Not much caselaw exists concerning how a hearing should be run. This is likely a result of the standard generally applied to the judicial review of administrative hearing officer decisions. Courts will likely overturn a decision for procedural reasons only where the hearing officer has "abused his discretion." Ex parte Medical Licensure Comm'n of Alabama 897 So. 2d 1093,
1096-97 (Ala. 2004). This is a vague standard, but it implies at least some deference to the rulings and orders made by the administrative hearing officer. The reason why the administrative hearing officer is vested with substantial discretion in determining hearing procedures is that discretion “… is indispensable whenever individuality is needed…The administrative process allows discretion in order to take care of the need for individualized justice…” Old Abe Co. v. New Mexico Mining Comm. 908 P.2d 776, 121 N.M. 83 (NM S.Ct. 12/11/95).
I'm an advocate for extensive training of hearing officers concerning how to apply these discretionary procedures in a fair manner. I'll admit a bias here: some of my work involves training hearing officers, for special education hearings and for other types of hearings. Nonetheless, I strongly believe that high quality skills training is essential for hearing officers. That is why I will be giving skills-based trainings at the Hearing Officer Academy next month.
In any event, the work of the special education hearing officer is very important. The hearing officer is essential to the proper working of the due process system. I recognize that due process is only one dispute resolution mechanism, and, indeed, I advocate mediation as the mechanism most likely to restore the relationship of parents and school personnel. Hearings, however, remain an essential procedural safeguard that is absolutely necessary to the guarantee of FAPE to children with disabilities. Accordingly, hearing officers should be respected. They also should receive sufficient training and support from the state department of education to be able to do their jobs well. Their independence and freedom to make their own decisions should never be challenged.
You know, Jim, I'd say hearing officers who actually know special ed law, and are capable of applying it correctly and justly, do garner respect.
ReplyDeleteIn this writer's opinion, however, not only do not all hearing officers misunderstand and misapply IDEA, but MOST hearing officers misunderstand and misapply IDEA. Hearing officer training, therefore, is a great start towards remedying this problem.
Jim Rosenfeld runs a fine academy out of Seattle University. Ironically, I've run across administrative law judges who've attended this training, yet continue to make rulings that go against what they have been taught. It's like they either weren't paying attention, or worse -- they paid attention but refuse to listen and are content to be off on their own.
Thanks for your comment.
ReplyDeleteI know that some hearing officers don't make the grade, but most of the ones I have met seem pretty good. Training alone does not make one fair and just.
There are some states that provide little or no training. Most states grossly underpay due process HOs. This doesn't justify a bad result, but lack of respect from the State can only cause the process to go downhill!
Jim: I second everything you say. Hearing Officers are undervalued, both professionally and economically. I would just like to add one point of clarification. In some states, such as New York, there is a two step adminstrative process. The Impartial Hearing Officer makes the inital decision which can be reviewed by the State Review Officer. That review is done on paper. Additionally, at least in New York some Impartial Hearing Officers are not attorneys. (This may have recently been changed with respect to new hearing officers; I am not frankly sure.)While there are very few none attorneys,in my view, admission to the bar with at least 8 years of experience is an absolute minimum qualification.
ReplyDeleteMitch Rubinstein
Thanks Mitch,
ReplyDeleteGood Point. I will do a post on two tier due process systems.
JG
I really appreciate your post and you explain each and every point very well.Thanks for sharing this information.And I’ll love to read your next post too.
ReplyDeleteThanks for your nice post. i do agree with the point that high quality skills training is essential for hearing officers. It is necessary to make the right decision.
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