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21 April 2010

Special Ed Hearing Officer Qualifications – Part V

Filed under: Judge, Lawyer, Special Education, State Education Agency, hearing officer, special education law — Jim Gerl @ 7:00 pm

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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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14 April 2010

Special Ed Hearing Officer Qualifications – Part IV

Filed under: Board of education, Gerl, Special Education, Training, hearing officer, qualifications, special education law — Jim Gerl @ 10:20 am

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Last week we discussed how the new qualifications for special education hearing officers pertain to the education and training of hearing officers. This week I'm going to look at a sample of a bunch of recent court decisions that have looked at the due process hearing system.

Keene v. Zelman 53 IDELR 5 (6th Cir. 7/29/9) (unpublished) Parents brought a class action against Ohio SEA alleging illegal policies including improper HO training. Also alleged was that HOs were told to do nothing for the first 30 days and bill no more than one hour during that time. Sixth Circuit approved settlement that included an agreement to retrain HOs and an award of $81,000 vs SEA; Quatroche v. East Lynne Bd of Educ 604 F.Supp.2d 96, 53 IDELR 96 (D. Conn. 3/31/9) If allegation had been that an SEA system of HO training affected a number of dp hearings, parent would state claim for a systemic violation. Here the allegation was only one dp complaint, therefore no systemic violation; Chavez ex rel Chavez v. Bd of Educ of Tularosa Municip Schs 52 IDELR 229 (D.NM 2/24/9) SEA denied FAPE to student but parents not prevailing party; Emma L v. Eastin 52 IDELR 43 (N.D. Calif 2/24/9) Where LEA did miserable job of providing FAPE, and SEA is ultimately responsible for FAPE, court held SEA to an enhanced role; Delaware Valley Sch Dist v PW by James & Patricia W 52 IDELR 192 (M.D. Penna 5/5/9) Although parents may sue SEA for LEAs failure to provide FAPE, the LEA may not sue the SEA for indemnification and contribution under IDEA; DW v. Delaware Valley Sch Dist 109 LRP 80026 (M.D. Penna 12/29/9) Complaint alleging that SEA failed to properly monitor or supervise the LEA with respect to the provision of FAPE to a student stated a cause of action against the SEA; Stengle v. Office of Dispute Resolution 109 LRP 24455 (M.D. Penna 4/27/9) SEA did not violate First Amendment by cancelling contract of HO who who wrote articles about issues pending before her as HO; CG v. Commonwealth of Penna, Dept of Educ 53 IDELR 150 (M.D. Penna 9/29/9) Dist court certified a class action re the manner that SEA distributes IDEA funds; King v. Pioneer Regional Educ Service Agency 53 IDELR 196 (Georgia Ct App 11/5/9) State appeals court ruled that SEA’s general supervisory responsibilities under IDEA do not include being subject to tort-like damages; Independent Sch Dist No. 12 v Minnesota Dept of Educ 767 N.W.2d 748, 52 IDELR 265 (Minn Ct App 6/23/9)

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12 April 2010

Timelines in Special Ed Hearings

Filed under: Gerl, Special Education, deadline, decision, hearing, hearing officer, regulations, special education law, timelines — Jim Gerl @ 9:30 am

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One question about special ed hearings that I get a lot is: when is the hearing officer decision to be issued? There is much confusion surrounding this, thanks in large part to some very confusing federal regulations. The timelines are not contained in IDEA, the statute. They exist only in the regulations promulgated by the Office of Special Education Programs, a division of the federal Department of Education. As always knowing where the bodies are... er, where to look is the key.

The general rule is that the decision by the hearing officer is due 45 days after the end of the thirty day resolution period. 34 C.F.R. §§ 300.510(b)(2), 300.515. Sounds easy, right? Just count 75 days from the filing of the complaint and you know the deadline. But no, why make it easy?

The federal regulations provide the following three exceptions where the 45 day timeline begins the day after one of three events: 1) the parties agree in writing to waive the resolution period; 2) after beginning mediation or the resolution meeting, the parties agree in writing that they cannot agree; and 3) the parties agree in writing to continue mediating after the 30 day period but later, one party withdraws from the mediation process. 34 C.F.R. § 300.510(c).

The third exception is particularly bizarre. It would seem to give the parties the option of mediating forever without triggering the deadline unless one party withdraws. The hearing officer would have little ability to manage the case under this scenario. All three options wreak havoc upon the calendars of hearing officers, lawyers for both sides and the parties.

The other major point to note is that the deadline for the hearing officer decision can be extended by the hearing officer upon a motion by one of the parties. 34 C.F.R. § 300.515(c). OSEP often seems to forget that this provision exists when it monitors state education agencies. It should be remembered by hearing officers that fairness often requires that a continuance be granted. The spirit of the timelines would militate in favor of short continuances, but surely they are sometimes necessary to ensure that all parties have an adequate opportunity to fairly present their evidence.

Next week we will take a look at how the timelines apply in expedited hearings involving disciplinary changes of placement. Spolier alert: the rules as to timelines are completely different! Welcome to the unsettling area of special education law.

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7 April 2010

Special Education Hearing Officer Qualifications – Part III

Filed under: Special Education, State Education Agency, Training, education, hearing officer, qualifications, special education law — Jim Gerl @ 11:00 am

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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?

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31 March 2010

Special Education Hearing Officer Qualifications – Part II

Filed under: Disability, Gerl, IDEA, Special Education, Training, education, hearing officer, law, qualifications, special education law — Jim Gerl @ 10:30 am

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In the first part of this series last week, I discussed the options that parties have when they have a dispute concerning the educational program, etc for a child with a disability. The options are numerous and sometimes confusing, so I encourage you to read that post before the others in this series. Today, I'm going to discuss the new (since 2005) mandatory qualifications for hearing officers. You can find a searchable version of the he IDEA statute and the federal regs at the U. S Department of Education "Building the Legacy" website, which also has a link on the lefthand side of this blog. In future posts I will explore my ideas regarding the training of special ed hearing officers and maybe their care and feeding. The final post in the series will include some thoughts on qualities that make a good hearing officer. As I said last week, 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, and I love training hearing officers. I have definite opinions here and my business interests could color my thinking. So please bear that disclosure in mind.

Before the 2004 reauthorization changes took effect (on July 1, 2005), the only qualification for a due process hearing officer under the Individuals with Disabilities Education Act was that the hearing officer not be an employee of the State Education Department or the school district. (old) § 615 (f)(3); and that he not have a personal or professional interest that would conflict with objectivity, 34 C.F.R. Section 300.508(a)(2)(old regs). The reauthorization added three more qualifications for due process hearing officers. The following new qualities were required for a special ed 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. Section 615 (f)(3)(A)(ii)-(iv); 34 C.F.R. § 300.511(c).

So what is your opinion, are these qualifications enough to be a good hearing officer? Is more needed? On the other hand, would we be lucky to find a trial court judge on any given day who met these criteria? What do you say?

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24 March 2010

Special Education Hearing Officer Qualifications: Part I

Filed under: Gerl, Special Education, dispute resolution, education, hearing officer, law, special education law — Jim Gerl @ 11:00 am

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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.

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4 January 2010

Ninth Circuit Decision – District Court Standard of Review of Hearing Officer Decisions

Filed under: Gerl, IDEA, Special Education, Standard of review, United States Court of Appeals for the Ninth Circuit, hearing officer, law, special education law — Jim Gerl @ 10:10 am

The Ninth Circuit Court of Appeals recently decided the case of Ashland Sch Dist v. EH (9th Cir. December 9, 2009). The case is interesting for a few reasons. You can read the Ninth Circuit decision here.

Let me state at the outset that I have a bias here. I am a special education due process hearing officer for four states (well, really it's four jurisdictions to be accurate). The key ruling in this case involves the standard of review for hearing officer decisions when they are appealed

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to court. You can see why I take particular notice of these decisions.

The opinion is binding precedent for the western states comprising the Ninth Circuit. Here is a map that shows the federal circuits and which states they cover. Hearing officers and courts in other circuits, however, often rely upon judicial opinions outside their circuit if they find them to be persuasively reasoned.

In the Ashland case, the parents argued that the standard for review of a hearing officer decision should be abuse of discretion. The appellate panel found that the parents misread § 615(i)(2)(C) of the IDEA and the caselaw decided thereunder. The court found that the appropriate standard was de novo review by the district court. The Ninth Circuit did qualify its ruling however, by noting that the reviewing court must give deference to the hearing officer's findings, especially if they are thoughtful and careful, and that the court must refrain from substituting its own notions of sound educational policy. Moreover, the Ninth Circuit stated that it is required that a district court reviewing a hearing officer decision must consider the hearing officer's findings carefully and respond to the hearing officers resolution of each issue before reaching a contrary result.

This decision has significance for hearing officers and those practicing before them. Although the ruling is in favor of the party arguing for a less deferential standard of review, in my opinion, the Ninth Circuit once again affirms the fairly high level of deference which should be accorded to hearing officer decisions. When I read the news reports at first, this case sounded very bad for hearing officers. As always, however, it pays to read the entire decision.

Tell me what you think.

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9 November 2009

The Price of Justice: Backdoor Effects of the Recession on Special Education

Filed under: California, Gerl, Special Education, education, furlough, hearing, hearing officer, law, procedural safeguards, special education law — Jim Gerl @ 11:22 am

Maybe I wasn't looking in the right place. I was expecting that the severe downturn in the economy would cause a movement to permit school districts to argue that expense or cost should be a defense in special education cases. I even ran a poll in this blog to that effect. The result was a resounding no. But as many readers have suggested, perhaps the effects of the recession have been more subtle. Maybe they are silently creeping into the decision making process in ways that are difficult to observe, let alone quantify. Subtlety isn't really my thing, but I think that these effects are likely present.

I have just discovered another insidious effect of the bad economy. It involves a state due process system. I admit that I have a bias here. (By the way check out the new disclosure on the lefthand side of the blog!) As many of you know, I am a hearing officer and I train hearing officers. I don't think this invalidates my opinion, but disclosure is good.

The due process hearing system is extremely important. It is at the heart of the system of procedural safeguards established by IDEA to protect the rights of children with a disability. The importance of procedural safeguards has been recognized by the U. S. Supreme Court in Shaffer v. Weast 546 U.S. 49, 126 S.Ct. 528, 44 IDELR 150 (2005) as the mechanism that levels the playing field in view of the information advantages enjoyed by a school district.

Indeed, there is almost always no other trial in a special education dispute. The decision of a hearing officer is appealable to court (or in some states to a second tier review officer). The doctrine of exhaustion of administrative remedies, however, requires that for almost all special ed disputes, the matter must first be heard by a hearing officer, and that the final administrative decision determines the matter in the absence of an appeal.

As readers of this blog know, we have done many previous posts on the hearing system. (These are available through the search bar on the lefthand side of the blog.) Every state system is different. Two states have a three person panel conduct the hearing. Many states require that hearing officers be lawyers; some do not. Some states contract with hearing officers. Some use the ALJs of the central panel. Some have a special section of the ALJ panel for special education cases. The vast majority of stats provide high quality training for their hearing officers; some states are not so diligent in this regard. (Remember again my bias here.) The 2004 amendments to IDEA require new levels of competence and training for hearing officers. Apparently, Congress was concerned about the due process hearing system.

I just learned of a big economic effect upon the due process hearing system in the state of California. The due process hearings there are heard by Administrative Law Judges on the central panel. They have a good bunch of people. I was one of the trainers at their annual training last March, and I have met some of them at other conferences and meetings. But the California economy is in big trouble. State employees have been required to have the state budget balanced on their backs. This includes the special education ALJs.

Specifically the special education ALJs are furloughed (that's HR talk for laid off) the first three Fridays of the month. That's a 13.9% pay cut. This despite a work load. that remains t

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he same I find this type of red tape bureaucratic nonsense to be offensive. Does the California government think that these changes do not affect the quality of justice? Do they care?

I understand that times are tough, but how can these "furloughs" be justified. The ALJs have to be highly trained in special education law and in the nuts and bolts of running an administrative hearing. It ain't easy; I've been there. Won't these drastic actions affect the quality of the California due process system? If the procedural safeguards like due process hearings are at the heart of the balance between school districts and parents, how can this cheapness serve any important public policy. As they say during the hearing, I OBJECT.

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26 September 2009

Great Hearing Officer Conference

Filed under: Basque people, France, Gerl, Government, NAHO, Spain, Special Education, expedited hearing, hearing officer, law, special education law — Jim Gerl @ 3:38 pm

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OK so I'm still getting the hang of my mobile-posting voice recognition technology.

The last post should read "Great Hearing Officer Conference." Lost in translation is the phrase that comes to mind. I was describing the conference of the National Association of Hearing Officials. I have been lucky enough to have served as a member of the faculty for this conference for the last five years. It is a fantastic group of people. They all do administrative hearings of various kinds. They also have some fun.

This year the conference was in beautiful Boise, Idaho. Great place. I also learned a lot about Basque culture. (I am sometimes amazed by what I do not know about the world and the people who inhabit it!) There was also a feast featuring Paella and Basque dancers. Potatoes are fantastic in Idaho.

Concerning the hearing process, I presented three sessions. There were many other excellent sessions offered including a useful diversity training. Keynotes by Justices of the Idaho and Oregon state supreme courts and an inspired defense of the rule of law by the Dean of the U of Idaho School of Law were each worth the price of admission.

I came away with two new thoughts. First, a good hearing officer must be a Renaissance person. A wide experience and world view coupled with appreciation for music, art, and life are minimum requirements.

Second, I got confirmation of a view I have been developing. A friend who is one of the foremost experts on Administrative law confirmed my newly-formed opinion that the reason that the federal and state Administrative Procedure Acts are vague regarding the hearing process is by design. Some experts believe that the law has not yet caught up to the reality of current day administrative law where the "trial" for many types of disputes takes place in an administrative hearing. Purists would have all "trials" take place before an Article III court (the judicial branch of government). If fact, today many disputes are resolved by administrative hearing officers (who are really part of the executive branch.) I disagree. I believe that the administrative hearing process is left vague in order to permit the administrative hearing officer to fashion procedures that will allow the fair presentation of evidence given the facts and circumstances of a dispute. This individualized justice ensures that the parties receive due process of law for a particular dispute and set of facts. Consistency is less important than fairness.

Any dissenters?

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2 July 2009

New Supreme Court Decision- Part IV (Hearing Officer Authority)

Filed under: Supreme Court, United States Supreme Court, due process, education, hearing officer, law, reimbursement, school special education, special education law, unilateral placement — Jim Gerl @ 11:32 am

Those of you who follow this blog know that I was concerned about the school district's argument that hearing officers lacked authority to grant reimbursement. I had never heard this argument made before. NOTE: I have a bias here, I am a due process hearing officer for a growing number of states and I train hearing officers across the country. A few commentators have dismissed this issue as a "nonstarter," but at least three justices asked questions concerning the argument at the oral argument. Maybe others gave this argument little attention, but believe me, hearing officers were taking it seriously.

As my preliminary analysis noted the supremes specifically noted at page 17 of the slip opinion that both hearing officers and courts have the authority to grant reimbursement for un

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unilateral placements in proper circumstances. The Court explained its reasoning in footnote 11 on page 13 of the majority opinion.

Specifically, the Court ruled that the district's argument concerning hearing authority ignores the Burlington decision. The high court stated that the Burlington decision interpreted IDEA "... to authorize hearing officers as well as courts to award reimbursement notwithstanding ...(Section 615's) silence with regard to haring officers." n. 11, Slip Op at p. 13. The opinion goes on to state that by amending IDEA without altering the text of the section, Congress implicitly adopted the Supreme Court's construction of the statute regarding hearing officer authority to award reimbursement.

Forest Grove Sch Dist v TA 557 U.S. ____, 109 LRP 36046 (6/22/2009) is an important decision for hearing officers to cite in their decisions. It is clear that this decision reiterates the ruling of Burlington that hearing officers ,like courts, have broad equitable discretion to award an appropriate remedy where there has been a violation of IDEA.

here are some additional resources: First, a couple editorials applauding the ruling: St. Louis Dispatch and Boston Globe. The SCOTUS blog resource page concerning this case includes analysis, briefs by the parties, amicus briefs and a transcript of the oral argument at the high court. A law review article written before the decision discusses some policy concerns can be found here. This link has three perspectives on the ruling.

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17 July 2008

Conference Reminder

Filed under: Special Education, conference. Portland, due process, education, hearing officer, law — Shane @ 10:15 am

If you want to learn a lot about special education law, and just plain education law, all in one place in a short time, I recommend some of the high quality conferences that are offered around the country...

This is a reminder that I will be at the 15th Annual Education Law Conference in Portland, Maine July 28 to 31, 2008. The University of Southern Maine plus a number of other cool cosponsors organized this conference. In addition to numerous excellent sessions on education law topics, there are strands on higher education, creative use of technology, law-themed education and a new Hearing Officer Training Academy. I will be the featured presenter for the Hearing Officer Academy, and a number of other distinguished faculty will participate, but I will also attend the whole conference to further advance my understanding of education law.

Further information about the conference may be found at:

http://www.usm.maine.edu/pdc/edlaw/

You can register for the Conference on the link on the left-hand side of this blog or at:

http://www.usm.maine.edu/pdc/edlaw/register.htm

If you are going to be there, please find me and introduce yourself to me. By looking at the photos of me on this blog, you can see that I'm pretty easy to find. I always enjoy meeting people who read this blog and getting their feedback. I hope to see you there!

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