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E.D. Reverses Policy on State Special-Education Hearing Officers

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Washington--In a change in policy, the Education Department has advised state officials that employees of state education agencies, under certain conditions, now may serve as reviewing officers in local disputes over the education of handicapped children.

The interpretation modifies a ruling by the department a year ago that "categorically prohibited" state employees from serving as review officers under the due-process provision of P.L. 94-142, the Education for All Handicapped Children Act.

That earlier ruling, which was never promulgated and therefore not legally binding, was applauded by most advocates for the handicapped, who had argued the practice conflicted with the law's mandate for impartiality in deciding appeals from local decisions.

The department's new interpretation, described in a letter sent last month to all chief state school officers, sets out minimum standards by which the states can demonstrate impartiality in the selection of individuals to review appeals of decisions made at the local level.

The department's new interpretation is not legally binding but, according to the policy document, will be used to assess the state's compliance with the law and to determine eligibility for federal funds.

The department's review of the regulation was initiated following a series of legal challenges to administrative review procedures being used by the states, the document explained. In most of those cases, the courts have ruled that the use of state employees violated the federal statute and that state officials may not overrule the decisions of state-level reviewing officers.

Formal Fairness Standards

Under the new interpretation, state departments of education that use state education employees, chief state school officers, or state-board members as reviewing officers would be required to have formal written procedures that "ensure standards of ... fairness and impartiality" in the selection process.

Those standards specifically prohibit any state education employee serving as a review officer from personal involvement in the identification, evaluation, and placement of a handicapped child at the local level. The standards also prohibit sub-stantial involvement by a state-level review officer in the development of any state or local policy that is being challenged in a due-process hearing.

Furthermore, the hearing officer may not have been employed by any of the parties to the dispute; may not have been a participant in the selection of an administrator of the school district or agency involved in the hearing; and may not have a personal, economic, or professional interest in the outcome of the hearing, according to the Education Department's policy.

States Revised Program Plans

Because of the department's earlier interpretation of the federal law's requirements on due-process procedures, nearly half of the states had to revise their program plans in order to receive federal special-education funds, according to David Rostetter, acting director of the Education Department's division of assistance to the states.

In New York, where the state commissioner of education must by law review all decisions involving educational matters, the 1983 interpretation would have required a revision of the state's statute, he noted.

"One accusation is that we changed because some of the states complained," Mr. Rostetter said. But the department's reconsideration was prompted by the need for a clear policy, he contended.

"We thought further strategy would be to identify standards of impartiality," Mr. Rostetter said. "We expect and, in fact, require the states to administer and enforce the law at arm's length. There are some federal requirements already on the books to monitor complaints and enforce legal obligations, and we expect the states to meet those responsibilities."

"By further defining impartiality," Mr. Rostetter explained, "we allow the states to retain that role."

According to Mr. Rostetter said the standards also will apply to state-level hearing officers who are not direct employees of state departments of education.

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