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Two Tier Due Process Systems

Posted Jul 21 2008 10:16am
A recent comment to this blog inspired me to write this post.

In my recent posts on Due Process Hearing Officers, and the defense thereof, I have been referring primarily to the hearing officers in one-tier systems. In those systems, the hearing officer writes the final administrative decision. The decision may be appealed to court, but there is no review by the State Department of Education.

To be clear, there are also some two-tier due process systems. Although the national trend clearly is to one tier systems, a number of states still have two tier systems. In these states either party may ask a State Review Officer to review the decision of the Hearing Officer. The SRO then makes the final agency decision. Some of the states that still use two tier due process systems are: New York, which accounts for more hearings than any other state and has more than 100 first level hearing officers, Oklahoma, which I sometime have the honor of working with, and Nevada, which has one of the fastest growing school districts. Pennsylvania which recently switched from a two tier to a one tier system, and which I also do occasional work for, also accounts for a large number of due process decisions.

The trend nationally in one tier systems is definitely toward more lawyer hearing officers. I believe that fewer first level two tier hearing officers are lawyers although I believe that most state review officers are lawyers. With the increasing complexity of special ed law, I think that a law degree is more important than ever. Moreover the 2004 amendments to IDEA require that all hearing officers must have knowledge of and ability to understand special education law. Section 615 (f)(3)(A)(ii)-(iv). I have known some good non-lawyer hearing officers, but I believe that the job is increasingly becoming more difficult for non-lawyers.
The commenter stated that a minimum of eight years of law practice should be required. I'm not sure that I would go that far, but the comment does point out that for a due process system to do its job correctly, the hearing officers must be competent. They must also be well paid, well supported and well trained. The hearing officers, in both one tier and two tier systems, are vital to the health and success of the due process hearing system which lies at the very heart of the procedural safeguards that the Supreme Court has pointed out are vital to the success of the special education policy established by the Congress. A. See,Schaffer v. Weast546 U.S. 49, 126 S.Ct. 528, 44 IDELR 150 (2005).
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