Analysis
of Comments, Discussions and Changes from Attachment
1
Comment: The Department received several comments requesting amendments to the regulation on hearing officers in two main aspects -- qualifications and public notice of such qualifications. In the first area, commenters stated that persons who are employees of any LEA, persons who were employees of an SEA or LEA and were involved in the care or education of any child in the past 5 years, and attorneys who represent primarily the school district or parents cannot be hearing officers. In the second area, commenters requested that hearing officers be required to take training and competency examinations designed by this Department and supplemented with State-specific elements. Several commenters also want SEAs to publish the criteria they use to choose hearing officers and that the list of all the hearing officers and their credentials be provided to parents requesting a due process hearing. Commenters also suggested that the regulation require that if a sublist of hearing officers is generated for a particular hearing, the parents or their representative be present at the meetings where the sublist is selected. Further, commenters asked that the statement of the qualifications of hearing officers be updated annually and the impartiality of a hearing officer be determined by an objective standard, such as a State's Code of Judicial Conduct.
Discussion: The regulation, in conjunction with State ethics requirements for attorneys and judges, are sufficient to address the concerns raised by commenters with regard to potential conflicts. In States where there are no formal ethical standards for administrative hearing officers, the issue should be addressed within the State. A prior employee of an LEA or SEA should not be barred from serving as a hearing officer where there is no personal or professional interest that would conflict with his or her objectivity in the hearing. Hearing officers, like judges, are capable of making independent determinations of potential conflicts of interest, including a determination of whether he or she has knowledge or information about a particular child derived from outside the hearing process which would impact upon his or her impartiality.
Although numerous commenters asked for national standards, training, and examinations for impartial hearing officers, decisions about training and hearing officer selection, including the use of sublists, should be left to States. Since hearing officers' decisions are subject to judicial review, there is a strong incentive for States to choose qualified hearing officers, conduct appropriate training and establish standards of expertise. Hearing decisions that are not soundly decided will lead to further litigation, be more likely to be reversed and create higher costs. In addition, reviewing courts are less likely to give judicial deference to a hearing officer where his or her qualifications show no expertise in the area of special education.
Changes: None.
