Colorado Abandons Two-Tier Special Education Due Process Procedure Effective July 1, 2011

Posted on June 7, 2011

With the passage of Senate Bill 11-061, Colorado will join the majority of other states who have dispensed with a two-tier special education administrative review procedure in favor of a one-tier system. Because the bill takes effect on July 1, 2011, all due process complaints filed after that date will be administered according to the new one-tier procedure.

Since the enactment of the Exceptional Children’s Education Act (ECEA), Colorado has provided for a two-tier administrative review procedure for resolving special education disputes brought pursuant to the Individuals with Disabilities Education Act (IDEA) and the ECEA. The first-tier, or Level I review is initiated by sending a due process complaint to the Colorado Department of Education (CDE). CDE assigns an impartial hearing officer (IHO) from its registry of IHOs on a rotating basis, depending on availability. The IHOs on CDE’s registry are generally private attorneys who register to become hearing officers and are provided training in the IDEA’s dispute resolution procedures by CDE. The IHO sets pre-hearing deadlines, conducts the due process hearing, receives the parties’ evidence on the record, and issues a decision that is final and binding on the parties unless the aggrieved party files an appeal.

The current ECEA provides a Level II administrative review (appeal) of the IHOs decision. CDE contracts with the Colorado Office of Administrative Courts to perform this Level II review. The Level II review is initiated by filing a notice of appeal within 30 days after receipt of the IHO’s decision. An Administrative Law Judge (ALJ) is assigned to hear the appeal. The ALJ’s review of the IHO’s decision is based on a review of the administrative record, which includes a full transcript of the due process hearing, the pleadings and papers filed in the Level I review, briefing by the parties and, frequently, oral argument to the ALJ by the parties or their counsel. In its review, the ALJ is required to examine the transcript and certified record received from the IHO and make an “independent” decision thereupon. Similar to the IHO’s decision, the ALJ’s decision is final and binding on the parties unless the aggrieved party files a civil action with the state or federal court.

Effective July 1st, IHOs will no longer hear and decide due process complaints. According to the regulations drafted by CDE, the due process hearing will be conducted by an ALJ at the Colorado Office of Administrative Courts (OAC). According to the regulations, within two business days following CDE’s receipt of a due process complaint, CDE will notify the OAC in order to have an ALJ assigned to hear and decide the complaint. The timelines set forth in the IDEA for the Resolution Period and the Due Process Hearing remain unchanged. However, the regulations provide that “The ALJ shall not have the authority to extend the 30-day resolution period.” The rules also provide that the ALJ does not have the authority to extend the 45-day due process decision timeline until after the Resolution Period has occurred.

The party aggrieved by the ALJ’s decision has the right to bring a civil action in state or federal court. The civil action must be filed within 90-days from the date of the ALJ’s decision.

While I am generally in favor of the move to the one-tier system, I have some mixed feelings. First, I fear that having the due process hearings conducted by ALJs at the OAC will increase the already litigious nature of due process proceedings and have a chilling effect on the filing of due process complaints by parents. Having the hearing conducted by a judge in a formal courtroom will undoubtedly intimidate even the most ardent of parents. Trying to advocate for your child with a recalcitrant school district is difficult enough. Add to that the inherent anxiety of appearing in a courtroom to plead your case, may be too overwhelming for many. While some IHOs have more formal procedures than even federal court, the Level I review process is typically a less daunting exercise than a court proceeding. On the other hand, I think that the one-tier system will likely be more inexpensive for parents in the long run. In my experience, the Level II review has not been that decisive and is typically a necessary evil to get to filing a civil action in federal court. Indeed, the statistics show that about the IHO’s Level I decision is affirmed by the ALJ about 75% of the time. While statistically there are not many Level II appeals filed each year, and even less civil actions filed, I believe that given the heightened formality (perceived or real) of the ALJ administered due process hearing, I believe that there will be even fewer civil actions filed. There are also a number of unknowns regarding the switch to the one-tier administrative review system (maybe CDE has the answers, but they are unknown to me). Will the due process hearing be required to take place at the offices of the OAC in downtown Denver, or will the ALJ travel to the school district at issue? Will the school district no longer pay for the hearing officer? Who will pay the ALJs for their services? Will the due process hearing be conducted pursuant to the Colorado Administrative Procedures Act (C.R.S. § 24-4-105), or will some other, less formal, procedure apply? Will the hearing procedures be uniform among the ALJs, or will they have individual, eclectic approaches as do the IHOs of today? If you like the existing two-tier system, file your due process complaint as soon as possible. If not, wait until after July 1st and see how the ALJs conduct these hearings.

By Jack Robinson

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