As we all adjust to life during the COVID-19 pandemic, which has drastically changed the landscape of education, it is necessary to maintain timely access to due process through the Bureau of Special Education Appeals (“BSEA”).

When a dispute regarding special education services arises between a family and their Local Education Agency (school district), either party may exercise their due process right by filing for a hearing at the BSEA. Under typical circumstances, hearings are generally held in person. However, in an effort to adhere to social distancing guidelines, hearings can and should be held via videoconference to allow for timely due process.

BSEA Hearing Officers have an obligation to ensure that fair and orderly hearings occur within the context of federally mandated timelines. 34 C.F.R. § 300.515(c) requires that no more than 45 days after the expiration of the 30-day resolution period, a final hearing decision is reached and mailed to the parties. BSEA Hearing Rule III provides that, at their discretion, Hearing Officers may grant requests for postponement for good cause, but “must give serious consideration to opposition to a request.”

Recently, a school district filed a motion at the BSEA to postpose a hearing, scheduled to begin May 11, 2020. The district argued that a fair hearing could not be conducted virtually. On April 22, 2020, Hearing Officer Reichbach denied the district’s motion to postpone the hearing. While acknowledging that an in-person hearing is preferable, the Hearing Officer ruled that the success of previous telephonic communications, along with a practice videoconference prior to the hearing date to work out any technological glitches, was sufficient to ensure that a fair hearing take place regardless of whether a matter is complicated in nature. After considering the risk of prejudice to each party, the Hearing Officer wrote, “Although not ideal, I believe it will be possible, in the circumstances of this case, for me to ensure that in a virtual hearing, ‘appropriate standards of conduct are observed and that the hearing is conducted in a fair and orderly manner.’”

On the other hand, in what we believe was an exception to the general understanding that video conferences are conducive to fair hearings, in an April 10, 2020 decision, Hearing Officer Reichbach did allow a district’s motion to postpone a hearing. In this extraordinary case, the parties’ relationship had deteriorated so significantly that the Hearing Officer had been unable to maintain order during a prehearing and other conference calls. In this case, the parties were not both represented by attorneys.

Outliers aside, in a time when we all need to be flexible and creative, the BSEA has found that videoconferencing can be used to hold virtual hearings and will meet the criteria for fair, due process hearings. We are thankful for the technology that allows us to move forward with these important matters, and applaud the BSEA for learning and adopting new technologies during this challenging and stressful time.

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