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One question about special ed hearings that I get a lot is: when is the hearing officer decision to be issued? There is much confusion surrounding this, thanks in large part to some very confusing federal regulations. The timelines are not contained in IDEA, the statute. They exist only in the regulations promulgated by the Office of Special Education Programs, a division of the federal Department of Education. As always knowing where the bodies are... er, where to look is the key.
The general rule is that the decision by the hearing officer is due 45 days after the end of the thirty day resolution period. 34 C.F.R. §§ 300.510(b)(2), 300.515. Sounds easy, right? Just count 75 days from the filing of the complaint and you know the deadline. But no, why make it easy?
The federal regulations provide the following three exceptions where the 45 day timeline begins the day after one of three events: 1) the parties agree in writing to waive the resolution period; 2) after beginning mediation or the resolution meeting, the parties agree in writing that they cannot agree; and 3) the parties agree in writing to continue mediating after the 30 day period but later, one party withdraws from the mediation process. 34 C.F.R. § 300.510(c).
The third exception is particularly bizarre. It would seem to give the parties the option of mediating forever without triggering the deadline unless one party withdraws. The hearing officer would have little ability to manage the case under this scenario. All three options wreak havoc upon the calendars of hearing officers, lawyers for both sides and the parties.
The other major point to note is that the deadline for the hearing officer decision can be extended by the hearing officer upon a motion by one of the parties. 34 C.F.R. § 300.515(c). OSEP often seems to forget that this provision exists when it monitors state education agencies. It should be remembered by hearing officers that fairness often requires that a continuance be granted. The spirit of the timelines would militate in favor of short continuances, but surely they are sometimes necessary to ensure that all parties have an adequate opportunity to fairly present their evidence.
Next week we will take a look at how the timelines apply in expedited hearings involving disciplinary changes of placement. Spolier alert: the rules as to timelines are completely different! Welcome to the unsettling area of special education law.
The general rule is that the decision by the hearing officer is due 45 days after the end of the thirty day resolution period. 34 C.F.R. §§ 300.510(b)(2), 300.515. Sounds easy, right? Just count 75 days from the filing of the complaint and you know the deadline. But no, why make it easy?
The federal regulations provide the following three exceptions where the 45 day timeline begins the day after one of three events: 1) the parties agree in writing to waive the resolution period; 2) after beginning mediation or the resolution meeting, the parties agree in writing that they cannot agree; and 3) the parties agree in writing to continue mediating after the 30 day period but later, one party withdraws from the mediation process. 34 C.F.R. § 300.510(c).
The third exception is particularly bizarre. It would seem to give the parties the option of mediating forever without triggering the deadline unless one party withdraws. The hearing officer would have little ability to manage the case under this scenario. All three options wreak havoc upon the calendars of hearing officers, lawyers for both sides and the parties.
The other major point to note is that the deadline for the hearing officer decision can be extended by the hearing officer upon a motion by one of the parties. 34 C.F.R. § 300.515(c). OSEP often seems to forget that this provision exists when it monitors state education agencies. It should be remembered by hearing officers that fairness often requires that a continuance be granted. The spirit of the timelines would militate in favor of short continuances, but surely they are sometimes necessary to ensure that all parties have an adequate opportunity to fairly present their evidence.
Next week we will take a look at how the timelines apply in expedited hearings involving disciplinary changes of placement. Spolier alert: the rules as to timelines are completely different! Welcome to the unsettling area of special education law.
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