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BSEA Hearing Officers Did Not Consistently Document Requests and Orders To Add Days to Hearing Schedules.

Without proper documentation of the extension process, BSEA cannot ensure that extensions are properly authorized and justified.

Table of Contents

Overview

BSEA’s hearing officers did not consistently document requests and orders to grant additional days to hearing schedules. Without proper documentation of the extension process, BSEA cannot ensure that extensions are properly authorized and justified.

From our judgmental sample of 40 cases that started after BSEA had revised its BSEA Hearing Rules for Special Education Appeals (effective March 1, 2019) in response to OSEP’s findings, 2 cases had days added to the hearings without documentation after the hearings were scheduled. In both cases, the final hearing day occurred at least a month after the hearing opened. BSEA’s Postponement Order Form, which is meant to be used for requesting and granting additional days for a hearing, was not used consistently to document some of the additional dates in these 2 cases.

One hearing was originally scheduled for September 18, 19, and 20, 2019. However, the case files indicate that the hearing was actually conducted on six days: September 18 and 20 and October 2, 3, 7, and 18. There is some evidence in the hearing transcript that the parties discussed adding October 3 and 7, and the case file contains the request and grant of an additional day of hearing for October 2, but there is no evidence of a request or grant for the final day of hearing, October 18. There is also no formal request or grant for October 3 or 7 that specifies when the final case decision will be issued.

The second hearing was originally scheduled for November 13, 15, and 18, 2019. However, the case files indicate that the hearing was actually conducted on November 13 and 15, 2019, and January 24 and February 14, 2020. There is no record in the case files of a party’s request to add these two days.

Authoritative Guidance

According to Section 300.515(c) of Title 34 of the Code of Federal Regulations, a hearing officer “may grant specific extensions of time beyond the period set out in paragraphs (a) and (b) of this section [i.e., 45 days after the expiration of the 30-day resolution period] at the request of either party.”

To address the above regulation, Rule III.A.3 of the revised BSEA Hearing Rules for Special Education Appeals states,

A Hearing Officer may grant an extension of the 45-day timeline at the written request of a party. . . . The Hearing Officer will issue a written ruling on the request, documenting the length of the extension or the new date by which the Hearing Officer will mail the decision to the parties and the basis for the ruling.

On March 4, 2019, the BSEA director sent the Postponement Order Form to the hearing officers in an email stating,

Just another reminder that the attached form (or a reasonable facsimile thereof, containing all the information on the form) must be used in all cases where postponements are requested. (It’s ok if you add more info to the form, e.g., due date for exhibits, just don’t omit anything!)

Reasons for Issues

Although the above rule requires that written rulings be issued for extensions of a hearing, it does not provide a process for doing so once a hearing has already begun.

On January 1, 2021, the BSEA Director told us in an email that if an additional hearing day was mentioned in a hearing transcript, that was sufficient documentation. However, in at least these two instances, the date of decision was not in the transcript.

When informed of this finding, the BSEA director stated that more training was needed in this area.

Recommendations

  1. BSEA hearing officers should consistently use the Postponement Order Form for requesting and granting additional hearing days.
  2. BSEA should revise its Hearing Rules for Special Education Appeals to provide a process for requesting and granting additional days for a hearing once the hearing has already begun.
  3. BSEA should provide training to the hearing officers on the process for requesting and granting additional days for a hearing, including the use of the Postponement Order Form.

Auditee’s Response

It is necessary to address two matters with respect to Finding # 5: (1) the substance of the Director’s email, which sets out the basis for BSEA’s position with reference to this finding, was only cursorily cited in the draft report and must be fully considered; and (2) what appears to be an error regarding a regulatory requirement should be clarified.

  1. The audit report reads, in relevant part: “On January 1, 2021, the BSEA Director told us in an email that if an additional hearing day was mentioned in a hearing transcript, that was sufficient documentation. (Emphasis added.)

This statement oversimplifies the substantive content of the January 1, 2021 Director’s email response, which states, in pertinent part:

I am writing in response to your email inquiry of December 23, 2020, regarding documentation of requests to add hearing date(s) in the situation where the originally scheduled dates prove insufficient for completion of the taking of testimony.

The OSEP finding regarding documentation of any request for/allowance of an action that would extend the 45 day timeline is grounded in the notion that such request must be for good cause and not be done . . . by a hearing officer [of the officer’s own accord] motivated by administrative or personal convenience. The necessity of scheduling additional day(s) for hearing, when it becomes clear during the course of a proceeding that the completion of taking of testimony cannot be accomplished in the originally allocated time, would extend the overall timeline for good cause—thus, documentation in the record of such event would be proper.

While we do have a form which can be used to document such scheduling event . . ., given that said event typically transpires during the course of a hearing, the transcript of the proceeding, which in fact is the official record of the hearing, may often be the vehicle used to memorialize the request/granting of same in the record. Pursuant to my conversations with the hearing officers who presided over the cases you cite in your email, this is what in fact transpired in those cases.

Given the substantive explanation set forth in the above email, it is certainly arguable (and consistent with the purpose and intent of the OSEP directive) that the requirement for documentation of a request for/allowance of a specific extension for good cause may be seen as fulfilled when the official transcript of the hearing reflects these elements.

With the foregoing as context, it should be noted that BSEA hearing officers have been made aware on multiple occasions, both verbally and in writing, that, per OSEP, the gold standard for documenting any request that results in an extension should be a written document reflecting the request and a written order reflecting the “good cause” basis for allowance thereof, including the length of the extension (or revised date of decision issuance). As reflected in the January 1, 2021 email set out above, a model form had been prepared subsequent to the OSEP site visit for potential use in the situation where additional day(s) of hearing were needed to complete the taking of testimony.

  1. In addition, the audit report states: “On January 1, 2021, the BSEA Director told us in an email that if an additional hearing day was mentioned in a hearing transcript, that was sufficient documentation. However, in at least these two instances, the date of decision was not in the transcript. (emphasis added)

There is nothing in the Hearing Rules for Special Education Appeals that requires a ruling allowing a postponement to specify the date when the final case decision will be issued. Rather, Rule III A. 3., which addresses the granting of postponements for good cause, requires either that the length of the extension be specified or that the new date by which the Decision will be issued be specified. In the instant situation, once the date certain for the additional day(s) of hearing is specified on the record, the mandate of this Rule has been fulfilled.

The requirement for completion of written forms, memorializing (or re-memorializing what may already appear in the formal record of the proceeding) the scheduling of additional dates for hearing will be reinforced with hearing officers and monitored going forward.

Auditor’s Reply

The postponement order form is intended to be used for all cases to ensure consistency and clarity in hearing proceedings. It requires that the decision due date be documented. Although we agree that BSEA’s Hearing Rules do not address how this stage of the process affects the 45-day timeline, the form is required by BSEA’s defined process and should be added to the Hearing Rules.

We also agree with the plan to reinforce and monitor the scheduling of additional days for hearings by the hearing officers.

Based on its response, DALA is taking measures to address our concerns on this matter.

Date published: April 7, 2021
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