I oppose, in its entirety, the changes in the due process system as currently stated in the proposed regulations.

In every commentary by the School Systems or the Virginia Department of Education, they have suggested that we ignore the changes because the parents can still file for due process to resolve any issues.  Yet the VDOE, in their proposed changes, fail to comply with the Federal Law, the Federal Implementing Regulations and State Law.  In effect, they have designed a system that reeks of impropriety and conflict of interests, akin to the proverbial “fox guarding the hen house.”

First, VDOE has attempted to write themselves out of any liability.  The proposed definition of due process, 8 VAC 20-81-10 states:

"Due process hearing" means an administrative procedure conducted by an impartial Special Education Hearing Officer to resolve disagreements regarding the identification, evaluation, educational placement and services, and the provision of a free appropriate public education that arise between a parent(s) and a local educational agency. A due process hearing involves the appointment of an impartial Special Education Hearing Officer who conducts the hearing, reviews evidence, and determines what is educationally appropriate for the child with a disability. 34 CFR § 300.507(a)” (emphasis added)

But VDOE can not evade the law so easily.  The Federal Regulations at § 300.507(a)(1) states that “A parent or a public agency may file a due process complaint on any of the matters described in § 300.503(a)(1) and (2) (relating to the identification, evaluation or educational placement of a child with a disability, or the provision of FAPE to the child). (emphasis added). 

Furthermore, the Federal Regulations at § 300.149 SEA responsibility for general

Supervision has consistently be interpreted to mean that the SEA has the overall responsibility and obligation to ensure that each and every child receives a FAPE and if the LEA refuses or can’t provide it then the SEA shall.   And § 300.2 Applicability of this part to State and local agencies defines public agencies and it includes the State Educational Agency (SEA) and, of course, the Local Educational Agency (LEA).

This understanding has been upheld many times by the Courts.  See Brian Cordero  v. Pennsylvania Department of Education, 795 F. Supp. 1352, U.S. District Court, Middle District of Pennsylvania, June 23, 1992,  “The court held that the state's responsibility for providing special education placements under the IDEA "amounts to more than creating and publishing some procedures and then waiting for the phone to ring ." Specifically, the IDEA imposes on states the overarching responsibility to ensure that the rights of children with disabilities are protected, regardless of the actions of local educational agencies.” and Straube,  v. Florida Union Free School District, 801 F. Supp. 1164, U.S. District Court, Southern District of New York, August 25, 1992, “[T]he state's role amounts to more than creating and publishing some procedures and then waiting for the phone to ring . The IDEA imposes on the state an overarching responsibility to ensure that the rights created by the statute are protected, regardless of the actions of local school districts ." Cordero by Bates, 1992 WL 145191 (citing Honig v. Doe, 484 U.S. 305).”  See also Michael 'Glenn' White v Virginia Department of Education,  U.S. District Court, Eastern District of Virginia, 2000.

Consequently, I propose the following change to the definition of "Due process hearing" at 8 VAC 20-81-10:

"Due process hearing" means an administrative procedure conducted by an impartial Special Education Hearing Officer to resolve disagreements regarding the identification, evaluation, educational placement and services, and the provision of a free appropriate public education that arise between a parent(s) and either a local educational agency or the State Educational Agency. A due process hearing involves the appointment of an impartial Special Education Hearing Officer who conducts the hearing, reviews evidence, and determines what is educationally appropriate for the child with a disability. 34 CFR § 300.507(a)” (emphasis added)

Furthermore, because the Board of Education and the Virginia Department of Education are not exempt from compliance with the Administrative Process Act, I oppose the regulations as currently written in regards to hearing officers and the due process system and propose the following changes.

Change 8 VAC 20-81-210 as follows:

A. The Virginia Department of Education, Supreme Court of Virginia shall continue to administer the administers a special education due process hearing system to resolve disputes between parents and local educational agencies regarding the:

. . .

B. In administering the special education due process hearing system, the Virginia Department of Education establishes procedures for:

B. If requested by the Supreme Court of Virginia, and in conformance with the provisions of the Code of Virginia, §§ 2.2-4020 and 2.2-4024 of the Administrative Process Act, the Virginia Department of Education may assist the Supreme Court with the establishment of procedures for:

1. Recruitment, selection, and appointment of Special Education Hearing Officers.

. . .

4. Reviewing and analyzing the decisions of Special Education Hearing Officers, and the requirement for Special Education Hearing Officers to reissue decisions, relative to correct use of citations, readability, and other errors such as incorrect names or conflicting data, but not errors of law which are reserved for appellate review. Deleted in its entirety.

. . .

D. Procedure for requesting a due process hearing.

1. A request for a hearing shall be made in writing to the local educational agency and the Virginia Department of Education. A copy of that request shall be contemporaneously delivered by the requesting party to the other party.

a. If the local educational agency initiates the due process hearing, the local educational agency shall advise the parent(s) and the Virginia Department of Education in writing of this action.

. . .

F. Assignment of the Special Education Hearing Officer.

1. Within one five business days of receipt of the request for a non-expedited hearing: and three business days of receipt of the request for an expedited hearing:

a. The local educational agency shall contact Virginia Department of Education shall contact the Supreme Court of Virginia for the appointment of the Special Education Hearing Officer.

b. The Virginia Department of Education contacts Supreme Court of Virginia shall contact the Special Education Hearing Officer to confirm availability, and upon acceptance, notifies the local educational agency of the appointment shall, in writing, within three business days of receipt of the request for a hearing, jointly notify the parents, the local educational agency, all attorneys of record, and the Virginia Department of Education of the appointment.

c. The local educational agency notifies the Special Education Hearing Officer in writing, with a copy to the parent(s) and the Virginia Department of Education of the appointment.

Sincerely,

Carl T. Simchick