Weekly Question!

The Endrew F decision has been around for a while now, is it making a difference for children with disabilities? #FAPE

Special Education Law 101- Part XVI #dph procedures

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 towrite 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:

http://www.directionservice.org/cadre/pdf/OSEP_Q&A_memo7-23-13.pdf

Sometimes My Job Is Pretty Cool #WhereIsJG

Weekly Question!

The Endrew F decision has been around for a while now, is it making a difference for children with disabilities? #FAPE

Weekly Question!

How will courts and hearing officers interpret Endrew F? #FAPE

Special Education Law 101 - Part XV #Burden of Persuasion

This is another in a periodic series on the nuts and bolts of special education law.  The series is intended as an overview of key concepts for beginners and a review for those readers who have been around the block.

The citations for information about due process hearings are:IDEA, § 615(f); 34 C.F.R. § 300.507 to .515

Concerning the burden of persuasion at due process hearings...

  

Schaffer v. Weast 546 U.S. 49, 126 S.Ct. 528, 44 IDELR 150 (2005). The SupremeCourt held that the burden of persuasion in an IDEA due process hearing is upon the party challenging the IEP.  The “burden of persuasion” involves which party loses if the evidence is closely balanced.  In any civil legal proceeding, if the evidence for both sides is equal, the party with the burden of persuasion loses.  The Court exempted from its decision, however, the burden of persuasion applicable in those states that have laws or regulations placing the burden upon the school district. Note that the burden of persuasion is not the same as the burden of going forward, which concerns which party goes first in presenting evidence.  To increase confusion, both the burden of persuasion and the burden of going forward are loosely referred to as "burden of proof" in legal circles.  (I'm not sure why!)

Concerning the IDEA due process hearing process, the Court in Weast noted that such hearings are deliberately informal.  The Court went on to note that the IDEA due process hearing was set up by Congress with the intention of giving the hearing officers the flexibility they need to ensure that each side can fairly present its evidence.

Weekly Question!

How will courts and hearing officers interpret Endrew F? #FAPE

Happy National Disability Employment Awareness Month #NDEAM

October is National Disability Employment Awareness Month. Here is the U. S. Department of Labor NDEAM website.  NDEAM started in 1945; here is a timeline. Here are some useful resources.  This page has some resources for educators about this celebration.

Related to this topic is the transition requirement under IDEA for children with IEPs as they approach life after secondary school. Here is our post explaining transition requirements.  Here is a post about a GAO report concerning transition for children with autism.

Weekly Question!

How will courts and hearing officers interpret Endrew F? #FAPE