It’s Toolbox Tuesday!! OSEP Letter re: Expedited Hearings

We like to talk about the Toolbox on Tuesdays around here. The Toolbox is a full day training focusing on good practices when dealing with students with disabilities who present challenging behaviors.  In the Toolbox, we focus on “tools” districts can use to maintain safety while also providing appropriate services for each student.  One of the tools that districts would like not to use is Tool #4—requesting an expedited hearing.  Today we want to alert you to a letter from the Office of Special Education Programs (OSEP) about those hearings.

Parents of students with disabilities can seek a due process hearing for a variety of reasons. Perhaps they disagree with the child’s placement, or the amount of related services that are provided.  But if the challenge has to do with disciplinary action, the hearing is to be “expedited.”  Furthermore, safety concerns may prompt the school district to initiate the hearing process in an effort to get an order temporarily removing a student from a placement that the school deems dangerous.  These hearings, also, are to be “expedited.”

What does “expedited” mean?  The normal timeline for a due process hearing is 45 days, which begins to run after the 30-day “resolution” period.  So if a parent requests a due process hearing today, the school district would be expected to set up a resolution session, and would have 30 days in which to try to resolve the matter. That would take us to October 6th.  The hearing officer then has 45 days from that date to conduct the hearing and issue a decision. If there are no postponements, then, there should be a written decision by November 20th.

However, if the due process hearing is about discipline, or the district’s effort to remove a dangerous student, the timelines are shortened.  Let’s say the parent has challenged the manifestation determination by requesting a due process hearing on today’s date—September 6.  That hearing will be “expedited.”  The hearing officer would have to conduct the hearing within 20 school days. That would take us to October 4.  And a decision would be due within the next ten school days—by October 18th.  Notice—that’s a bit more than a month faster than the deadline in the non-disciplinary context.  The school district would be responsible for cramming a “resolution session” into that timeframe as well. The resolution session must be concluded within a week of the date of the complaint.  In this example, that would be September 13th.

When a district initiates the hearing process in an effort to remove a student who is deemed dangerous, the hearing is likewise “expedited.” The only difference is that a resolution session is not required when the district requests the hearing.  Tool #4 in the Toolbox refers to those instances  where the district initiates the hearing process.

The OSEP letter addresses the authority of the hearing officer to extend these tight timelines. Can the hearing officer do that? OSEP says no: “There is no provision in the Part B regulations that would give a hearing officer conducting an expedited due process hearing the authority to extend the timeline for issuing this determination at the request of a party to the expedited due process hearing.”

The OSEP letter is Letter to Snyder, issued December 13, 2015. We found it at 67 IDELR 96.



Tomorrow: Are you ready for the changes to the FLSA?