When you file for due process, request that you and the school division, and/or its counsel, be made aware of the hearing officer assigned to the hearing at the same time.
While there is a regulated timeline for the assignment of hearing officers to due process hearings (see below), there aren’t federal statutes or regulations stating that the parent and school division be made aware of the hearing officer assignment at the same time. For example, in Virginia, it is the responsibility of the Local Education Agency (LEA) to schedule the hearing officer, so the LEA will 100% be aware of the hearing officer before the parent. (See below.)
What It Looks Like When the School Division Gets a Jump Start
I’ve filed for due process twice and have watched the timeline following the filings play out two different ways.
4 PM: I filed for due process against Fairfax County Public Schools (FCPS).
4:30 PM Dawn Schaefer, FCPS’ coordinator of its due process and eligibility division, responded to my email and advised:
“I will be in touch via email once I’ve obtained a hearing officer.”
9:45 AM: Lynn Jankowski, paralegal for FCPS’ counsel Blankingship & Keith, emailed subpoenas to hearing officer John Robinson, on behalf of B&K lawyer Patrick Piccolo.
I thought it was SPAM when it first came in. At the time, I was naive and 1) didn’t know the games that are played and 2) wasn’t aware of the name of the law firm. I thought it was sent to me by mistake.
3:17 PM: Dawn emailed me, my husband, and hearing officer John Robinson, and included two attachments.
First attachment: My due process request.
Second attachment: Two letters from Dawn Schaefer. The first letter was addressed to me and my husband, to make us aware that John Robinson would be the hearing officer. The second letter was to John Robinson. It thanked him for being the hearing officer and provided my contact information and B&K’s contact information.
By the time I read Dawn’s email and pulled Lynn’s from the trash, I was almost a full business day behind FCPS’ lawyers on submitting subpoenas.
Even though Dawn advised me she’d be in touch after obtaining the hearing officer, she wasn’t required to make me aware at the same time she made FCPS’ counsel aware.
It was my first indication that the playing field would be tilted toward FCPS.
When I filed for due process for the second time, in 2020, my filing included a request that I be made aware of the hearing officer at the same time as the LEA’s counsel, so we could start submitting subpoenas at the same time.
Federal Regulations and Statutes
(a) General. Whenever a due process complaint is received under §300.507 or §300.532, the parents or the LEA involved in the dispute must have an opportunity for an impartial due process hearing, consistent with the procedures in §§300.507, 300.508, and 300.510.
(b) Agency responsible for conducting the due process hearing. The hearing described in paragraph (a) of this section must be conducted by the SEA or the public agency directly responsible for the education of the child, as determined under State statute, State regulation, or a written policy of the SEA.
(a) Whenever a due process complaint is received under §303.430(d), a due process hearing officer must be appointed to implement the complaint resolution process in this subpart.
The party providing a hearing officer notification under subparagraph (A) shall provide the notification within 15 days of receiving the complaint.
B. The Virginia Department of Education uses the impartial hearing officer system that is administered by the Supreme Court of Virginia.
C. The Virginia Department of Education uses the list of hearing officers maintained by the Office of the Executive Secretary of the Supreme Court of Virginia and its Rules of Administration for the names of individuals to serve as special education hearing officers. In accordance with the Rules of Administration, the Virginia Department of Education provides the Office of the Executive Secretary annually the names of those special education hearing officers who are recertified to serve in this capacity.
H. Assignment of the special education hearing officer. (34 CFR 300.511)
1. Within five business days of receipt of the request for a nonexpedited hearing and three business days of receipt of the request for an expedited hearing:
a. The local educational agency shall contact the Supreme Court of Virginia for the appointment of the special education hearing officer.
b. The local educational agency contacts the special education hearing officer to confirm availability, and upon acceptance, notifies the special education hearing officer in writing, with a copy to the parent(s) and the Virginia Department of Education of the appointment.
VDOE’s Parent’s Guide to Special Education Dispute Resolution includes different wording about the five-day timeline in (H)(1)(a).
While Virginia regulations state that within five business days, the LEA shall contact the Supreme Court of Virginia of the appointment of the special education hearing officer, page 36 of the Guide states:
After a due process hearing request is filed, the school division has five major things it has to do
Quickly: (4) obtain the name of a hearing officer within 5 business days of receipt of the request for a hearing.
In the case of expedited hearings, the school division must obtain the name of a hearing officer within 3 business days.
There is a big difference between contacting within five/three days and obtaining in five/three days.
At the time of this posting, VDOE’s Samantha Hollins had not responded to questions submitted about the inconsistencies between language in state regulations and language in VDOE publications.
In addition, VDOE’s Guide includes bad links. VDOE has been made aware of bad links on its site and in its publications for years. Bad links were noted in JLARC’s report this year. Perhaps JLARC will hold more weight than parents when it comes to VDOE cleaning up its act.