Is your hearing officer competent?

When a parent disputes a decision made by a school district regarding the special education and/or services of their child, one option is to file a “Due Process Complaint”.  [See Procedural Safeguards, 20 USC 1415(b)(6) and (c)(2).]  When a complaint is filed, the state’s Department of Education assigns the case to an “Independent Hearing Officer”.  20 USC 1415(f)(1)(A).

States differ on who fills the role of Independent Hearing Officer (“IHO”).  In a few states (Pennsylvania, for  example), the DOE appoints dedicated hearing officers to special education matters.  These people tend to be experienced practitioners in special education law, whether lawyers or school psychologists or similar professions.  In several states (New Jersey, Arizona, Wisconsin, for example), the DOE relegates the cases to the state’s version of the Office of Administrative Law.  From there, Administrative Law Judges (“ALJs”) are appointed as the hearing officers of special education cases.

While true IHOs handle only special ed cases, ALJs handle numerous different types of administrative law cases.  The types of cases handled by ALJs include civil service appeals, some workers compensation cases, denials of benefits (such as social security, welfare, disability, etc.), alleged violations of environmental laws, and many others.  In other words, the scope is very wide and ALJs cannot possibly be intimately knowledgeable about the laws in all of those areas.  (Think of it this way, if you have a problem with your knee, do you go to a heart surgeon? No, you go to an orthopedic surgeon.)

The main special education law, the Individuals with Disabilities Education Act (“IDEA”) requires that IHOs meet certain requirements.  “A hearing officer conducting a [Due Process] hearing . . . shall, at a minimum . . . (ii) possess knowledge of, and the ability to understand, the provisions of this chapter, Federal and State regulations pertaining to this chapter, and legal interpretations of this chapter by Federal and State courts; . . . and (iv) possess the knowledge and ability to render and write decisions in accordance with appropriate, standard legal practice.” 20 USC Sec. 1415(f)(3)(A); 34 CFR Sec. 300.511(c).

What all that legal mumbo-jumbo means is that whomever is assigned to hear special education cases should be competent in special education law (IDEA, etc.) as well as in making well-reasoned written decisions.  Many ALJs do not have the required knowledge or experience (or time) to handle special education cases.  In my opinion, the system is broken and the blame lies with the state DOEs.

I have suggestions on how to fix this, but won’t discuss them on this blog (for now, but perhaps in the future).  But one thing you should do as a parent is consult with a special education attorney to determine if you will get a competent hearing officer to hear your dispute.

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