Happy Thanksgiving

To all who read the special education law blog, please have a great Thanksgiving.

It's one of my favorite holidays. First, I was born on a Thanksgiving day so the day has extra special meaning. The way my mother used to tell the story began with "it was a cold winter's night..." It gets worse from there.

Second, this holiday is about giving thanks and maybe thinking of those who are less fortunate. It's hard to argue with those noble goals. I know that times are tough for many, but I am an optimist and I firmly believe that things will get better for our economy soon.

So count your blessings, have some Turkey and enjoy the holiday.

Letter to Gerl; I'm Famous (Almost); Or When to Schedule an Expedited Hearing

Letter to Gerl, pretty cool, huh. Well it has finally appeared on the series of tubes, formerly known as, the internet. Back in early May, I received a policy clarification letter from the federal Office of Special Education Programs. Although these letters have no precedential value, they are entitled to some deference under principles of administrative law because OSEP is the federal agency charged with administering IDEA, the special education law. It was enjoyable seeing my name in a citation.

My question concerned the pesky new resolution meeting which has been required since the 2004 reauthorization. We knew that OSEP had determined that the 45 days for a hearing officer decision in an ordinary case does not begin until after the 30 day resolution period, subject to three exceptions (two of which are comprehensible.) I felt that it was a bit unclear in the context of expedited due process hearings that are held in certain cases alleging disciplinary changes of placement for students with disabilities. Under the expedited scenario, a due process hearing must be held within twenty school days of a due process hearing complaint being filed. It wouldn't really be "expedited" if the 15 calendar day resolution period had to expire before the twenty school days would begin being counted. So I asked for clarification.

In Letter to Gerl, OSEP agrees that the 15 calendar days runs concurrently with the 20 school days. The problem for due process hearing officers is that one must also permit five business days (isn't it fun how we use three different kinds of days) for disclosure of evidence prior to the actual hearing. If you are a hearing officer or you like math problems, take out a calendar and start with any Friday when we will pretend a complaint has been received, and you'll see how the scheduling of an expedited hearing can get hairy fast. Mark off 15 calendar days for the truncated resolution period- no hearing can be scheduled in that period. Then count off 20 school days to see the end of the period (assume for now that there are no holidays snow days or summer vacations to complicate this analysis.) That only leaves about ten weekdays to schedule a hearing, and remember to leave five business days for the disclosure of evidence. Then mark off ten school days for the decision deadline. Fun, no?

If you have access to the LRP online or print reporters, the cite is Letter to Gerl 108 LRP 65828 (OSEP 05/01/2008). Or you can go to the following OSEP website and scroll down to the 11th letter listed:

http://www.ed.gov/policy/speced/guid/idea/letters/2008-2/index.html

Reminder: Nov 21st Deadline for Comments on SPP Indicators

Tomorrow, Friday November 21st is the deadline for the public to comment on the revised State Performance Plan indicators developed by the Office of Special Education Programs to track state compliance with IDEA, the federal special education law. Please send them your comments; it is good for OSEP to know that all stakeholders are paying attention.

Please see the post on this blog from November 6, 2008 for details concerning how to comment as well as further discussion of the SPP indicators. There you will also find a preview of the comments that I submitted concerning the SPP indicators. I also want to thank blogger Christina Samuels of the On Special Education blog for picking up on some of my saucier comments in that post:

http://blogs.edweek.org/edweek/speced/2008/11/department_of_education_appear_1.html

Due Process Hearings: What Process is Due? Part I

As I mentioned, I just returned from a conference of the National Association of Hearing Officials. One of the great things about NAHO is the richness of diversity of the types of administrative hearings that are being done across the country.

Special education "due process" hearings as they are now done across the country resemble mini-trials. The rules of evidence are generally relaxed, but the proceeding is adversary in nature and requires generally 1 1/2 to 3 days to complete, if all goes well. Many of the people I meet at NAHO, however, do high-volume hearings. 15 to 20 hearings per week per HO is not unusual. Many welfare-type hearings are called due process hearings or fair hearings.

I have often wondered whether by using the term "due process" hearing, that those who created the special education hearing system, intended a less adversarial method of dispute resolution than the one that has developed. One of the current criticisms of the special education hearing system of today is that parents and school districts need to lawyer up and pay expensive expert witnesses- resulting in a system of procedural safeguards accessed primarily by the wealthiest citizens, leaving the poorer parents and school systems without as much legal recourse.

Thus I was intrigued by a presentation at the NAHO conference by Professor Rhoda Pierre Cato of Florida A & M University College of law concerning "Due Process: Fundamental Concepts - Practical Applications." In her session she advocated a more relaxed "Inquisitorial Method." More on this in the next installment.

What Makes a Hearing Officer Good?

I have just returned from the annual conference of the National Association of Hearing Officials. As usual, the sessions were excellent and the networking opportunities were great. I was recertified as a Certified Hearing Official, and I also spent a lot time with the usual suspects, of course. The highlight of the conference for me was receiving the Bill Kane Board of Directors Award for service to the Association and its members. It is an excellent conference for hearing officers of all types, although the membership includes a growing number of special ed HOs.

One of the more thoughtful participants asked me what traits or characteristics made a person a good hearing officer (of any kind - not just special ed). The context of the question is how do you interview potential hearing officers and how do you train new ones. I've gotten similar questions specific to special ed hearing officers through previous blog comments, but I've never thought about the context of hiring and training HOs. My initial response was fairness, professional demeanor and common sense. What I didn't know the answer to was how you interview for these traits or how you train after a hire. I know that the hearing officer job is more like an art than a science, and maybe that is why it is so hard to hire and train them. I like the metaphor of a paratrooper being dropped behind enemy lines.

I'm interested in what you think about this question. I know that we have a diverse readership made up of a large sample of people interested in special education law. Your thoughts and comments would be appreciated. Thanks.

Do Court Decisions Shape Special Education? Part II

In the first installment in this series I described a fascinating recent paper by Professor Samuel R. Bagenstos of the Washington University School of Law that concludes that courts do not have much of a role in shaping special education. The paper is available here: http://www.aei.org/docLib/20081010_Bagenstos3.15.08.pdf

His study finds that from 2000 to 2007, an average of only 374 federal lawsuits involving special education were filed per year in the United States. Considering that there about 6.6 million children receiving special education nationwide, this number is remarkably low.
By way of contrast, the author states that during a one year period ending on March 31, 2007, nearly 14,000 employment discrimination cases were filed in federal courts. As a result, the author concludes that the courts have little effect upon special education. I'm not sure that the comparison holds even though the disparity is huge. Because I have been a hearing officer for both kinds of cases, I think there are some problems with the direct comparison. First, there are a lot more employees with jobs than there are kids eligible for special ed. All employees have a race and a gender and a national origin. Many others have a religion, are over 40 or have a disability. All of these folks can claim discrimination. It should be expected that there are more opportunities for employees to file a lawsuit. It would be good to see a comparison between the percentage of employees who file and the percentage of special ed parents who file.

Second, those who file an employment discrimination claim with the federal agency, the EEOC, there is an investigation followed by a probable cause finding. Every claimant, whether probable cause is found or not, then gets a letter entitled RIGHT TO SUE with very specific instructions as to how to pursue the claim further in federal court. Special ed parents get no similar notice. Thus the comparison may be flawed because of the instructions to the potential plaintiff after step one.

Despite these differences, however, the numbers found by Professor Bagenstos still are very fascinating. We will discuss further the issues raised by this thought provoking article in future installments.

Obama Wins - Will New Secretary of Education Make a Difference?

Well the election is over. I was truly amazed. Until about six months ago, I did not think that an African-American could be elected President in my lifetime. I gladly stand corrected. We have come a long way since the Constitution designated blacks as three-fifths of a person for purposes of determining representation in Congress. Once again America inspires, and yes overcomes.

So for special education law and policy what will this mean? The first question will be who shall be the new Secretary of Education. My teaser in the headline for this post concerns whether the appointment will make any difference. I suspect that it will. I welcome your comments.

A number of interesting names have been floated. Who do you think should get the job? Here is a column listing some of the prominent candidates:
http://chronicle.com/free/2008/11/6631n.htm

By the way as the Edjurist has pointed out, the Obama transition team already has a website up and going. Education positions are listed here, but not much concerning special education. Also if you feel that you should be the new Secretary of Education, fill out the apply for jobs form here:

http://change.gov/

OSEP Alters SPP Indicators - You Can Comment

The agency charged with making sure that states enforce the special education law, the Office of Special Education Programs has revised state performance plan (SPP) indicators. these are the data that states submit to demonstrate compliance with IDEA. You can read them here:
http://dataserver.lrp.com/DATA/servlet/DataServlet?fname=Part_B_meas_table_final_10-08-08rr.pdf

They have been published in the federal register and the federal OMB is receiving comments.
http://www.ed.gov/legislation/FedRegister/other/2008-4/102208a.pdf

I have always been amazed at the SPP indicators. I think that the current NCLB-inspired theory that everything can be reduced to data and measured or assessed has hit its odd high point here. I particularly don't like the SPP indicators as to dispute resolution. All that states are assessed on is the percentage of settlements in mediations and resolution sessions (indicators 18 and 19) and compliance with timelines for due process complaints and state complaint procedures(indicators 16 and 17). That's it. So a state could have the worst mediators, complaint investigators and hearing officers in the world, not trained to meet the IDEA requirements as to qualifications, never get a determination right, or worse even be in the pocket of one party or the other and still pass muster with the federal regulatory agency if timelines are met and settlement rates are high. There is also no attempt to measure the wealth/income level of those who access these and other procedural safeguards. (Many of us suspect that all procedural safeguards are accessed predominantly by wealthier parents.) The SPP indicators for dispute resolution seem absurd. The previous round of comments about SPP indicators resulted in 37 pages of analysis by OSEP, yet almost none of it related to the dispute resolution indicators.
http://dataserver.lrp.com/DATA/servlet/DataServlet?fname=10-22-08-Att_L12-1820-0624_Part_B_SPP-APR_Comments_Discussion_10-02-08.pdf

The deadline for comments is November 21, 2008. To comment, you send an email to: oira_submission@omb.eop.gov or you can send via fax to (202) 395-6974. If you wish to send written comments, they should be addressed to the Office of Information and Regulatory Affairs, Attention: Education Desk Officer, Office of Management and Budget, 725 17th Street, NW., Room 10222, Washington, DC 20503. Commenters should include the following subject line in their response "Comment: collection #3870, IDEA Part B State Performance Plan and Annual Performance Report."