This is another in a series of posts comprising an introduction to special education law. This series is meant to be an introduction for newbies and a refresher course for more experienced readers. Please let us know what you think about the series.
Today's post and the next post concern some unusual procedural issues in due process hearings. The due process hearing is the administrative law equivalent of a trial in a civil action.
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).
Here is a
recent Q & A document from OSEP on Dispute Resolution Procedures under IDEA
Part B. For due process, see Q C-1 to
C-27; for the resolution process, see Q D-1 to D-25, and for expedited hearings
see Q E-1 to E-9:
Here is the
OSEP Topic Brief on Due Process Hearings:
http://idea.ed.gov/explore/view/p/%2Croot%2Cdynamic%2CTopicalBrief%2C16%2C
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