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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