Sunday, November 23, 2008

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:

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