In Letter to Zirkel, 122 LRP 13029, (OSEP Apr. 15, 2022), the Office of Special Education Programs of the U.S. Department of Education offers guidance on a number of issues that may be of importance to impartial hearing officers. Among other topics, the letter addresses sufficiency of due process complaints and dismissals of due process complaints without hearings.

Question One asks “Does a parent’s failure to provide a proposed resolution of the problem in their due process complaint as required by 34 C.F.R. § 300.508(b)(6), restrict the authority of a hearing officer to order prospective relief (such as ordering an individualized education program (IEP) Team meeting to correct identified deficiencies in the child’s IEP) and/or retrospective relief (such as requiring the agency to provide compensatory services or reimburse the parent for expenses they incurred)?”

OSEP’s response is that “A due process complaint must be deemed sufficient unless the party receiving the due process complaint notifies the hearing officer and the other party in writing within 15 days of receiving it, that the receiving party believes the due process complaint does not meet the requirements in 34 C.F.R. § 300.508(b). . . . If a party does not raise a sufficiency claim within 15 days of receiving the due process complaint, the due process complaint is deemed sufficient, and a due process hearing may occur.” The response continues, “Since 34 C.F.R. § 300.508(b)(6) requires the filing party to propose a resolution to the complaint only to the extent known and available to the party at the time the complaint is filed, the failure to include a proposed resolution to the problem would not automatically render a due process complaint insufficient. In addition, consistent with IDEA Section 615(c)(2)(D), the final decision regarding the sufficiency of a due process complaint is left to the discretion of the hearing officer.”

Question Two asks “What is the outer limit for the number of calendar days for an expedited hearing from the date of filing to the date of the hearing officer’s decision?”

The response, perhaps predictably, states that the applicable timelines are measured in school days, as that term is defined in 34 C.F.R. § 300.11(c). That term does not easily translate into calendar days. “School district calendars vary a great deal and are affected by factors such as whether a school: (1) operates summer school programs for all children; (2) recognizes certain days as holidays that require closure of the school for students; (3) conducts staff in-services and professional development conferences that result in closure of the school for students; (4) closes due to inclement weather; or (5) allows use of school building facilities for elections and other community functions that require closure of the school for students. School district calendars vary widely, and there are many variables that may affect whether a day is a ‘school day.’” (footnote omitted).

Question Three asks about dismissals of due process cases, other than on sufficiency determinations, made without a hearing. The letter states: “You state in your correspondence to OSEP that some States, especially those that opt to use State administrative law judges to adjudicate IDEA due process complaints, engage in practices that dismiss a due process complaint and/or issue summary judgment on the matter without holding a hearing. You ask whether such practices (other than when a hearing officer rules that a due process complaint is insufficient) violate the parties’ right to a hearing under IDEA and/or arguably Fourteenth Amendment procedural due process rights.”

After cautioning that the response “is limited to the hearing rights afforded to parties under IDEA. 20 U.S.C. §§ 1415(f)(1)(A), 1415(f)(2), 1415(f)(3)(A)-(D), and 1415(h),” OSEP states that “Among the rights IDEA affords parties to any hearing conducted pursuant to §§ 300.507 through 300.513 or §§ 300.530 through 300.534, or an appeal conducted pursuant to § 300.514, is the right to present evidence and confront, cross-examine, and compel the attendance of witnesses. 34 C.F.R. § 300.512(a)(2).” The letter continues,

[T]he only provision in IDEA or its implementing regulations that contemplates summary dismissal is when the due process complaint is insufficient. To the extent any summary proceedings in a hearing on a due process complaint – other than a sufficiency determination – limit, or conflict with, either party’s rights, including the right to present evidence and confront, cross-examine, and compel the attendance of witnesses, we believe such proceedings can be used only when both parties consent to use the summary process (e.g., cross-motions for summary judgment).

The last part of the letter concerns resolution of state complaints by state educational agencies. The letter says that whether state guidance documents and case law should be taken into consideration in deciding the complaints will depend on the circumstances. State guidance documents may be relevant if intended to address applicable IDEA requirements or state mandates needed to implement a requirement of the IDEA. The IDEA regulations do not have any specific provision on the use of case law in deciding state complaints, but binding court rulings may be relevant, particularly if a judicial order is not yet reflected in the rules and procedures of the state. Finally, OSEP said it would investigate several states’ policies identified by Prof. Zirkel that appear inconsistent with IDEA requirements, specifically those said to “(1) extend the timeline for expedited due process complaints; (2) excuse the respondent from submitting the written response required under 34 C.F.R. § 300.508(f); (3) require the use of the State’s model form to file State complaints and/or due process complaints; (4) permit parties to extend hearing timelines, themselves without the hearing officer’s agreement; and (5) allow districts to withhold reimbursement for past expenses ordered by a hearing officer.”

Of the policy guidance provided in the letter, the interpretation of the rules regarding complaint sufficiency is of key importance to impartial hearing officers, as is the interpretation of the rules about the need for holding a hearing rather than adjudicating the due process complaint through summary proceedings. Although policy letters lack the force of law, they may have considerable persuasive power for due process decision makers and the entities that review their decisions. However such potential influence is probably diminished here since OSEP’s response regarding adjudicating the due process complaint through summary proceedings is inconsistent with a long standing prior OSEP letter (see below) and comments to the most recent IDEA regulations in 2006.

IDEA and its regulations do not provide expressly for any type of motion practice save, arguably, a notice of insufficiency.  Most states, have no established motion practice that applies to IDEA hearings.

IDEA and its implementing regulations provide that among the specific rights available to the parties to a due process hearing is the right to “present evidence, confront, cross examine, and compel the attendance of witnesses.”  34 CFR § 300.509(a)(2).  In this regard, OSEP has noted that it is the responsibility of the hearing officer to accord each party a “meaningful opportunity to exercise these rights during the course of the hearing.”  OSEP also noted that the hearing officer “is expected to ensure that the due process hearing serves as an effective mechanism for resolving disputes between parents” and the school district.  Apart from the hearing rights set forth in the IDEA (and its regulations), “decisions regarding the conduct of Part B due process hearings are left to the discretion of the hearing officer.”  Letter to Anonymous, 23 IDELR 1073 (OSEP 1994).  See also Analysis and Comments to the Regulations, Federal Register, Vol. 71, No. 156, Pages 46699, 46704 – 46706 (August 14, 2006) (affirming that hearing officers have the discretionary authority to handle various prehearing procedural matters as long as they do so consistent with the rights of the parties under the IDEA).

Where there is no right to discovery in IDEA hearings (or the hearing officer has prohibited or granted only limited discovery as a matter of discretion), the IDEA hearing process needs to be considered in how certain motions are handled, particularly those seeking dismissal or summary judgment.  Specifically, it must be remembered that the IDEA hearing process is much different than litigation under court rules.  Most notably, there is generally no discovery to allow the party opposing the motion for summary judgment to learn of alleged facts.  Aside from the information provided pursuant to the five-business day rule (34 CFR § 300.512(a)(3)), a nonmoving party is left to informal discovery, to the extent such is even available, until the time of the hearing.  In short, in the IDEA hearing context, some “discovery” most often takes place during the hearing itself.

To the extent analogies are drawn to the motion practice under state or federal court rules, care must be taken to also apply by analogy the standards relating to those rules.  For example, motions to dismiss, similar to a 12(b)(1) motion for lack of subject matter jurisdiction or a 12(b)(6) motion for failure to state a claim upon which relief can be granted, would generally be met with the court construing the complaint liberally in the petitioner’s favor.  It is important, therefore, that the hearing officer understands the standards applicable to motions that borrow court rules by analogy, either by conducting his or her research or asking counsel to provide authority.

In sum, under the IDEA both the parent and school district have a right to a fair hearing.  Fairness, however, necessitates that the hearing officer determines that the things that are being heard are arguably hearable under the IDEA and that the things not being heard are decided only after the affected party has been granted a meaningful opportunity to argue why it should be heard.