Proposed regulation 8 VAC 20-81-210(R)(3) about implementation of a due process decision states that:

3. If the Special Education Hearing Officer’s decision is appealed in court, implementation of the Special Education Hearing Officer’s order is held in abeyance except in those cases where the Special Education Hearing Officer has agreed with the child’s parent(s) that a change in placement is appropriate in accordance with subsection G. of this section. In those cases, the Special Education Hearing Officer’s order shall be implemented while the case is being appealed.

Subsection G of 210 relates to the timeline of a Hearing Officer's authority and appears to be an typographical error. But for the "subsection G" error, the above language appears to attempt to track Federal Regulation 34 CFR 518(d) which reads:

(d) If the hearing officer in a due process hearing conducted by the SEA or a State review official in an administrative appeal agrees with the child’s parents that a change of placement is appropriate, that placement must be treated as an agreement between the State and the parents for purposes of paragraph (a) of this section.

Of more concern is that proposed regulation 8 VAC 20-81-210(R)(4) about the school district's failure to implement a due process decision explains that:

4. If the Special Education Hearing Officer's decision is not implemented, a complaint may be filed with the Virginia Department of Education for an investigation through the provisions of 8 VAC 20-81-200.

In other words, VDOE, who is ultimately responsible for enforcement of IDEA 2004 and implementation of Hearing Officer Decisions, (see 20 USC 1412(a)(11) and Gadsby by Gadsby v. Grasmick, 109 F.3d 940, (4th Cir 1997)), assumes no responsibility for ensuring that decisions of Hearing Officer's are enforced.

In fact, in 210(J)(6), it appears that they are permitting up to one year for implementation of a due process decision.

Subsections 3 and 4, in 8 VAC 20-81-210(R) should be merged and revised to read:

3. The Special Education Hearing Officer's decision shall be implemented as soon as reasonably possible, but in no case, longer than 30 calendar days from the date the decision was issued. If not implemented within 30 days, the Virginia Department of Education is immediately responsible for implementing the Hearing Officer's decision.

Rationale - Just as IEPs are to be implemented within 30 days, so should the Hearing Officer's decision.

IDEA 2004 provides a 90 day statute of limitations for either party to appeal an adverse due process decision. If a school district does not want to implement an adverse decision and instead intends to appeal, that decision to appeal will be made relatively soon after the decision is rendered, more typically within one to two weeks.

As a part of the appeal, the petitioning party, in this instance the school district, can request an injunction from the Court to postpone implementation of the decision.

In other types of civil litigation where one party appeals an adverse ruling or judgment, that party routinely seeks (and often receives) interim permission from the Court to postpone compliance with the adverse decision.

Pete Wright
www.wrightslaw.com