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I love my job. Because of it, I frequently get to speak at conferences and do trainings. Special education law is a great field because it is constantly changing. As we have said here before special ed law is a lot closer to metaphysics than it is to contract law.
I really enjoyed a training that I did last week. It was for a state education agency and their administrative law judges,mediators and complaint investigators. I'm doing another ALJ training next week. (In some states, we are called hearing officers. In others we are called ALJs.) Although I am referred to as the "trainer," I always learn something from the participants. The participants often are active during the session- asking questions and offering solutions that work for them. Last week was no exception.
When I work with my fellow hearing officers, I am always impressed by the quality of their work and their dedication to their craft. It is rewarding.
There have been many suggestions that the special education due process hearing system be gutted, or substantially changed. What do you think?
Last week we took a look at a sample of a bunch of recent court decisions that have reviewed the due process hearing system of various states. The trend is clearly an increase in the number of such lawsuits. This week we will examine what makes a good due process hearing system.
As I have mentioned in each post in this series, 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. Although I do not believe that these interests affect my opinions, please keep this disclosure in mind.
Hearing systems vary considerably. Many states have a two tiered system in which the first hearing is before a hearing officer, but before his decision may be appealed to court, the aggrieved party must first appeal to a state review officer. In one-tier states, the hearing officer's decision is the final administrative decision and may be appealed to court. IDEA § 615(g); 34 CFR §§ 300.511(b), 300.514. The trend is clearly toward one-tier systems. See, the recent excellent study commissioned by the Massachusetts SEA.
One of the other main differences among the various state due process hearing systems is whether hearing officers are required to be lawyers. The trend here is clearly toward lawyers as hearing officers. There are still a number of states that hire special ed professors and former district administrators, etc as hearing officers. Many of these non-lawyers are excellent hearing officers. But most states I am familiar with now use only lawyers as hearing officers. Because of the new requirement that hearing officers be familiar with special education laws, regulations, and court decisions, whether or not they are lawyers, the state department of education is required as a part of its general supervisory responsibility to adequately train hearing officers so that they can properly conduct hearings and write good decisions. See Analysis of Comments, 71 Fed. Reg. No. 156 at page 46705 (OSEP 8/14/2006). Given the flurry of lawsuits against state departments of education, as well as the fact that OSEP monitors have lately been very interested in hearing officer training, states should all be in the process of reviewing their hearing officer training programs. Do the hearing officer trainings provide a proper update on the law? Do the trainings give the hearing officers the skills they need to be able to properly run a hearing? Do the trainings enable the hearing officers to write a high quality decision? Are the trainings frequent enough to ensure that the hearing officers meet and continue to meet the qualifications established by IDEA?
What are your thoughts on hearing officer qualifications? _______________________________________________________
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Last week we discussed the new qualifications for special education hearing officers. This week, I'm going to talk about how the new qualifications pertain to the education and training of hearing officers.
As I have mentioned in each post in this series, 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. Although I do not believe that these interests affect my opinions, please keep this disclosure in mind.
The changes in the qualifications for hearing officers are significant. The fact that the Congress changed this section of the law signals that it has at least some concern about the quality of hearing officers.
In the most recent post in this series I described the qualifications for hearing officers added by the 2004 reauthorization of IDEA: 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.
State education agencies who train and hire hearing officers should be mindful of these changes. Those who train hearing officers should be people who have experience in conducting due process hearings and in writing decisions thereafter to be sure that the state's hearing officers are taught how to do so in accordance with standard legal practice. This new practical component is at least as important as an update on the law. New hearing officers should be able to cite prior experience in using these skills. OSEP has noted that pursuant to its general supervisory responsibility, each State Education Agency must ensure that its hearing officers are sufficiently trained to meet the new qualifications enumerated in IDEA. 71 Fed. Register No. 156 at page 46705 (August 14, 2006.)
In addition, I have heard from a number of states that OSEP monitoring visits are now focusing upon hearing officer training. State Education Agencies are being asked to explain and justify their trainings. They are also being asked to produce training agendas and the qualifications of trainers. All states should take a look at how they train their hearing officers and ask whether improvements might be needed.
Next week we will look at some of the many recent cases where state hearing systems have been sued by various stakeholders. We will also examine whether lawyers make better hearing officers.
In your experience, what has been the quality of the due process hearing officers you have encountered?
