FFY2002 Annual Report: Response to OSEP Letter
BSEA Response Letter to OSEP findings
Stephanie Smith Lee
Office of Special Education Programs
United States Department of Education
400 Maryland Avenue, S.W.
Washington D.C. 20202
October 28, 2004
Dear Ms. Lee:
The following is the report of the Massachusetts Bureau of Special Education Appeals (BSEA) in response to the Office of Special Education Program's (OSEP) finding of noncompliance with due process hearing guidelines as noted in OSEP's letter of October 23, 2003.
The BSEA will issue hearing dates no more than 20 days from the date of receipt of hearing request. The hearing officer will have 25 days after the close of the hearing to issue a decision. (See proposed Rule II)
The proposed Rules provide for hearings to be held on consecutive days. (See proposed Rule II)
Prehearings will generally be held on Mondays, thus allowing for smoother scheduling of hearings. (See proposed Rule V)
The postponement process is tightened up in the proposed rules with greater emphasis upon the assent of the moving party being obtained prior to the granting of a postponement. (See proposed Rule III)
The presumption will be in favor of oral closing arguments so that the hearing record can close as soon as possible after the hearing is completed, thus allowing the hearing officer to write a decision immediately subsequent to the hearing. (See proposed Rule X)
The scheduling changes listed above will significantly impact on the calendars of attorneys and advocates who appear before the BSEA, and therefore will be phased in for a period of six months, subsequent to the formal adoption of the proposed Rules.
We have spent the past year analyzing reasons responsible for late decisions and have discussed multiple options for change with colleagues in different states. We have taken ideas that have been successful from various states and from various stakeholder meetings within Massachusetts. Consequently, by November 5, 2004, the BSEA will be sending out new Hearing Rules for a sixty day public comment period.
We regret that it is too early in the process to provide empirical data but expect to track changes after the adoption of the new Rules.
The BSEA has been involved in pursuing several additional means of achieving compliance, including some purely internal administrative changes impacting hearing officer assignment and consequent timeliness of decisions, which do not necessitate rule changes. The primary reason for these changes is to allow hearing officers to write decisions immediately after the close of a hearing, rather than to allow them to conduct several hearings back to back, resulting in late decisions. Cases will be covered by an initial hearing officer (see proposed Rule II) until a case is ready to go to hearing, i.e., the documents have been received at the BSEA. At that point, if that particular hearing officer is in the process of writing a decision, the hearing will be conducted by another hearing officer who is not currently writing a decision.
It continues to be our intention that these changes be accomplished in an orderly manner, allowing for a smooth transition to these new rules and procedures.
Jackie Belf-Becker, Director
Copy: Marcia Mittnacht