Procedural Safeguards - The Series Part X

WASHINGTON - MARCH 02: The U.S. Supreme Court Building is seen on March 2, 2010 in Washington, DC. Today the high court is hearing arguments in the case of McDonald v the City of Chicago case that questions whether the Second Amendment is incorporated into the due process clause or the privileges or immunities clause of the fourteenth amendment, thus invalidating the city's handgun ban. (Image credit: Getty Images via @daylife)

This is the tenth installment in a multi-part series on procedural safeguards under the federal special education law, the Individuals With Disabilities Education Act. I work a lot in this area, so it is near and dear to my heart. Despite the importance of procedural safeguards. however, many issues in this area are misunderstood. I hope that the special education stakeholders who read this blog find the information in this series helpful.

Due Process Hearings

A due process hearing resembles a court trial. Increasingly, parties are represented by lawyers. Opening statements are made. Testimony is provided by parents, teachers, related service providers, administrators, and many others- often by expert witnesses. Although the formal rules of evidence are generally not applied, exhibits, or documentary evidence, are offered and admitted. The tone is increasingly adversarial. Either closing arguments are made or written briefs are submitted. Hearing officer decisions are generally lengthy and legalistic in tone. The decision of the hearing officer may be appealed to one or more courts.

Parents and local education agencies may file a due process complaint for any matter related to the identification, evaluation, educational placement or the provision of a free and appropriate public education to a child with a disability. IDEA §§ 615(f);615(b)(6).

IDEA imposes a two-year statute of limitations on due process complaints. Unless state law imposes a contrary limitations period, a party must request a due process hearing within two years of the date that the party knew or reasonably should have known about the alleged action that forms the basis of the complaint. § 615 (f)(3)(C). The statute of limitations recognizes two exceptions – cases in which the parent was prevented from requesting the hearing due either to specific misrepresentations by the LEA that it had resolved the problem or to the LEA’s withholding of information that the IDEA requires it to provide. § 615 (f)(3)(D). OSEP has clarified that a state may adopt a statute of limitations either shorter or longer than two years by statute or regulation, but not by common law, subject to the notification provisions of IDEA. 71 Fed. Register No. 156 at pages 46696-97 (August 14, 2006). It is the province of the hearing officer to determine whether a specific complaint has been filed within the statute of limitations and whether an amended complaint relates to a previous complaint. 71 Fed. Register No. 156 at pages 46698 (August 14, 2006).

In addition to the requirement that a hearing officer not have a personal or professional interest that would conflict with objectivity, three more qualifications for due process hearing officers were added in 2004. The following new qualities are required in a hearing officer: the knowledge and ability to conduct hearings in accordance with standard legal practice; the knowledge and ability to write decisions in accordance with standard legal practice; knowledge of and ability to understand special education law. § 615 (f)(3)(A)(ii)-(iv). The changes in the qualifications for hearing officers are significant. The fact that the Congress amended this section signals at least some concern about hearing officers. SEA personnel who train and select hearing officers need to be mindful of these changes to the law. Those who train hearing officers should be people with experience in conducting due process hearings and in writing decisions thereafter. New hearing officers should be able to cite prior experience concerning these qualifications. OSEP has noted that pursuant to its general supervisory responsibility, each SEA must ensure that its hearing officers are sufficiently trained to meet the new qualifications established by IDEA. 71 Fed. Register No. 156 at page 46705 (August 14, 2006).

IDEA provides that the party requesting the due process hearing “…shall not be allowed to raise issues at the due process hearing that were not raised in the (due process hearing) notice…,” unless the other party agrees. § 615 (f)(3)(B). see, 34 CFR §300.511(d); 71 Fed. Register No. 156 at pages 46705 -06 (August 14, 2006). However, note that IDEA § 615 (o) provides that nothing in § 615 “… shall be construed to preclude a parent from filing a separate due process complaint on an issue separate from a due process complaint already filed.”

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 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 § 300.515(d); 71 Fed. Register No. 156 at page 46707 (August 14, 2006).

Representation by Non-Attorneys in Due Process Hearings

Changes to the federal IDEA regulations effective on December 31, 2008 made an important change to the policy interpretation by OSEP regarding the representation of parties (primarily parents) by non-lawyers in due process hearings. Prior to the change, it had been the long-standing interpretation of OSEP that a non-lawyer could represent parents at a due process hearing in much the same way that a lawyer could represent a party. After certain lower courts declared such a practice to be a violation of “unauthorized practice” statutes, OSEP changed 34 C.F.R. Section 300.512 (a)(1) to specify that whether a party has the right to be represented by a non-lawyer at a due process hearing shall be determined by state law.

Some commenters, including this author, asked OSEP to clarify whether it was sufficient for a state by rule or regulation to specify that parties could be represented by non-lawyers or whether the ability of a lay advocate to represent parents is instead controlled by state law regarding the unauthorized practice of law. OSEP’s “response” was as follows:

Discussion: Whether an SEA may have a State regulation or procedural rule permitting non-attorney advocates to represent parties at due process hearings or whether that issue is controlled by State attorney practice laws is determined by State law. If State law is silent on the question of whether non-attorney advocates can represent parties in due process hearings, there is no prohibition under the Act or its implementing regulations on nonattorney advocates assuming a representational role in due process hearings. 73 Fed Register No. 231 at page 73018 (12/1/2008)

Here is the OSEP Topic Brief on Due Process Hearings:

 Here is the OSEP Questions and Answers On Procedural Safeguards and Due Process Procedures For Parents and Children With Disabilities:

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