Legislative Testimony
When new legislation passes, PSBA is seen as the leader in analyzing it and helping members make sense of it.
Recent PSBA Testimony - Special Education Due Process Hearings and Appeals Process
Sept. 20, 2006Presented to the Pennsylvania House of Representatives Judiciary Committee
by Emily J. Leader, Esq., PSBA Deputy Chief Counsel
INTRODUCTION
The Pennsylvania School Boards Association (PSBA) would like to thank Chairmen O'Brien and Caltagirone for the opportunity to comment on the current procedures for special education due process hearings and the administrative appeals process. PSBA is a membership organization of all public school districts in the Commonwealth. In preparing these comments, we sought the input of attorneys throughout Pennsylvania who practice special education law on behalf of school boards and some of their thoughts are reflected in these comments.
The Individuals with Disabilities Education Act (IDEA) governs special education services and much of the procedure relating to due process hearings. IDEA was reauthorized in 2004 and the implementing regulations were issued August 14, 2006 with an effective date of October 13, 2006. Pennsylvania Department of Education (PDE) regulations also address hearing procedures and provide for an administrative appeal of decisions by hearing officers to Appellate Hearing Officers who comprise an Appellate Panel (Appeals Panel). The Office for Dispute Resolution (ODR) oversees the hearing and appeals process as well as mediation of special education disputes. A Hearing Officer's Manual issued by ODR also sets out procedural requirements related to due process hearings and appeals. With the adoption of the new federal regulations, it is anticipated that the PDE regulations and the Hearing Officer's Manual will be updated.
DUE PROCESS HEARINGS
Pre-hearing Procedure
Prior to the 2004 reauthorization, IDEA hearings in Pennsylvania were typically initiated via use of an ODR form that gave little or no information about the specific concerns that gave rise to the hearing. If a parent requested a hearing, the school district submitted the form with a short description containing its best understanding - often a guess - as to the parents' concerns about a student's Individualized Education Program (IEP) or educational placement. As a result, many cases that could have been resolved went to hearings and school districts frequently did not know parents' specific concerns until the case was being presented before a hearing officer. Frequently, completely new issues were added during the hearing.
IDEA 2004 requires that a specific complaint be filed and permits the other side to request a more specific pleading. It also requires that an answer be provided. A resolution session is built into the pre-hearing procedure, although the parties may agree to waive the session. Hearing officers may only consider those issues set out in the complaint unless the parties consent to have them hear additional issues. These changes should ultimately reduce the number of due process hearings by clarifying concerns as early as possible and will make the hearings much more efficient as the parties will be able to call only those witnesses and use only those exhibits necessary to address the specific issues raised.
Burden of Proof
Shortly after the July 1, 2005 effective date of IDEA 2004, the United States Supreme
Court issued its opinion in Schaffer v. Weast, 126 S. Ct. 528 (2005). The Supreme Court upheld a Fourth Circuit decision placing the burden of proof in due process hearings on the party seeking relief. This changed the practice in the Third Circuit, which held that school districts had the burden of proving an IEP provided a student with a free and appropriate public education even when the parents requested the hearing. Parents have argued that the Supreme Court's upholding of the Fourth Circuit decision, puts them at an unfair disadvantage, but the court disagreed in that IDEA provides them with access to their children's special education records and with publicly funded independent educational evaluations when they disagree with the district's evaluation. In L. E. v. Ramsey Board of Education, 2006 WL 156827 (3rd Cir. 2006), the Third Circuit held that Schaffer v. Weast applies to any case challenging the appropriateness of an IEP.
There is language in Schaffer v. Weast that suggests a state could enact legislation that would change the burden of proof. Proponents for such legislation believe that this case creates an uneven playing field for parents who now must make out a case under the law prior to the school district's having to offer a defense. PSBA strongly disagrees with this viewpoint. To the contrary, the prior practice of requiring the school district to prove what it did was proper created a perception that districts were guilty of wrongdoing and had to prove their innocence. This topsy-turvy way of litigating a case is certainly not common. Plaintiffs generally must present enough evidence to establish a violation of the law, after which the defendants may test this by arguing they failed to make out a claim upon which relief may be granted or by offering evidence that rebuts the plaintiff's case. Further, IDEA is a fee-shifting statute, which means that parents who prevail at a due process hearing or in court are entitled to seek attorneys' fees. This means that legal representation is generally available to parents who could not otherwise afford a lawyer.
Schaffer v. Weast leveled the playing field, requiring plaintiffs to make out their cases before defendants have to defend against them. If a school district initiates the case, the burden will be on the district. If the parents initiate a case, they must make out a case under the law.
Hearing Officers
In Pennsylvania , ODR oversees the hearing process, including the appointment of hearing officers from a panel which, according to their website, currently includes a total of seventeen part-time and full-time hearing officers. Nine of the seventeen hearing officers are attorneys. The others are school psychologists, professors, retired administrators and the like. Whether they are attorneys or not, PSBA has received a number of comments indicating that hearing officers often do not have the skills necessary to conduct a formal administrative hearing or the substantive legal knowledge necessary to issue proper opinions. It has been suggested that decisions often do not reflect the current state of the law and go well beyond what is necessary to provide a student with a free and appropriate education. It appears that the hearing officers generally do not have trial experience or a thorough knowledge of legal procedure. Some do not appear to be sufficiently impartial. Due process hearings can be very emotional as parents, concerned for their child's education and wellbeing and teachers and administrators who also advocate for children find themselves in adversarial positions. Critical to this process is a well-trained, impartial hearing officer. To ensure hearing officers are sufficiently qualified and skilled to take on this work, they need to receive adequate pay, regular training and evaluation. It may be time to re-examine the current practice of using hearing officers who are not attorneys.
PENNSYLVANIA 'S SPECIAL EDUCATION APPEALS PROCESS
Pennsylvania has elected to use a two-tier administrative system in which appeals from a hearing officer's opinion are made to a special education Appeals Panel. PSBA and solicitors representing school districts have serious concerns about how this system works in practice. Appeals Officers are assigned to permanent panels of three with no provision for resolving intra-panel differences through a full panel (en banc) decision. As a result, the decisions do not provide reliable guidance to prospective parties to due process hearings. To obtain a decision which is precedential, parents and school districts must go to court, a cumbersome and expensive prospect. Some argue that this system should be abolished and that Pennsylvania should upgrade its hearing officers and require appeals to go directly from hearing officers to court, a process used in many states.
However, an administrative appeals process has a number of advantages. The appeals are relatively simple to file and are, by far, less costly than a court appeal. They offer an opportunity to quickly address errors of law. If there were either a single, large panel responsible for making all decisions or a means of resolving disputes among the panels by permitting a further appeal to the whole panel, Appeals Panel decisions could help parties resolve disputes long before they get to due process because they would offer reliable guidance on how the law will be applied in Pennsylvania. A body of administrative law could be developed to lessen the burden on courts. Requiring all panelists to sign off on a decision or instituting a procedure for obtaining en banc decisions would reduce the number of cases in which the remedy is greater than that required or even allowed by law and would make the opinions themselves more measured and professional. Presently ten of the seventeen Appeals Officers are attorneys. PSBA suggests that it would be appropriate to require that all Appeals Officers be attorneys due to the nature of appellate practice.
CONCLUSION
PSBA appreciates the opportunity to share these insights and recommendations on the current process for special education due process hearings and the administrative appeals process. If you require further information on this, or any other issue, please contact PSBA's Governmental and Member Relations Department at (717) 506-2450. PSBA stands ready to assist the committee by providing any additional information or recommendations that ensure a level playing field for school districts in special education due process hearings and appeals process.