Question/Comment Asker Answer Answerer Peck, Keith Valid concern.

Transcription

1 Attendees Balanay, Denise Cidade, Chad Cookson, Patricia Goldman, Annelise Grossman, Naomi Hamman, Kirstin Jose, Mike King, Tina Lee, Michael Peck, Keith Pennington, Kiele Rocco, Susan Sugita, Erin Tydeman, Christina Waikiki, Verna Young, Jennifer M. Yashiro, Jerrold IDEA Hearing System: Stakeholders Q & A Meeting Attendees via Telephone Grossman, Naomi Matsuura, Dale Waikiki, Verna Guinan, Martha Shikada, Holly SPED Group from Kauai Question/Comment Asker Answer Answerer Peck, Keith Valid concern. Because HOs have a shortened timeline (i.e., 45 calendar days), the turn-around time for the parties to notify the HO of any omissions and/or misstatements in the Prehearing Order (PHO) must be quick. 1 ( ed comment) Pre-Hearing Order (PHO) omissions deadline of 2 days is too short, especially if you receive more than one in a couple of days. Hearings Officers (HOs) knew that I was in trial on the day they sent a lot of prehearing orders to respond to in 2 days. 2 ( ed comment) Objections to the hearings officers being Deputy Attorney Generals. However, each Hearings Officer (HO) has discretion to set a reasonable deadline. If, upon receiving the PHO, a party requires additional time to review the PHO for any omissions and/or misstatements, the party should notify the HO immediately and seek leave for additional time. It is within the discretion of the HO whether to grant the additional time, which will be determined, in part, by the time remaining in the 45-day timeline. Peck, Keith HOs are not deputy attorney generals (DAGs) or employees of the Hawaii Department of Education (HIDOE). IDEA allows HIDOE to contract with non-employees to provide IDEA impartial due process hearings. There is no conflict of interest. HOs are not DAGS and are not representing any party. 3 ( ed comment) Peck, Keith HOs are not DAGS. Individuals with Disabilities Education Improvement Act of 2004 (IDEA) does not grant the parties the right to

2 The DAG hearings officers are also disallowing Briefs. I tender them in every case since it is REQUIRED by law. See highlight below Hearing procedures. (a) As used in through the term party or parties means the following: (1) An SEA that requests a hearing regarding the proposed disapproval of the State's eligibility under this part. (2) The Department official who administers the program of financial assistance under this part. (3) A person, group or agency with an interest in and having relevant information about the case that has applied for and been granted leave to intervene by the Hearing Official or Hearing Panel. (b) Within 15 days after receiving a request for a hearing, the Secretary designates a Hearing Official or Hearing Panel and notifies the parties. (c) The Hearing Official or Hearing Panel may regulate the course of proceedings and the conduct of the parties during the proceedings. The Hearing Official or Hearing Panel takes all steps necessary to conduct a fair and impartial proceeding, to avoid delay, and to maintain order, including the following: (1) The Hearing Official or Hearing Panel may hold conferences or other types of appropriate proceedings to clarify, simplify, or define the issues or to consider other matters that may aid in the disposition of the case. (2) The Hearing Official or Hearing Panel may schedule a prehearing conference with the Hearing Official or Hearing Panel and the parties. (3) Any party may request the Hearing Official or Hearing Panel to schedule a prehearing or other conference. The Hearing Official or Hearing Panel decides whether a conference is necessary and notifies all parties. (4) At a prehearing or other conference, the Hearing Official or Hearing Panel and the parties may consider subjects such as (i) Narrowing and clarifying issues; (ii) Assisting the parties in reaching agreements and stipulations; (iii) Clarifying the positions of the parties; (iv) Determining whether an evidentiary hearing or oral argument should be held; and (v) Setting dates for (A) The exchange of written documents; (B) The receipt of comments from the parties on the need for oral argument or evidentiary hearing; submit post-hearing memoranda. It is within the discretion of the HO whether to allow post-hearing memoranda. 34 CFR (attached to this question) dictates the procedures when a State challenges the U.S. Department of Education s disapproval of the State s eligibility to receive federal grant money pursuant to the IDEA and is not related to IDEA impartial due process hearings. The IDEA due process hearing rights of the parties applicable to IDEA hearings can be found under 34 C.F.R

3 (C) Further proceedings before the Hearing Official or Hearing Panel (including an evidentiary hearing or oral argument, if either is scheduled); (D) Requesting the names of witnesses each party wishes to present at an evidentiary hearing and estimation of time for each presentation; or (E) Completion of the review and the initial decision of the Hearing Official or Hearing Panel. (5) A prehearing or other conference held under paragraph (c)(4) of this section may be conducted by telephone conference call. (6) At a prehearing or other conference, the parties must be prepared to discuss the subjects listed in paragraph (b)(4) of this section. (7) Following a prehearing or other conference the Hearing Official or Hearing Panel may issue a written statement describing the issues raised, the action taken, and the stipulations and agreements reached by the parties. (d) The Hearing Official or Hearing Panel may require parties to state their positions and to provide all or part of the evidence in writing. (e) The Hearing Official or Hearing Panel may require parties to present testimony through affidavits and to conduct crossexamination through interrogatories. (f) The Hearing Official or Hearing Panel may direct the parties to exchange relevant documents or information and lists of witnesses, and to send copies to the Hearing Official or Panel. (g) The Hearing Official or Hearing Panel may receive, rule on, exclude, or limit evidence at any stage of the proceedings. (h) The Hearing Official or Hearing Panel may rule on motions and other issues at any stage of the proceedings. (i) The Hearing Official or Hearing Panel may examine witnesses. (j) The Hearing Official or Hearing Panel may set reasonable time limits for submission of written documents. (k) The Hearing Official or Hearing Panel may refuse to consider documents or other submissions if they are not submitted in a timely manner unless good cause is shown. (l) The Hearing Official or Hearing Panel may interpret applicable statutes and regulations but may not waive them or rule on their validity. (m)(1) The parties must present their positions through briefs and the submission of other documents and may request an oral argument or evidentiary hearing. The Hearing Official or Hearing Panel shall determine whether an oral argument or an evidentiary hearing is needed to clarify the positions of the parties. (2) The Hearing Official or Hearing Panel gives each party an opportunity to be represented by counsel. IDEA Hearing System: Stakeholders Q & A Meeting

4 (n) If the Hearing Official or Hearing Panel determines that an evidentiary hearing would materially assist the resolution of the matter, the Hearing Official or Hearing Panel gives each party, in addition to the opportunity to be represented by counsel (1) An opportunity to present witnesses on the party's behalf; and (2) An opportunity to cross-examine witnesses either orally or with written questions. (o) The Hearing Official or Hearing Panel accepts any evidence that it finds is relevant and material to the proceedings and is not unduly repetitious. (p)(1) The Hearing Official or Hearing Panel (i) Arranges for the preparation of a transcript of each hearing; (ii) Retains the original transcript as part of the record of the hearing; and (iii) Provides one copy of the transcript to each party. (2) Additional copies of the transcript are available on request and with payment of the reproduction fee. (q) Each party must file with the Hearing Official or Hearing Panel all written motions, briefs, and other documents and must at the same time provide a copy to the other parties to the proceedings. (Authority: 20 U.S.C. 1412(d)(2)) 4 ( ed comment) Here is an explanation of 2 of the many things that will cause me to disrupt this new farce of a hearing system. The motion for clarification was denied. I asked what rule was used and was told there are none. This all goes up the chain and my reaction to this is to bring more and more cases. DOE SY Objections to PHO 5 (handwritten question) Can we get phone number, for ODR and Deusdedi Merced (in addition to their which they gave us)? Peck, Keith IDEA does not speak to motions for clarification or reconsideration. IDEA requires that a decision is made and mailed to the parties within 45-calendar days from the end of the resolution period (in non-expedited cases). OSEP has opined on whether motions for clarification and reconsideration are permissible under the IDEA. OSEP has said that once the HO renders his/her decision, the HO cannot revisit his/her decision because the decision is final. A HO may amend his/her decision to correct any typographical errors. However, the date of the initial decision remains the effective date for purposes of appealing the HO s decision. Unknown Contact information for ODR: atg.odr@hawaii.gov

5 Does Deusdedi have experience with IDEA? -(can he explain his work experience) (I m interested because he ll be training the new HO s) 6 (handwritten question) He said something about they don t rep parent agencies they don t rep ; they do rep Can he repeat? Fill in the blanks? (Currently the office is relocating to a permanent site, we will provide this information when it becomes available. The hearings officers are prohibited from having ex parte communications with any party to the actions. Phone calls without the other party involved is inappropriate. )* Mr. Merced has represented both school districts and parents of students with disabilities in IDEA matters in administrative proceedings as well as courts, and has served as an IDEA hearing officer, State review officer, mediator, and facilitator. He is also hired by State education agencies to assist with implementation of the IDEA. Mr. Merced is a partner in the firm, Special Education Solutions, LLC, (SES) which provides balanced, neutral trainings to IDEA hearings officers, and do not take sides. SES s contract with the DOE is limited to IDEA hearings officer training and will not be providing training to the public or the schools/districts. Unknown Special Education Solutions, LLC (SES) will only accept contractual work from State educational agencies. SES will not represent local educational agencies, parents, parent groups or the like in litigation or any other matter. Mr. Merced will serve in the capacity of hearing officer, or State review officer, by designation from the State educational agency. SES will also accept appointment by a court of law to serve as a court monitor. 7 (verbal question) Since you work with SEA, how are you content neutral? Cookson, Patricia SES is contracted by HDOE to provide technical assistance to the hearings officers. SES bases their technical assistance on the CFR/HAR and are not advocates for either party. SES does not influence the HOs decisions. SES will review federal/state requirements, as well as case law with HOs but will not tell HOs how to decide their cases. The trainings are defined by identified needs and SES will provide guidance on standard, legal appropriate practices, as well as best practices.

6 With time, the goal is to build trust in the integrity of the hearing system. 8 (verbal question) Pleadings, weren t being clarified and not enough time, who scheduled those hearings? Parents finding attorneys who are not able to practice within the new timeline. Who initiated change? 9 (verbal question) As a parent with children with disabilities, can t have attorney present. Would you encourage parents to attend pre hearing conferences? 10 (handwritten question) The agreements reached thru the resolution session dropped from about 70% to 40% in one year. Does SPED solutions or ODR provide guidance to district personnel who are conducting reso sessions? Pennington, Kiele Pennington, Kiele Rocco, Susan IDEA requires that the hearing be completed, and the decision rendered, within 45-calendar days (in nonexpedited cases). Elongating the 45-day timeline can be detrimental to students with disabilities or students suspected of having disabilities. The HO does not have the authority to extend the 45-day timeline on his/her own. A party, however, may request that the 45-day timeline be extended, and it is within the discretion of the HO whether to grant the request. In order to grant a request for an extension, the HO must find good cause. Good cause is determined by weighing the factors established in the HAR. Once the HO has scheduled a prehearing conference, if the attorney cannot make the conference, s/he can request to reschedule the conference to another date and/or time. However, because of the 45-day timeline, the HO will seek to reschedule the conference within a reasonable time from the initial date. If the attorney cannot attend the conference within a reasonable time, the attorney can request to extend the 45-day timeline but must be prepared to demonstrate to the HO that good cause exists to extend the 45-day timeline. US DOE requires all states to submit the State Performance Plan/Annual Performance Report (SPP/APR) annually as a condition to receiving federal IDEA funds. Hawaii has been compliant in submitting this report annually. Indicator 15 tracks the efficacy of the resolution sessions that are conducted as a result of a parent filing a due process hearing request. Parents have a right to file a due process hearing request. Settlement agreements are voluntary and parents are not forced into agreeing to settle their disputes through a settlement agreement. They are allowed to go through a

7 hearing. The vast majority of cases are settled (more than 80%) before a hearing is required. The schools and districts are instructed to allow the parent their right to a hearing and only if the parents agree to settle, will the case be dismissed. Hearings officers are not participants in the resolution session and do not act as facilitators or mediators in any due process request to maintain impartiality. Per the US DOE s instructions, the data for Indicator 15 are limited to the period between July 1 and June 30 of any year. In the event, a case is resolved through a settlement agreement after a resolution session in the next school year, it would not be included in the data provided to the US DOE. Mr. Merced disagreed that the resolution session data reported was good. He would prefer if 100% of the cases were resolved at the resolution meeting. If no resolution meeting takes place with 15 calendar days of receipt of the due process complaint notice, a parent can request that the HO commence the 45-day timeline. Mediation is another option to resolve a dispute for a student provided with IDEA services. The DOE has a contract to provide mediation services to any parent and school free of charge. 11 (verbal question) How is timeline running? How does prehearing fit in and what is the timeline? Cookson, Patricia Best practice is to approach scheduling of the hearing by establishing the 45 th day and working backwards from that date in order to fit everything that needs to happen within the 45-day timeline. Best practice is also to hold the prehearing conference within 5-7 calendar days from the end of the resolution period. The HO, however, has discretion to hold the prehearing conference within the 30-day resolution period. It may be necessary, for example, to address a stay-put dispute during the 30-day resolution period. Another example for when the HO may exercise discretion to hold

8 12 (verbal question) Within the 45 days, does the hearing and decision have to be made? 13 (verbal comment) Witnesses not available does not help IDEA Hearing System: Stakeholders Q & A Meeting Cookson, Patricia the prehearing conference during the resolution period is when the parent is appearing pro se (i.e., without any attorney) and an early prehearing conference affords the HO an opportunity to explain the process to the parent. Yes, it s the law. Peck, Keith The Office of Dispute Resolution provides the parties in advance of the prehearing conference with an agenda of the items for discussion. It is important that the attorneys/parties are prepared to discuss those matters fully during the prehearing conference, which may include discussing these matters with the client and/or potential witnesses ahead of the prehearing conference in order to be responsive to questions from the HO. HO will continue to encourage preparedness. 14 (verbal question) Cookson, Yes, until they get their new space.* Sugita, Erin Are hearings held in Kapolei? Patricia *As of March 2018, new hearing rooms on Oahu were available at 707 Richards Street, Suite 402, Honolulu, HI 96813,