Special Education Tip-of-the-Day: Due Process—Pre-Hearing Conference
by Amanda Glass, Equal Justice Works Fellow and Jessica Jansepar Ross, Attorney
In our last blog post, we discussed the possibility of early resolution of a due process complaint. Today, we will talk about what takes place if a complaint cannot be resolved within the 30-day resolution period—a pre-hearing conference.
When Does a Pre-Hearing Conference Take Place?
If the resolution period ends without a resolution being reached, the administrative law judge (ALJ) will conduct a pre-hearing conference. This conference can take place telephonically or in person. If it takes place in person, it must be at a location that is reasonably convenient for the parents and student.
What is the Purpose of the Pre-Hearing Conference?
The purpose of the pre-hearing conference is to determine if the complaint is a legitimate due process complaint, to ensure that all matters are clearly defined, to establish the proceedings that will be used for the hearing, to determine who will represent and/or advise each party, and to set the time and dates for the hearing.
What Will Happen During a Pre-Hearing Conference?
Each ALJ may handle the pre-hearing conference a little differently, but this is a general overview of topics that are likely to be discussed
Confirming and Clarifying the Issues for Hearing
At the pre-hearing conference, the ALJ will want to go over the issues that will be tried at the hearing. Generally, the only issues that can be tried at a hearing are the issues in the due process complaint (including any issues that were added or changed in an amended due process complaint). The ALJ may ask the party that filed the complaint to clarify the issues during the pre-hearing conference.
Discussing Any Pre-Hearing Procedural Issues
During the pre-hearing conference, the ALJ will ask both parties some procedural questions. For example, the ALJ will want to know if each party has legal representation. The ALJ may also ask if there are other parties that need to be brought into the hearing to address the issues alleged in the complaint—for example, whether another school district or the state education agency (the Arizona Department of Education) should be added as a party. The ALJ will also want to clarify to both parties what the scope of the hearing will be, and what types of relief, such as additional service hours or other compensatory education services, are possible under the law.
The ALJ will also go over the types of issues that he or she has jurisdiction over. ALJ’s only have the authority to make decisions about claims under the Individuals with Disabilities Education Act (IDEA). This means the ALJ can listen to the evidence and make decisions about special education issues like eligibility, services, and placement, but cannot make decisions about claims that arise under other laws. For example, an ALJ cannot rule on a personal injury claim, even if the claim is related to the child’s special education. ALJs do not have jurisdiction over personal injury issues.
Discussing the Length of the Hearing and the Number of Witnesses to be Called
The ALJ will ask each party to estimate how long they think they need the hearing to be. Usually, the ALJ will have an idea based on the complaint of how many days a hearing should take. The length of the hearing will also depend on how many witnesses each party plans to call. During the pre-hearing conference, the ALJ may ask each party to summarize what each of their proposed witnesses will testify about.
Deciding Various Administrative Issues
During the pre-hearing conference, the ALJ will discuss whether the hearing will be open to the public or closed; whether the student will be present; whether there will be a court reporter and how the hearing will be recorded; how the parties will mark their exhibits (each piece of evidence); whether an interpreter is necessary; whether any assistive technology devices are necessary; and whether any participant will require a disability-related accommodation. Parties can bring up other related concerns at this time as well.
Confirming Parent Has Had Opportunity to Inspect Student’s Entire Educational Record
Parents have the right to access their child’s educational record—you can read more about this right in our previous blog post. Specifically, if there is to be a due process hearing, parents are entitled to access their child’s educational record before the hearing takes place. Sometimes a school will provide parents with copies of a child’s records early in the hearing process, but if the child is still attending the same school, there may be new records that have been created since the first time the records were produced. This is a time for parents to ask for any records they believe have they have not been given access to (though we also recommend raising this concern with the school district as soon as possible prior to the hearing).
Setting the Rules for the Exchange of Witness Lists and Exhibits
The parties are required to exchange a list of witnesses and copies of any written exhibits at least five days before the hearing is set to take place. During the pre-hearing conference, the ALJ will provide more details about how this exchange should work. If a party does not list a witness or disclose evidence ahead of time, the ALJ may not allow that witness or evidence to be presented during the hearing.
Determining If There Are Exhibits That Can Be Filed Jointly or Material Facts that the Parties Can Agree To
At the pre-hearing conference, the ALJ will ask what facts the parties are in agreement on. If there are certain things—like the student’s educational background, developmental history, chronology of events, etc.—that both parties can agree on, then those will be noted by the ALJ and need not be argued at the hearing. This will shorten the hearing length and keep it focused on the matters that are disputed.
Discussing Other Logistics
At the pre-hearing conference, the ALJ will go over other logistical matters concerning the due process hearing. The ALJ will talk through the order in which things will proceed at the hearing, including which side will present its evidence first. The ALJ will also inform the parties of the location of the hearing. The hearing should take place at a location that is convenient to the parent and student. Often, that is the Office of Administrative Hearings (OAH), but the hearing may be held in another location so that parents and witnesses are not required to travel out of town.
What Happens After the Pre-Hearing Conference?
After the pre-hearing conference, the ALJ will issue a written summary of the matters discussed and agreed upon during the conference.
After the pre-hearing conference, both parties should continue preparing for the scheduled due process hearing. The parties may continue to negotiate after the pre-hearing conference and may reach an agreement before the hearing day arrives. Should this happen, the parties must contact the ALJ so that the OAH can cancel the hearing. If no agreement is reached, the hearing will proceed as discussed at the pre-hearing conference. In tomorrow’s blog post, we will discuss what to expect at a due process hearing.
Tomorrow’s Tip-of-the-Day: What to Expect at a Due Process Hearing
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