OSE/EIS Will Provide Regular Information About Due Process Hearings

by Ron Greiner

Editors Note: This article originally appeared in the March 2002 issue of Newsline. The Michigan Department of Education (MDE), Office of Special Education and Early Intervention Services (OSE/EIS) offers the first of what will be a regular column with a focus on Dispute Resolution.

Why is a dispute resolution column being added to Newsline?
In the summer of 2000, the U. S. Department of Education, Office of Special Education Programs (OSEP) initiated a Continuous Improvement Monitoring Process (CIMP) in 16 target states, one of which was Michigan. The OSEP's stated purpose was to move away from its previous system and to engage states in an ongoing dialogue oriented to continuous improvement of outcomes for students with disabilities. The OSEP initiated this process by asking each state to conduct a self-assessment.

The MDE, OSE/EIS responded to this challenge by bringing together consumers and providers who represented the tremendous diversity across Michigan. Self-assessment teams were organized around nine topic areas related to Part C and Part B of the Individuals with Disabilities Education Act (IDEA). All relevant data for the self-assessment phase was provided by the OSE/EIS. A 45 member steering committee, composed of people who were part of self-assessment teams, further refined the self-assessment findings. The self-assessment report was submitted to the OSEP in January 2001.

Staff at the OSEP read the self-assessment report and gave the OSE/EIS feedback regarding immediate concerns gleaned from the report. The OSEP staff shared their concerns with the Steering Committee and asked for a plan that proposed immediate action that the OSE/EIS could take to impact these concerns. That plan was submitted to the OSEP in December 2001 and approved by them in January 2002.

Many of the concerns raised through the self-assessment process, which were confirmed by the OSEP, related to due process hearings and complaints. One specific concern was that parents and school districts wanted access to information about decisions that have come out of recent due process hearings and complaint investigations. In the interest of providing this information to consumers and providers, the OSE/EIS contacted the Center for Educational Networking (CEN). CEN agreed to add a new column to each publication of Newsline. The column was devoted to up-to-date information about recent due process hearings and complaint investigations. This is the first of these columns.

The OSE/EIS is providing the information in these columns, with the expectation that each reader will realize that each due process hearing decision and each complaint investigation decision is based solely on the factual circumstances, as presented in that case. Please remember that each hearing decision and each complaint investigation involves a unique, individual student, growing up in his or her family, having a disability (or suspected disability) that, no matter how common, is always specific to him or her. Each student is involved with a specific school district, with its unique teachers, related services persons, administrators, forms, procedures, etc. In short, please make an effort not to generalize this information.

What are the procedures for conducting due process hearings?
Michigan's special education regulations require a two-tier procedure for due process hearings. The first tier involves a local hearing officer (LHO). By regulation, the MDE must maintain a list of these LHOs and provide training for them annually. When a parent or a school district requests a due process hearing, the district must inform the OSE/EIS within one business day of the request for the due process hearing. The parent and school district can have any individual they want serve as the LHO, provided that each party agrees on that individual. If they cannot agree, the district must inform the OSE/EIS within seven calendar days and request that the OSE/EIS appoint a LHO. Using a rotating system, the OSE/EIS selects the next LHO from the list of approved LHOs. The OSE/EIS then contacts the LHO to review availability. If the LHO is available, the OSE/EIS appoints him/her as the LHO and informs the parties of this decision. For the year 2001, there were 19 individuals on the list of LHOs.

After the LHO issues a written decision, the parent or the school district can request the state to appoint a state hearing officer (SHO) to review the decision. Currently there are five SHOs. Each must have experience as a LHO, and participate in training. Upon a request for SHO review, the OSE/EIS uses procedures established by the Department of Management and Budget to contact a SHO, review his/her availability, and appoint him/her to conduct the review. The OSE/EIS then provides the parties with the name of the SHO.

Are hearing officers primarily school district administrators?
The Steering Committee and OSEP were concerned about perception that most LHOs are school district administrators. The OSE/EIS reviewed data from January through December 2001 in order to identify the primary life role/profession of the 19 LHOs. In order of prevalence, there were the following:

• 9 attorneys
• 3 university professors
• 2 attorneys who are also school district administrators
• 1 parent of an individual with a disability
• 1 educational administrator
• 1 parent of an individual with a disability who is also an attorney
• 1 parent of an individual with a disability who is also an educational administrator
• 1 educational administrator who is also a university professor

Combining the various life roles/professions of each of the 19 LHOs, there were:

• 12 individuals with attorney roles
• 5 individuals with school district administrator roles
• 4 individuals with university professor roles
• 3 individuals with roles related to being the parent of an individual with disabilities

During 2001, each LHO had jurisdiction in at least one request for a due process hearing. The perception that all or most LHOs are educational administrators is a misperception; the majority are attorneys.

Do hearing officer decisions predominantly favor school districts?
The Steering Committee and the OSEP were concerned about the perceptions regarding the findings in due process hearings. The OSE/EIS reviewed linkages between each LHO's life role/profession and any decision he/she rendered. From January 1, 2001 through December 31, 2001 there were 142 requests for LHO interventions. In order of prevalence, the dispositions were as follows:

• 82 requests were resolved without a written decision.
• 41 requests were still open on 12/31/01.
• 19 requests resulted in written decisions.

Therefore, most requests for LHO intervention do not result in a written decision; that is, they are resolved in some other fashion.

From January 1, 2001 through December 31, 2001, of the 19 LHO decisions were as follows:

• 10 were for the district.
• 4 were split between the parent and the district.
• 4 decisions resulted in dismissal.
• 1 decision was for the parent.

The 10 decisions for districts were made by LHOs with the following life roles/professions:

• 7 were made by attorneys.
• 1 was made by a parent of a person with a disability.
• 1 was made by a person who was an attorney and also the parent of a person with a disability.
• 1 was made by an attorney who was also an educational administrator.

The four split decisions were made by LHOs with the following life roles/professions:

• 2 were made by university professors.
• 1 was made by an attorney.
• 1 was made by an attorney who was an educational administrator.

The LHO who made the decision in favor of the parent was an attorney.

The perception that school districts often prevail in written decisions is true. However, of those 10 decisions that favored school districts, only one decision was made by a LHO with a school district administrative role. Two of those decisions, in fact, were made by LHOs who were parents of persons with disabilities. One of the four split decisions was made by an educational administrator. Based on anecdotal evidence from school district personnel, unless an essential principle is involved, districts prefer to resolve requests for due process hearings by compromising whenever possible. It is possible that individuals start due process proceedings in order to work out a compromise. This may also explain the relatively high number (82, or 58 percent) of requests for due process hearings that end up being settled.

Who will prepare these articles?
Ron Greiner, who was recently assigned the responsibility of coordinating the complaint investigation processes, is the author of these columns. Ron was the coordinator/planner at Washtenaw Intermediate School District (ISD). Ron was a special education administrator for the Lincoln Consolidated Schools and the Milan Area Schools, a teacher consultant for Washtenaw ISD, a regional planning and compliance consultant with the OSE/EIS, and a special education teacher.For more information, contact:

Ron Greiner
Office of Special Education and Early Intervention Services
P.O. Box 30008
Lansing, MI 48909
(517) 335-0461
(517) 373-7504 fax
GreinerR@michigan.gov

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