Coronavirus and Schools: Due Process Will Continue—As If Anyone Thought Otherwise
CORONAVIRUS UPDATE
Attached is a statement from the Office for Dispute Resolution concerning the scheduling of due process during the current COVID-19 closure.
As we all know or should know, unless and until the federal government removes the Sword of Damocles from its precarious position over our heads—unless, in other words, the feds grant some IDEA mandate relief during the COVID-19 crisis—neither the commonwealth nor ODR will be able to do so either. The prospects for grant relief from USDE lie somewhere between slim and none, although this is one prediction I would love to have proven wrong.
In this case, the issue is the 45-day timeline for convening due process hearings and whether schools will be required to proceed with hearings despite the lack of any physical space in which to hold them and the absence of witnesses to testify in support of the LEA’s position. The answer ODR provides is that hearings must move forward unless a party asks for a continuance (in ODR language, an “extension of the decision due date”) and the hearing officer grants that request. Typically, hearing officers are unwilling to grant continuances without the agreement of both parties. We can only hope, however, that they will be more flexible under the current circumstances. Many parent attorneys can be expected to press what they will see as an advantage: hustling LEAs into hearings for which they are not ready in the hope of obtaining settlements that yield more compensation (including more attorney’s fees) than they might otherwise have obtained.
We will have to consider the use of virtual hearings, and we might have to offer extra-duty pay to district staff whose testimony will be necessary to make the district’s case.