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, 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.
Additional Resources
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 conduct a fair hearing; to ensure that the rights of all parties are protected; to define issues; to receive and consider all relevant and reliable evidence; to ensure an orderly presentation of the evidence and issues; to order additional evaluations by the school district or independent educational evaluations at public expense when necessary in order to determine the appropriate special education for the student; to reconvene the hearing at any time prior to the issuance of a decision; to take such other steps as are appropriate to assure the orderly presentation of evidence and protection of the parties' rights at the hearing; to ensure a record is made of the proceedings; and to reach a fair, independent, and impartial decision based on the issues and evidence presented at the hearing and in accordance with applicable law.
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 or the Department of Elementary and Secondary Education. 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 or a certified written transcription of the proceedings free of charge. See BSEA Hearing Rules 10 and 15.