Due Process Hearing Policy

I.   Due Process Receipt of a Hearing Request

When the Maine Department of Education (Maine DOE) Due Process Office (DPO) receives a request for a hearing,

the DPO will assign a case manager to the hearing.

 

The case manager will call the opposing party to confirm that the opposing party has received a copy of the hearing request and, in the case of a hearing request filed against a school administrative unit (SAU), request that the SAU fax a copy of the page on which the SAU date-stamped the hearing request. That date will be the date from which all regulatory timelines for the

case will be calculated. If the hearing request was filed by the SAU against a family, the case manager will ask the family on which date they received the request from the SAU. That date will be the date from which all regulatory timelines for the case will be calculated. In the event that the filing party has not delivered a copy of the hearing request to the opposing party, the DPO will notify the filing party of this requirement, and the regulatory timelines will not be in effect until confirmation of receipt by the opposing party.

 

In the case where the Maine DOE learns that a family has delivered a hearing request to an SAU but did not provide a copy to the Maine DOE, the DPO will contact that family to advise them of this requirement. The regulatory timelines will not be in effect until the Maine DOE has received a copy of the hearing request.


II.   Qualifications of a Hearing Officer

The hearing officers with whom the DPO contracts must meet the criteria under the MUSER §XVI.13.C(1)-(2)

Impartial Hearing Officer.

(1) At a minimum, a hearing officer-
(a) Must not be-
(i) An employee of the SEA or the SAU that is involved in the education or care of the child; or
(ii)  A person having a personal or professional interest that conflicts with the person’s objectivity in the hearing;
(b) Must possess knowledge of, and the ability to understand, the provisions of the Act, Federal and State regulations pertaining to the Act, and legal interpretations of the Act by Federal and State courts;
(c) Must possess the knowledge and ability to conduct hearings in accordance with appropriate, standard legal practice; and
(d) Must possess the knowledge and ability to render and write decisions in accordance with appropriate, standard legal practice.

(2) A person who otherwise qualifies to conduct a hearing under paragraph (C)(1) of this section is not an employee of the agency solely because he or she is paid by the agency to serve as a hearing officer.

As a general rule, the Department of Education DPO appoints hearing officers to individual hearings on a rotating basis.

Exceptions to the appointment of hearing officers on a rotating basis are:

1. If the hearing officer is a resident of the school administrative unit against whom or by whom the hearing request is filed, that hearing officer will not be appointed to the hearing;

2. If the hearing officer was appointed to a previous hearing that was withdrawn regarding the child about whom a new hearing request has been received, the hearing officer will be appointed to the new hearing, unless the DPO determines that, based on individual facts and circumstances of the case, such an appointment would be inappropriate;

3. If the hearing officer has notified the DPO of his/her unavailability during the regulatory timeframe in which the pre-hearing and the hearing must be held, the hearing officer will not be appointed to the new hearing;

4. If a court of competent jurisdiction remands, that is, sends back to the DOE for further review and decision, a case on one or more issues on appeal, the issue or issues should be heard by the hearing officer who originally issued the hearing decision that was appealed (unless one of the above exceptions applies);           

and,

5. If the hearing officer also serves as a mediator and presided as a mediator in a DOE mediation that involved the family against whom or by whom the hearing request has been filed, the hearing officer will not be appointed to that hearing.

III.    Bias/Conflict of Interest

Prior to the commencement of the administrative hearing, a party who feels the hearing officer is biased or has a conflict of interest must, as defined in MUSER § XVI.13.C.(1)(a)(ii), write directly to the hearing officer stating the reason(s) for the request for recusal of the hearing officer. This document must be copied to the opposing party. The hearing officer will respond in writing to the party who has raised the concern and will decide whether to recuse, that is, remove, himself or herself as the hearing officer for the hearing or whether to decline the request. Requests for recusal made during the administrative proceeding may be made either in writing as described above or on the record at the hearing with the hearing officer afforded the choice of either responding in writing or on the hearing record.

If the hearing officer agrees to a recusal, the hearing officer will notify the DPO immediately and the DPO will appoint a new hearing officer to the case using the procedure outlined above.

If the hearing officer declines to recuse him or herself, the hearing officer will serve as the hearing officer for the case.

The hearing officer’s decision regarding bias or conflict of interest is final, and the hearing will proceed unless the initiating party withdraws the hearing prior to the pre-hearing conference. (Parties considering withdrawal are reminded of page 2, # 2 in “Exceptions”.)

IV.   Hearing Requests from a Family and an SAU about the Same Child

If a family files a hearing request against an SAU or the SAU files a hearing request against a family, and the opposing party files a hearing request soon thereafter about the same child, the DPO will assign each hearing request a docket number and will consolidate the hearing requests into one hearing with the same hearing officer.
           
V.   Subpoenas
           
In order for the DPO to expeditiously issue subpoenas, the party requesting the subpoena must provide the DPO with the name and mailing address of the person to be subpoenaed.

To have a subpoena issued, the parties must follow MUSER § XVI.7.A-C:

7. Subpoenas
A. Issuance of subpoena.

The Commissioner may issue subpoenas in the name of the Department to require the attendance and testimony of any            witness and the production of any evidence relating to any issue or fact in the due process hearing upon the request of either party to the hearing.

B. Fees, Expenses

Any fees for attendance and travel required by the witnesses shall be the responsibility of the party seeking the subpoena. (Please see 16 M.R.S.A. §251)

Issuance of subpoenas shall conform in all other respects to the requirements of the Maine Administrative Procedures             Act, 5 M.R.S.A. §9060.

C. Petition for Modification of Subpoena

Any witness subpoenaed may petition the hearing officer to vacate or modify the subpoena issued. The hearing officer shall give prompt notice to the party who requested issuance of the subpoena. After such investigation as the hearing officer deems appropriate, the petition may be granted in whole or in part upon a finding that the testimony or the evidence requested does not relate with reasonable directness to any matter in question, or that the subpoena for attendance of a witness or the production of evidence is unreasonable or oppressive or has not been issued a reasonable period in advance of the time when evidence is requested.

VI.   Pre-Hearing Motions

MUSER §XVI.8 states:

Pre-Hearing Motions:

If a party in a hearing requires a response from the hearing officer about an issue in the hearing prior to the hearing or wishes for the hearing officer to dismiss the request for hearing, the party may submit a written motion to the hearing officer, the other party, and their representatives, if applicable. Upon receiving a motion the hearing officer shall set a deadline for the opposing party to respond to the motion.

Motions and requests about the hearing must be in writing and must be sent to the hearing officer. The hearing officer is the only person who has control over the timing of the response to the motion/request and the authority to rule on it.

VII.   Location of the Pre-Hearing and Hearing

The DPO is responsible for identifying and securing a suitable location for the pre-haring and hearing and attempts to hold the pre-hearing and hearing as close to the SAU as possible, unless the parties and the hearing officer make other arrangements. If this occurs, the hearing officer will notify the DPO as soon as possible so that the previous arrangements can be cancelled in a timely manner and an amended docket sheet sent out.

VIII.    Arrangements for the Court Reporter

The DPO is responsible for making the arrangements for a certified court reporter to be present for all scheduled hearing dates. 

If a party wishes to tape record hearing proceedings, the party must follow the Department of Education’s “Policy Regarding Transcripts and Administrative Hearings,” which states about tape recordings of hearings,

Is audio taping of a hearing permitted?

Yes, audio taping of a hearing may be done by a party. Audio taping must not disrupt the hearing proceedings. A party’s audio tape, and any transcript of that audio tape, will not be considered an official version of the proceedings, and the Administrative Hearing Officer is permitted to give them whatever weight they deem appropriate. Any party who desires to tape the hearing process is responsible for providing the taping equipment and material at their own expense.

IX   Appeals of Hearing Decisions

If an appeal of a hearing decision is made by a party, once the DPO receives notice of the appeal, the DPO assembles the hearing record.

The Department of Education record must contain:

Hearing Request
Appointment Letter
Scheduling Letter (for example, a hearing will be held in a DHHS conference room)
“Expedited” versus “Hearing” communication
Docket Sheet
Amended Docket sheets, if applicable
Requests for subpoenas
Subpoenas
Any court reporter correspondence.

The hearing officer’s record must contain:*

Any pre-hearing conference submissions
Pre-hearing conference memo
Motions/oppositions
Rulings
Scheduling orders
Copy of all exhibits (segregate exhibits offered but not admitted)
Transcript ordered by hearing officer
Written closing arguments
Decision

* Documents which are already in the DOE’s record must be segregated from the record.

X.    Remands from Federal District Court

If a matter is remanded by the Federal District Court to DOE, each party is responsible for providing to the hearing officer anything that that party filed with the Court within 15 calendar days of the appointment of the hearing officer by DOE.

Matters that are remanded by the Federal District Court to DOE for hearing will be appointed to the hearing officer who presided over the originally requested hearing that was appealed to the Court.  If the hearing officer is unavailable to preside over the remanded matter, or if another one of the exceptions in the appointment of a hearing officer applies, another hearing officer will be appointed.