The advisory opinion process is an optional dispute resolution process available to parties who have requested a due process hearing. Each party is allocated one hour to give a brief presentation of its case, after which the hearing officer issues an oral, nonbinding opinion within an hour of the close of the presentations. The parties may agree prior to the commencement of the process, apart from the hearing officer, to make the resulting opinion binding on the parties.
In order to commence the Advisory Opinion Process, a Request for an Advisory Opinion may be submitted either simultaneously with or after a Request for Hearing.
A Request for an Advisory Opinion shall automatically constitute a request for a 30 day postponement of any previously scheduled hearing date.
One or both parties may submit a Request for an Advisory Opinion to Special Education Appeals. However, the Advisory Opinion Process is voluntary, and therefore, consent of both parties is necessary in order to access the process. Special Education Appeals urges both parties to consult with each other and submit the Request for an Advisory Opinion as a joint request, if at all possible. If only one party submits a Request for an Advisory Opinion, then the requesting party must simultaneously provide a copy of the Request to the other party. If the non-requesting party agrees to the Request, said party must submit written assent to participate in the Advisory process to both Special Education Appeals and the requesting party within five calendar days of receipt of the Request.
Special Education Appeals Processing of the Request
Upon receipt of a joint request for an Advisory Opinion, or upon receipt of a non-requesting party's agreement to participate in the process, Special Education Appeals shall simultaneously: (a) assign a Hearing Officer for the Advisory Opinion and schedule a date consistent with the parties' identified date; and (b) schedule a Hearing date 30 days subsequent to the Advisory Opinion date. Special Education Appeals will send a notice to the parties confirming the date, time and location of the Advisory Opinion and the date of the Hearing, as well as a copy of the Advisory Opinion Procedure form. Both parties will be required to sign the Advisory Opinion Procedure form on the day of the Advisory Opinion Process.
Once the Advisory Opinion has been completed, the moving party will be expected to inform the Hearing Officer in writing of the intention to proceed to hearing on the above-noted hearing date or to withdraw the hearing request.
Exchange of Documents and Identification of Witnesses
Each party must exchange copies of documents and the names of no more than two (2) witnesses no later than five (5) business days prior to the date of the Advisory Opinion Process. Only a limited number of essential documents should be submitted. Each party must simultaneously provide copies of the documents and witness list to Special Education Appeals.
The witnesses and the documents should address the student's disability, current educational status/needs and the program/services that would meet the student's educational needs consistent with federal and state law. It is strongly recommended that each party present at least one witness who can provide an expert opinion on the student's educational needs and recommended program. Examples of relevant documents include current IEP, IEP amendment(s), current educational evaluations/assessments, current progress reports, current teacher reports, current independent evaluations, etc.
Advisory Opinion Procedure
The following procedures apply to the conduct of the Advisory Opinion:
- Unless otherwise agreed by the parties and the Hearing Officer, the parent(s) and the school district shall each be allocated a total of one (1) hour to present their respective cases (see "h" below);
- The witnesses' testimony shall not be under oath;
- The proceeding shall not be recorded;
- Information exchanged during the Advisory Opinion Process shall not be used for impeachment of witnesses at any subsequent hearings or proceedings associated with the case. All Hearing Officer Advisory Opinions shall be confidential and shall not be disclosed to the public or at any further hearings or proceedings associated with the case;
- The Hearing Officer shall be allowed to ask questions at any time during the proceeding. Time used by a witness or party to respond to a Hearing Officer question shall not be used to extend the party's allocated presentation time;
- In addition to parents, special education directors, and a designated attorney or advocate, each party shall be limited to three (3) individuals who may attend or participate in the process;
- The party who filed the Request for Hearing shall be designated as the first party;
- Unless other timelines are agreed to by the parties and the Hearing Officer, the presentations shall be conducted as follows:
- The first party shall be initially allocated 45 minutes to present its case;
- The first party shall present no more than two (2) witnesses of its choosing. During the 45 minute time period when the witnesses are making their presentations, neither party shall be allowed to ask questions of the witnesses;
- The second party shall then be allocated 45 minutes to present its case in like manner;
- For the next 15 minutes, the first party may elaborate on any part of its case or ask questions of any witness;
- For the final 15 minutes, the second party may elaborate on any part of its case or ask questions of any witness.
- Unless the Hearing Officer determines otherwise, there shall be no adjournment once the proceeding has commenced;
- The Hearing Officer shall render a brief, oral Advisory Opinion within an hour of the close of the presentations;
- Any party who does not participate in the process in good faith or who otherwise fails to abide by the rules governing this process shall be subject to such sanctions as determined appropriate by the Hearing Officer.
If a party has any questions pertaining to the Advisory Opinion Process, please contact Special Education Appeals at (617) 626-7250 for assistance.
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