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What makes a good special education hearing officer? It amazes me how widely people differ in their answers to this question.
This is the first in a series of posts on the topic of hearing officer qualifications. At the outset, please note that I have a number of potential biases here. First, I am a hearing officer and/or a mediator for four states. Second, I do a lot of special ed law consulting for states. Third, I have conducted hearing officer trainings at national conferences, at regional trainings and for a number of individual states. I have trained hearing officers from every state. I have definite opinions here and my business interests could color my thinking. So please bear that disclosure in mind.
Before we get to the notion of qualifications, though, let's back up and review what a "due process" hearing, as we call them in special education, really is. In special ed law, the party who disagrees, usually but not always the parent, has four options which may or may not be used in combination. States must make mediation available for such disputes. Since the 2004 amendments, mediation must be available at any point in the process. My view is that mediation is better suited to repairing the long-term relationship of the parties than the other options if the state properly trains, supports and compensates the mediators. The second option is a state complaint in which any entity (including an advocacy group or an out of state non-profit or a parent) can allege a violation of the Act. The state department of education personnel investigate the claim. These procedures vary widely and the quality of the investigations also varies. If a violation is found, the state may impose corrective actions, which now include the possibility of compensatory ed and reimbursement. (NOTE: state complaints are not specifically mentioned in IDEA. Although there are some references to "complaint" which could be construed as the state complaint procedures, this is not very clear.)
The third option is a due process hearing. This is an administrative hearing which closely resembles a trial in court, except that the rules of evidence are more relaxed and there is no jury. A due process hearing officer (it could be me) presides over the hearing, determines procedures, and eventually issues a decision. Encompassed within the due process hearing is the fourth option- the resolution session. When parents file a due process complaint, the school district must convene a resolution meeting within 15 days unless the parties waive the meeting in writing or agree to mediation instead. If the parties settle the dispute and sign an agreement, the agreement is binding except that either party may rescind the agreement within three business days. If the matter does not settle within 30 days, the case may proceed to hearing. As readers of this blog know, I have certain issues with the resolution session. So far, however, resolution sessions are reducing the number of hearings.
Under IDEA, a due process hearing may be requested with respect to any matter relating to the identification, evaluation or placement of the child or to the provision of a free and appropriate public education. IDEA § 615(b)(6).
Due process decisions, and in most jurisdictions, state complaint rulings, may be appealed to federal or state court. Most courts require parties to exhaust their administrative remedies by pursuing a due process hearing before filing a complaint in court, subject to certain exceptions. For more information on dispute resolution in special education see the CADRE website which is also listed as Special Education - Dispute Resolution under helpful links on the left side of the blog.
Before we get to the notion of qualifications, though, let's back up and review what a "due process" hearing, as we call them in special education, really is. In special ed law, the party who disagrees, usually but not always the parent, has four options which may or may not be used in combination. States must make mediation available for such disputes. Since the 2004 amendments, mediation must be available at any point in the process. My view is that mediation is better suited to repairing the long-term relationship of the parties than the other options if the state properly trains, supports and compensates the mediators. The second option is a state complaint in which any entity (including an advocacy group or an out of state non-profit or a parent) can allege a violation of the Act. The state department of education personnel investigate the claim. These procedures vary widely and the quality of the investigations also varies. If a violation is found, the state may impose corrective actions, which now include the possibility of compensatory ed and reimbursement. (NOTE: state complaints are not specifically mentioned in IDEA. Although there are some references to "complaint" which could be construed as the state complaint procedures, this is not very clear.)
The third option is a due process hearing. This is an administrative hearing which closely resembles a trial in court, except that the rules of evidence are more relaxed and there is no jury. A due process hearing officer (it could be me) presides over the hearing, determines procedures, and eventually issues a decision. Encompassed within the due process hearing is the fourth option- the resolution session. When parents file a due process complaint, the school district must convene a resolution meeting within 15 days unless the parties waive the meeting in writing or agree to mediation instead. If the parties settle the dispute and sign an agreement, the agreement is binding except that either party may rescind the agreement within three business days. If the matter does not settle within 30 days, the case may proceed to hearing. As readers of this blog know, I have certain issues with the resolution session. So far, however, resolution sessions are reducing the number of hearings.
Under IDEA, a due process hearing may be requested with respect to any matter relating to the identification, evaluation or placement of the child or to the provision of a free and appropriate public education. IDEA § 615(b)(6).
Due process decisions, and in most jurisdictions, state complaint rulings, may be appealed to federal or state court. Most courts require parties to exhaust their administrative remedies by pursuing a due process hearing before filing a complaint in court, subject to certain exceptions. For more information on dispute resolution in special education see the CADRE website which is also listed as Special Education - Dispute Resolution under helpful links on the left side of the blog.
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