My Powers Are Beyond Your Comprehension - A Belated Footnote

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As you know from previous posts, I have an expansive view of the powers of the administrative hearing officer. Although other give us little respect, I believe that our work is closer to that of spies, or symphony conductors or maybe paratroopers.  We are an interesting and talented group.  Our powers are broad.  Indeed, my powers are beyond your comprehension.

As I read through he special education law cases, every year however, I come across an example or two of some strange strategic decisions by my fellow HOs.  Here is an example of some unusual choices by a hearing officer in a special education case.  NOTE: it pays to read the footnotes- the following is the entire text of footnote 3 by the court in Milay ex rel YRM v. Surry Sch Dept   54 IDELR 191, n. 3 (D. ME 04/21/2010). Would you have handled it differently?

3The Court is disquieted about a number of aspects of the hearing officer's handling of this case. One example suffices. On January 8, 2008, the hearing officer held a pre-hearing conference and scheduled the hearing for January 22, 23, 25, 28, and 29 at the offices of the Department of Health and Human Services in Ellsworth. Admin. Record at H196 (Admin. Rec.). Following the setting of the hearing, Ms. Millay began to complain about the hearing dates on numerous grounds, ranging from child care problems to a lack of preparation time. Id. at H211, 227. She requested that a new hearing officer be assigned, a request that was denied. Id. at H216-17.
Perhaps, Ms. Millay's persistent objections to the scheduled hearing dates explain what happened next. On Monday, January 21, 2008, Ms. Millay wrote Maine Department of Education (DOE) and said that she had been to the doctor and had been ordered to rest for two days at a minimum with an illness "that could become very serious." Id. at H240. The hearing officer may have concluded that Ms. Millay was feigning illness to obtain a continuance, and as the hearing had been scheduled for some time and multiple witnesses had been subpoenaed, the hearing officer wrote Ms. Millay on January 21, 2008, asking her to fax him a copy of her doctor's order by 4 p.m. that afternoon. Id. at H253. The hearing officer emailed her again at 3:30, noting that he had received no response and asking again for a physician's order. On January 21, 2008, the hearing officer issued a scheduling order: "Having received no response to the e-mail messages sent earlier today, tomorrow's hearing will be held as currently scheduled and will begin at 9 AM in the offices of the Maine Department of Health and Human Services in Ellsworth, Maine." Id. at H266.
The next document is a letter dated January 22, 2008, which was hand-delivered to Ms. Millay on Wednesday, January 23, indicating that he had not heard from her and she had failed to appear at the scheduled hearing. He notified her that he was cancelling the hearing for January 22 and 23, but would proceed at 9:00 a.m. on Friday, January 25. Id. at H268, 269. On January 24, 2008, the hearing officer issued another scheduling order, noting that Ms Millay had requested a continuance for medical reasons, that she had not supplied a doctor's note, and that Surry objected to a continuance. Id. at H276. The hearing officer wrote that if Ms. Millay does not appear, he would "explore ways to provide [Ms. Millay] with an opportunity to both cross examine the school's witnesses and present her own witnesses, should she choose to participate in this proceeding." Id. He ordered her to produce signed written documentation from her doctor supporting her assertions that she was 'ordered to rest' and therefore could not attend the hearings scheduled for January 22, 23 and 25, 2009." Id.
By letter dated January 25, 2008, Ms. Millay wrote the Maine DOE, enclosing copies of her physician's notes. Id. at H278-29. She said she had returned from her appointment at 5:30 too late to mail the doctor's notes. Id. One doctor's note confirmed that she was suffering from "a febrile illness," that she had been advised to rest "for the next 48 h," and that she "may be contagious." Id. at H279. Another doctor's note dated January 24, 2008, said that the doctor recommended that Ms. Millay remain at home "for 48-72 hrs to recover from an acute illness." Id.
The hearing officer issued another scheduling memorandum on Sunday January 27, 2008, confirming that Ms. Millay failed to appear at the January 25, 2008 hearing, that it had gone on without her, and that Ms. Millay had not complied with the hearing officer's request for medical documentation. Id. at H280. He threatened to dismiss her case with prejudice. Id. Ms. Millay wrote to the hearing officer on Monday January 28, 2008 that she had "complied with your demand in every way possible: by email, telephone calls that you have not answered, and notes that I have sent (it was not possible to deliver a doctor's note to you in regard to my attendance on Friday after my second visit to the doctor, since it took place Thursday evening, but the note was mailed on Friday)." Id. at H283.
Ms. Millay wrote another letter on Tuesday, January 29, 2008, saying that she had not been able to respond earlier because she was "far too sick to copy and mail [the doctor's note] at the time I received it, due to high fever and symptoms of a quite serious nature." Id. at H284. This time she enclosed a third doctor's note dated January 29, 2008:
To Whom It May Concern
I evaluated and treated Mrs. Millay today for an ongoing viral upper respiratory illness and acute bronchitis. She had been seen by providers in my office now on three occasions due to the persistence and severity of her symptoms. It does appear that she is now suffering from acute bronchitis. She should not be over exerting herself, and her symptoms would preclude any productive participation in any formal meetings or committees.
I have informed Mrs. Millay that her condition will likely take between two and four weeks for resolution, and I would not recommend scheduling any meetings earlier than 2 weeks from today.
Id. at H286. On January 30, 2008, Ms. Millay emailed the hearing officer, objecting to the fact that three days of hearings had been held without her, pointing out that even though the witnesses might be available for later cross-examination, she would have objected to one expert witness' testimony in its entirety. Id. at H288.
On January 31, 2008, the hearing officer, having received the requested medical documentation, conceded that Surry, "has presented its case in chief and has rested." He acknowledged that "[t]he student's mother has not attended any of the hearing days held to date, because of illness. The hearing officer has, as of today, January 31, been provided with written medical documentation for all of those absences." Id. at H290. He granted a continuance to allow Ms. Millay to recover from her acute bronchitis and ordered a transcript of the hearing to date for her review. Id.
The Court realizes this series of events was unusual. In view of Ms. Millay's repeated attempts to continue the scheduled hearing, the hearing officer was within his rights to be skeptical and to demand medical documentation. The record does not clarify why there was such a long gap in communication between January 21, 2008, when Ms. Millay first notified the hearing officer of her illness and January 30, 2008, when the hearing officer finally received medical documentation. Ms. Millay is not blameless. During this interval, she managed to make it to medical appointments in Blue Hill, and presumably she could have appeared at the scheduled hearing with the medical notes and appealed for a continuance. As she in fact had acute bronchitis, her sick appearance should itself have been convincing. She also failed to respond promptly to the increasingly urgent email notices and orders. Finally, it is true that Ms. Millay tends to insist on punctiliousness when it comes to Surry, but to excuse her own failures as the result of self-representation. Ms. Millay has demonstrated an unquestioned tenacity in pressing YRM's legal rights, and it would seem uncharacteristic of her not to even appear at the due process hearing involving her child. Nevertheless, when Ms. Millay failed to appear at the hearing, the hearing officer allowed Surry to present its entire case over a three day period without the student being represented at all.
What is troubling is there is no suggestion that, other than sending emails, anyone attempted to personally contact Ms. Millay during this interval. This is rural coastal Maine; Surry, where Ms. Millay lives, abuts Ellsworth, where the hearing was held, and she must live just a few miles away. Instead of emailing demands and orders, it would seem that someone (other than the hearing officer) could have called or visited Ms. Millay to see if she was indeed ill. Instead, the hearing officer assumed that she was misrepresenting her medical condition and ordered the hearing to proceed with only the school represented by counsel in attendance.
A hearing officer has the undoubted right to control the scheduling of an IDEA hearing. At the same time, the First Circuit has characterized the hearing as a "due process hearing." Rose v. Yeaw, 214 F.3d 206, 209 n.1 (1st Cir. 2000). It is a statutory right with constitutional implications. Under the IDEA, the parties are accorded "the right to present evidence and to confront, cross-examine, and compel the attendance of witnesses; the right to be accompanied and advised by counsel and by individuals with special knowledge or training with respect to the problems of children with disabilities; the right to a written, or at the option of the parents, electronic verbatim record of such hearing; and the right to a written or, at the option of the parents, electronic findings of fact and decisions." Id. (citing 20 U.S.C. § 1415(h)). The IDEA was enacted "to ensure that children with disabilities and their parents are guaranteed procedural safeguards with respect to the provision of free appropriate public education by such agencies." Id. at 209 (citing 20 U.S.C. § 1415(a)). In light of the significant rights at stake, even though the DOE, Surry, and their witnesses would have been significantly inconvenienced and even though the hearing officer continued the hearing for a couple of days, a sensible solution should have involved determining whether Ms. Millay was in fact as ill as she claimed, and if she was not, imposing a carefully devised sanction.
The history of this case confirms that Ms. Millay's pro se status complicates and occasionally frustrates the proceedings, and communication has been less than ideal. Typically, a hearing officer could promptly establish whether an attorney or represented party seeking a continuance was truly ill, and, in representing her child, Ms. Millay must be held to the same standards as an attorney. At the same time, the right to a FAPE rests not with the pro se parent, but with the child, and in sanctioning the parent, the presiding officer should strive not to penalize the student. The sanction here turned out to be extreme. As Ms. Millay was pro se, her illness and absence had the effect of making the interests of one side of the controversy wholly unrepresented during Surry's entire case-in-chief.
In the circumstances of this case, where the dispute between Surry and YRM has extended over many years, has involved multiple hearings, appeals, and court decisions, has proven intractable, and occasionally even bitter, for the hearing officer to hold three days of due process hearings with only one side present, knowing that Ms. Millay claimed that a serious illness prevented her attendance, borders on an abuse of discretion and runs counter to fundamental concepts of due process.

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