they be conducted in a “mutually convenient” time and place, fearing that the large number of participants to a hearing would necessitate long delays if mutually convenient times and locations were required. The regulations retain the requirement that hearings be conducted at a time and place that is reasonably convenient to the parents and student. 34 CFR Section 300.515(d); 71 Fed. Register No. 156 at page 46707 (August 14, 2006).
In states with two tier due process systems, OSEP clarified that the 90 day period for appeals begins to run from the date of the decision of the state review officer. 71 Fed. Register No. 156 at page 46707 (August 14, 2006).


ADDITIONAL RESOURCES regarding dispute resolution mechanisms: OSEP has also published a Question and Answer document, Questions and Answers On Procedural Safeguards and Due Process Procedures For Parents and Children With Disabilities (OSEP January 2007). The Q & A document is available at the OSEP idea website: http://idea.ed.gov/ In addition, NICHCY, also known as the National Dissemination Center for Children with Disabilities, is in the process of issuing a series of training modules on IDEA'04, and one of the modules yet to be offered will discuss dispute resolution options under the IDEA. Look for the training module soon online at http://idea.ed.gov/ and at: http://www.nichcy.org/training/contents.asp

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