A due process hearing is conducted by a hearing officer. At the hearing, each party has the opportunity to present evidence (through documents and the testimony of witnesses) to support its position. The parties also have the right to cross-examine witnesses and to submit rebuttal evidence.
In addition, the parties are afforded the opportunity to present oral and/or written argument to the hearing officer.
The hearing officer's decision is based upon the evidence submitted by the parties during the hearing on the merits, and any relevant legal principles.
Representation by an Attorney or Advocate
Each party has the right to be represented at a due process hearing by an attorney or advocate. It is not necessary to have an attorney or advocate to proceed to a due process hearing, although many parties find representation helpful. The BSEA maintains a Directory of Legal/Advocacy Services reflecting agencies/individuals that may be able to provide free or low-cost consultation, technical assistance, referral, advocacy or legal representation. This can be accessed on the Forms and Publications page of our website.
Hearing Officers
Due process hearings are conducted by impartial hearing officers employed by the BSEA. The hearing officers do not have personal or professional interests that would conflict with their objectivity in the hearing.
BSEA hearing officers have the power and the duty to:
- Authorize the BSEA to issue subpoenas sua sponte or upon the request of any party to secure the presentation of evidence or testimony;
- Request a statement of the issues and define the issues;
- Rule on any requests or motions that may be made during the course of the due process proceedings;
- After consultation with the parties and consideration of the proposed evidence, place reasonable limits on the presentation of evidence to prevent undue delay, waste of time, or needless presentation of cumulative evidence;
- Assist all those present in making a full statement of the facts in order to bring out all the information necessary to decide the issues involved and to ascertain the rights of the parties;
- Ensure that each party has a full opportunity to present its case orally, or in writing, and to secure witnesses and evidence to establish its claims;
- Regulate the presentation of the evidence and the participation of the parties for the purpose of ensuring an adequate and comprehensible record of the proceedings;
- Examine witnesses and ensure that relevant evidence is secured and introduced;
- Receive, rule on, or exclude evidence;
- Introduce into the record any regulations, statutes, memoranda, or other materials relevant to the issues at the hearing;
- Continue the hearing to a subsequent date to permit either party to produce additional evidence, witnesses, and other information;
- Order additional evaluations at public expense;
- Order written briefs to be submitted by the parties, establish the issues to be addressed by the briefs, and set the deadline for their submission;
- Reconvene the hearing at any time prior to the issuance of a decision for any purpose or pursuant to a post-hearing motion; and
- Censure, reprimand, or otherwise ensure that all participants conduct themselves in an appropriate manner.
Anyone may, upon request, obtain from the BSEA a list of the hearing officers with their qualifications.
Hearing Decisions
The decision of the BSEA hearing officer is a final agency decision and is not subject to reconsideration by the BSEA. The decision may, within 90 days from the date of issuance, be appealed to the Massachusetts Superior Court or the United States District Court.
A party contending that a BSEA decision is not being implemented may file a motion with the BSEA stating that the decision is not being implemented and describing the areas of non-compliance. The hearing officer may convene a hearing at which the scope of the inquiry is limited to facts bearing on the issue of compliance, facts of such a nature as to excuse performance, and facts bearing on a remedy. Upon a finding of non-compliance, the hearing officer may fashion appropriate relief.
Transcripts
Upon written request the BSEA will provide an electronic verbatim record of the proceedings and/or a certified written transcription of the proceedings free of charge. See BSEA Hearing Rules 10 and 15.