State Due Process Hearing Systems Under the IDEA: An Update

Abstract

As part of its structure of cooperative federalism, the Individuals With Disabilities Education Act delegates to the states implementation, within broad specifications, of administrative adjudication systems. In light of the centrality of these systems of dispute resolution and the limited research to date, policy makers and practitioners need more current information about the variations in the state hearing and review officer systems nationwide. Based on a survey of state special education directors, this article provides an updated snapshot of due process systems in the 50 states and the District of Columbia. Key findings include the following: (a) the increased predominance of one-tier, rather than two-tier, systems, (b) a similar continuation of the gradual shift toward full-time hearing officers who are attorneys, (c) a corresponding cumulative trend toward administrative law judge agencies, and (d) common problems concerning the length of hearings, the recruitment and selection of hearing officers, and their professional development, with the attendant responses in progress focused on additional training and revised procedures. Overall, in addition to the limitations of a relatively short and structured survey, the key contextual considerations included (a) the predominance of six states that account for the vast majority of the adjudicated hearings, (b) the wide variety among the remaining states, and (c) the interplay with the other indicators of dispute resolution activity, including filings, resolution sessions, and mediation.

Keywords

IDEA due process systems impartial hearing officers

The Individuals With Disabilities Education Act (IDEA, 2014) provides parents and school districts with the right to a due process hearing on any matter related to the identification, evaluation, provision of a free and appropriate public education (FAPE), and educational placement of a child with a disability (§1415[b][6]). The IDEA also provides that each state education agency (SEA) is directly responsible for establishing a one-tier or, if opting for review officer level, two-tier system of administrative adjudication (§§1412[a] and §1415[f]-[g]). In the most recent year for which data are available, which is 2015–2016, parties filed more than 19,000 due process hearing requests, resulting in almost 2,000 fully adjudicated hearings (Center for Appropriate Dispute Resolution [CADRE], 2018). The level of adjudicative activity and the nature of the hearing systems have varied among the states over the 40 years since the passage of the original legislation.

Although the IDEA regulations (2016) add to the basic framework for these systems, the regulatory focus is on the procedures before, during, and after the hearing, including required timelines (§§ 300.506–300.516). Thus, states have rather wide latitude within this framework. In addition to the aforementioned choice between a one-tier and a two-tier system (§ 300.514[b]), the regulations only specify minimum qualifications for the impartiality and competency (§ 300.511[c]) of hearing officers, leaving decisions as to not only the number but also the nature of the hearing officers. For example, state law or policy addresses whether the impartial hearing officers (IHOs) have part-time or full-time status, legal or educational training, and a host organization such as a separate state office of administrative law judges (ALJs).

Previous research has addressed various aspects of the IDEA hearing process, including the number of requested and adjudicated hearings. Various analyses focused on early contours (e.g., Budoff, Orenstein, & Abramson, 1981), party perceptions (e.g., Goldberg & Kuriloff, 1991), outcomes (e.g., Kirst & Bertken, 1983), alternatives (e.g., Salend & Zirkel, 1984), and IHOs (e.g., Turnbull, Strickland, & Turnbull, 1981). More recent analyses were limited to specific issues separable from the IDEA hearing systems, such as hearing issues and outcomes (Mueller & Carranza, 2011; Zirkel & Skidmore, 2014), IHO impartiality (Maher & Zirkel, 2007), IHO evidentiary considerations (e.g., Skidmore & Zirkel, 2015; Zirkel, 2015), and IHO remedial authority (Zirkel, 2018a).

Yet, the only comprehensive snapshot of the state systems for IDEA hearings was almost a decade ago (Zirkel & Scala, 2010). Given the centrality of this administrative mechanism for the adjudicatory avenue of dispute resolution under the IDEA, as well as continued concern about the investment required to maintain the due process hearing system (e.g., Zirkel, 1994, 2003), both policy makers and practitioners need a current, comparative picture.

The questions that this article addresses start with the same focal features of state systems that the Zirkel and Scala targeted: (a) the number of tiers, (b) IHO employment status, (c) IHO organizational host, (d) IHO professional background, and (e) IHO assignment method. In addition, given the investment required to maintain the due process hearing system (e.g., Zirkel, 1994, 2003), the increased complexity of due process hearings (e.g., Zirkel, Karanxha, & D’Angelo, 2007), and the increased external scrutiny of administrative adjudicators (e.g., Mayes, 2012), this updated survey added items concerning perceived problems and present or planned improvements. The purpose is to not only provide an updated profile, but also stimulate more intensive research, which together can contribute to customized cross-fertilization for effective and efficient state systems per the IDEA model of “cooperative federalism” (Schaffer v. Weast, 2005, p. 52).

Prior Research

Number of Hearings Nationwide

Although earlier analyses revealed an upward trajectory in the level of hearing activity (e.g., Ahearn, 2002; Zirkel & Gischlar, 2008), the number of filings and hearings moderated in more recent years (e.g., Zirkel, 2014a). According to the most recent data (CADRE, 2018), the number of filings in 2015–2016 was approximately the same as in 2006–2007, but the number of fully adjudicated hearings was less than half that for 2006–2007. The change in the ratio of filings to hearings is likely attributable in part to the IDEA 2004 amendments’ requirement for resolution sessions and the increased levels of mediation activity from 2006–2007 to 2015–2016 (Mueller, 2014; Zirkel, 2014a).

Moreover, a continuing line of research has consistently shown that a relatively small number of states account for the vast majority of the hearings (e.g., Katsiyannis & Klare, 1991; Zirkel, 2014b; Zirkel & Gischlar, 2008). According to the most recent analysis (CADRE, 2017), which is for 5 years from 2011–2012 to 2015–2016, the following six jurisdictions, excluding Puerto Rico as an outlier (Zirkel, 2014a), accounted for approximately 90% of the hearings: California, the District of Columbia, Massachusetts, New Jersey, New York, and Pennsylvania. Given its historically high activity for due process hearings and generally integral treatment in the literature, the District of Columbia will be included herein under the generic rubric of “states.”

Number of Tiers

In an early snapshot, Katsiyannis and Klare (1991) found that 25 states used a one-tier system and the remaining 26 states opted for two tiers. Supporting their cautious prediction that the trend would be in the direction of the one-tier option, a decade later, the respective numbers had changed to 34 one-tier jurisdictions and 17 two-tier jurisdictions (Ahearn, 2002). In Zirkel and Scala’s (2010) aforementioned survey, the balance shifted further to 41 one-tier states and nine two-tier states, including one of the most active jurisdictions, New York.

IHO Employment Status and Organizational Home

In the only previously published analysis addressing this issue, Zirkel and Scala (2010) found that 33 states, including the District of Columbia and New York, employed part-time IHOs as independent contractors. The SEA directly administered most of these part-time IHO systems. The major exceptions, other than the two-tier states, which allocated this responsibility at least partly to the local education agency, were Oklahoma and Virginia, which allocated this responsibility to a state university and the state supreme court, respectively.

Conversely, Zirkel and Scala (2010) found that the other 18 states, including the remaining four of the aforementioned high-activity states, opted for full-time IHOs. For the full-time group, Zirkel and Scala established that the number of states that used ALJs from a central panel in a separate state office of administrative law had increased from six to 12 (Katsiyannis & Klare, 1991) almost two decades earlier. The notable exceptions were Massachusetts and Pennsylvania, which respectively, opted for a semiautonomous SEA bureau and an entirely separate office of dispute resolution.

Background of IHOs

In an early survey, Smith (1981) found that 45% of the hearing officers were lawyers, 29% were university faculty members, and 16% were present or retired school district administrators or supervisors. Subsequently, Katsiyannis and Klare (1991) reported that 49 states included lawyers in their contingents of IHOs, with 18 states using them exclusively, and with university faculty and retired administrators constituting most of the remaining minority of IHOs. Structuring their survey to account for the mix and overlap of education and experience within states, Zirkel and Scala (2010) determined that in 45 states, including the aforementioned high-activity group, the predominant proportion of the IHOs had a major background in law, with the remaining six states reporting that the predominant proportion of their IHOs had a major background in special education.

Assignment Method for IHOs

Serving as the only previous determination of the assignment approach, Zirkel and Scala (2010) determined that in most states, including five of the six most active ones, the basis was either a direct sequence (n = 33) or random (n = 10) method. In five of the remaining states, including New Jersey, the method was ad hoc (n = 5), including Montana’s hybrid of providing party ranking as part of the ad hoc decision. Finally, Delaware provided for more direct party participation via each side’s direct selection for a one member of the tripartite panel. A few other states, such as Alaska and Kansas, did so less directly via the right to peremptory disqualification.

Method

The survey instrument was a refinement of the Zirkel and Scala’s (2010) questionnaire based on the authors’ revisions for user-friendliness and pilot testing in December 2017 in four states: Arkansas, Indiana, Kansas and Pennsylvania, with a request for participant feedback. The primary final revisions, other than formatting for Internet-based administration, were as follows: (a) providing percentage range (e.g., 51%–75% and 76%–99%) rather than single percentages (e.g., 50% and 75%) for the intermediate multiple-choice options for the items concerning IHO background and (b) restructuring the open-ended item for “areas of improvement” into a multiple choice format for “problematic aspects” and corresponding “actions currently in progress,” separately. The resulting survey contained 10 multiple-choice items using Google forms, including the opportunity to provide written comments to clarify the selected responses.

The data collection commenced in January 2018 via emailing to the state directors of special education, with a request to complete the survey personally or via a designee who is responsible for and knowledgeable about the state’s system, which is the method employed by Zirkel and Scala (2010). The request explained the purpose of the survey, without providing any external incentive for participation or any implicit or explicit promise for anonymity. Statistical software was not needed for data analysis due to the straightforward nature of this survey and the features available within Google forms.

After repeated follow-up emails and phone calls, the authors obtained a 100% response rate by the end of March 2018. The authors followed up by individually contacting respondents from the relatively few states for which the initial answers were incomplete or subject to question, resulting in their verification or correction. Finally, respondents received a draft of the manuscript, including tables, for review and feedback.

Major Findings

Number of Tiers

As of March 31, 2018, all of the states used a one-tier system of IDEA administrative adjudication except the following seven states: Kansas, Kentucky, Nevada, New York, North Carolina, Ohio, and South Carolina. All of the six highest activity systems are in the one-tier group except New York.

IHO Employment Status and Organizational Home

For employment status, the distribution was part time = 31, full time = 19, and hybrid = 1. The hybrid system was Texas, which reported that some of the IHOs are independent contractors and others, as a change from the past, are full-time ALJs who are part of a central panel in a state office of administrative hearings.

The “home” for the IHOs, whether interpreted as part- or full time, is a central panel of ALJs in a separate state agency in 20 states. For the six highest activity states, with the exception of the SEA-coordinated and local-level implementation, the host organization varied: in California and New Jersey, a central panel of ALJs; in the District of Columbia and Pennsylvania, an IDEA-specific office for dispute resolution; and in Massachusetts, based on a state law that went into effect on July 1, 2010, a specialized group of ALJs who constitute a separate subdivision of a state office of administrative hearings. For the remaining states, which all have part-time IHOs, the host organization remains unchanged: The SEA, with the partial exceptions of local education agency participation in two-tier states, the university contract in Oklahoma, and the state supreme court administration in Virginia.

Background of IHOs

Tables 1 and 2 display the distribution of states in terms of legal and special education background, respectively. More specifically, Table 1 shows that all of the IHOs are attorneys in 42 of the states and that attorneys constitute the majority of the IHOs in the remaining states with the limited exception of Delaware, which has one on each tripartite panel with the neutral member being an attorney. The majority of the six most active states are in the 100% category, with the limited exceptions being New York, where more than three quarters of its part-time hearing officers are attorneys, and to an even lesser extent Pennsylvania, where one of the full-time hearing officers is a nonattorney on a “grandfathered” basis.

Table 1.

Percentage-Range Distribution of IHOs Who Are Attorneys for Each State System.

Range (number)	State^a
100% (n = 42)	AL, AK, AZ, CA, CO, CT, DC, FL, GA, HI, ID, IL, IA, KS, KY, LA, ME, MD, MA, MI, MN, MO, MT, NE, NV, NH, NJ, NC, ND, OH, OR, RI, SD, TN, TX, UT, VT, VA, WA, WV, WI, WY
76%–99% (n = 5)	MS, NM, NY, PA, SC
51%–75% (n = 3)	AR, IN, OK
26%–50% (n = 1)	DE^b
0% (n = 0)

Note. IHO = impartial hearing officer.

The six most active states for adjudicated hearings are designated by italicized text. ^bDelaware has a tripartite panel in which the neutral member is an attorney.

Table 2.

Percentage-Range Distribution of IHOs Who Have a Major Background in Special Education for Each State System.^a.

Range (number)	State^b
100% (n = 0)
76%–99% (n = 0)
51%–75% (n = 1)	IL
26%–50% (n = 9)	AR, DE^c, IN, MN, MS, NE, PA, TX, VT
1%–25% (n = 20)	AL, AK, CT, FL, KS, ME, MD, MI, MO, NH, NJ, NY, NC, ND, OH, RI, SC, TN, UT, VA
0% (n = 21)	AZ, CA, CO, DC, GA, HI, ID, IA, KY, LA, MA, MT, NV, NM, OK, OR, SD, WA, WV, WI, WY

Note. IHO = impartial hearing officer.

This survey item specified a “major background (e.g., a degree and/or professional experience) directly in the field of special education.”

The six most active states for adjudicated hearings are designated by italicized text. ^cDelaware has a tripartite panel in which one member is a special educator.

For the other relevant field, Table 2 reveals that in all states except Illinois, the majority of the hearing officers lack “a major background (e.g., a degree or professional experience) directly in the field of special education.” Yet, in almost all of the 10 states, including Illinois, in which at least 26% of the IHOs have such a major background in special education, the majority of the IHOs are also attorneys. The only exception is Delaware, where the lawyer is the neutral member of the tripartite panel.

Assignment Methods for IHOs

In 30 (59%) of the states, the assignment of IHOs is via direct sequential rotation. In second place for frequency, 12 (24%) of the states use random assignment. The remaining nine states use ad hoc or the aforementioned parental participation approaches. The high-activity states varied across the rotation (n = 3), random (n = 1), and ad hoc (n = 2) methods.

Challenges and Responses

The last two items of the survey form focused on problematic aspects and corresponding responses for each state system. For the item that asked each state’s representative to identify no more than two of “the most problematic aspects of your IDEA hearing system,” Table 3 provides the distribution of the most frequent responses to the multiple-choice options.

Table 3.

The Reported Most Problematic Aspects of the State Systems.^a.

Identified problem	State^b
Length of hearings (n = 20)	AK, AL, AZ, AR, CO, FL, KS, IL, IN, MA^c, ME, MD, MN, NJ, NY, NC, OH, PA, RI, WV
Recruitment and selection of IHOs (n = 18)	CA, DE, FL, IL, IA, KS, MS, MT, NE, NH, NM, SC, TX, UT, VA, VT, WV, WY
Training of IHOs (n = 14)	AL, AK, DC, DE, LA, IN, KY, GA, MI, MT, ND, SC, SD, UT
Enforcement of decisions (n = 3)	GA, OK, TX
None, including no response (n = 8)	CT, HI, ID, MO, OR, TN, WA, WI

Note. IHO = impartial hearing officer.

This questionnaire item allowed for more than one response per state.

The six most active states for adjudicated hearings are designated by italicized text. ^cIssuance of decision within 45-day timeline without reasonable extension.

The three most frequent reported challenges were length of hearings (n = 20), recruitment and selection of IHOs (n = 18), and training of IHOs (n = 14). Four of the six most active states were within the first, most frequent group. Miscellaneous responses entered under a final open-ended choice of “Other” were limited to the specific state context. For example, on the high-volume end, the District of Columbia identified its challenge in projecting the need for adjudications based on the filings each year, whereas on the low-activity end, South Dakota identified the challenge of resource allocation priorities. Similarly, in the large low-activity group of states, Iowa and Nebraska expressed concern with IHO staffing if their historically low level of hearings suddenly increased. Finally, eight states either directly or, via no response, indicated the lack of a significant system problem at this time.

For the corresponding item that asked each state’s respondent to identify no more than two “actions . . . currently in progress to address the [identified problems],” Table 4 provides the distribution of the most frequent responses to the multiple-choice options.

Table 4.

Actions in Progress to Address the Identified Problems.^a

Identified action	State^b
Additional professional development (n = 18)	AL, AK^c, AR, CA, DC, DE, GA, IA, KY, MI, MT, NJ, OH, PA, SC, SD, TX, WY
Revised procedures (n = 9)	CO, GA, MD, MA, NY, NC, OH, VA, WV
Mentors for new IHOs (n = 6)	CA, IN, MS, NV, NH, PA
Increased compensation (n = 3)	DE, KY, TX
None, including no response (n = 17)	AZ, HI, ID, IL, KS, LA, ME, MN, NE, NM, OK, RI, TN, UT, VT, WA, WI

Note. IHO = impartial hearing officer.

This questionnaire item allowed for more than one response per state. ^bThe six most active states for adjudicated hearings (except Massachusetts, which identified “Other”) are designated by italicized text. ^cSpecific to new IHOs.

Table 4 shows that the most common response action in progress (n = 18) was to provide additional training. A second, much less frequent group of actions were revising procedures (n = 9) and providing mentors (n = 6). The procedural-revision response represented a combination of various open-ended “Other” entries, including specialized ALJs (Florida), enforcement procedures (Georgia), prehearing conferences (Colorado and Maryland), interfacing with federal administering agency (Massachusetts), stakeholder meetings (North Carolina), and IHO evaluators (Virginia). Only one state, Ohio, selected the option of “structural changes (i.e., moving to a central panel and/or changing from two-tier to one-tier).” Conversely, almost equaling the most frequent action was the lack of any response in progress, accounting for 17 states. One state, Illinois, provided the following clarification: “Because of the significant overlay of state law provisions in our due process hearing system, further ability to address issues will be impaired without a concerted effort to tackle the structural issues created by the state of the law.”

Discussion

The interpretation of these findings warrants three relatively short, but significant caveats despite the 100% response rate, which is relatively unusual for modern nongovernmental surveys. First, although the improved wording, format, and technology-based transmission made the data clearer and the collection more efficient, they served to mitigate, not eliminate, the limitations of a short, structured questionnaire. The findings ultimately depend on not only the knowledge, but also the interpretation of the respondents. For example, despite the authors’ collective expertise and the additional feedback from the pilot testing in three states, an inadvertent ambiguity in full time versus part time affected the finding for IHO employment status. More specifically, from the perspective of the SEA representative, one reasonable interpretation is that an independent contractor is part time and a central panel ALJ is full time. Yet, the independent contractor, as in a high-activity state such as the District of Columbia, may be doing IDEA hearings on a full-time basis, and a central panel ALJ is typically conducting IDEA hearings as only a limited part of the position. As a related and more limiting example, in states that use central panels, but informally designate a small subgroup to conduct most of the special education hearings, answering the item that asked for the percentage of IHOs with a major background in special education depends on whether the respondent bases the calculation on all ALJs in the panel or only those in the informal and changeable subgroup. Despite the improved wording for this survey item, a follow-up step for confirmation or correction was necessary for some of the respondents. They had apparently interpreted “directly in the field of special education” as referring to extensive experience in IDEA cases, thus confusing the profession of “special education” with the specialization in “special education law.”

Second, the distinction between the high-activity states and the remaining jurisdictions is not entirely clear-cut or consistent for several reasons evident elsewhere (e.g., Zirkel, 2014a, 2014b): (a) the positions are not the same from year to year; (b) the potential measures vary from filings to adjudications; (c) even if adjudications serve as the sole criterion, the interpretation is not the same across the states, such as the status of a brief dismissal order, and the calculations are different for per capita and total activity; and (d) perhaps most significant, other states marginally below the aforementioned top six, especially with the exclusion of Puerto Rico, arguably merit either inclusion in this high-activity category or at least constitute a broad intermediate category as compared with the clearly and consistently quiescent states. For example, the Zirkel and Scala (2010) predecessor survey differentiated not only the top five states, but also, to reach at least 90% of all of the adjudications in 2008–2009, the next five states. Moreover, Massachusetts, which was in the top six in the present analysis, was only 10th in the predecessor analysis.

Third, the gradual but continuing changes not only in the systems, but also in the individual IHOs are both the reason and a limitation of this follow-up survey. As with the judicial approach for FAPE (e.g., Zirkel, 2011), this analysis is a “snapshot” as of the time of the data collection and, to the extent of the limited confirmation and correction step, the data analysis, which was during the first half of 2018. By the time the results are published, some of the specific figures may have changed, although the structure of the multiple choice items, such as rather broad category of “part-time” status and similar latitude of percentage ranges, mitigated this transience.

Judicialization Trend

Nevertheless, the following findings are relatively clear and quite consistent with the trajectory of the previous relevant research: (a) the downward direction of the two-tier systems; (b) the corresponding upward frequency of states using full-time IHOs, especially—in light of the aforementioned ambiguity—the number of states with central or specialized panels; and (c) the similarly corresponding increased predominance of attorney IHOs and reduced percentage of IHOs with special education backgrounds.

More specifically, the number of two-tier states continued downward: from 26 (Katsiyannis & Klare, 1991) to 17 (Ahearn, 2002) to nine (Zirkel & Scala, 2010) to seven in this 2018 snapshot. Moreover, New York remains the notable exception for the high-activity states. Similarly, the number of systems with full-time hearing officers continued upward, with central panels increasing from six (Katsiyannis & Klare, 1991) to 12 (Zirkel & Scala, 2010) to 20 states herein this 2018 survey. Again, New York is the notable exception in the high-activity group, with the District of Columbia, Massachusetts, and Pennsylvania establishing specialized panels. Finally, although the comparison is not quantitatively direct due to variety in measures, such as percentage of IHOs in Smith (1981), any versus exclusive attorney IHOs per state in Katsiyannis and Klare (1991), predominant backgrounds in Zirkel and Scala (2010), and percentage ranges here, the trend away from special education expertise and toward legal background continues, with all of the high activity states except New York fitting this pattern. Moreover, New York has so many IHOs and so much activity that individual caseloads are an intervening variable beyond the scope of this pair of survey items.

This overall pattern fits the model that commentators have referred to as “legalization” for special education generally (e.g., Neal & Kirp, 1985) and “judicialization” for IDEA due process hearings specifically (e.g., Zirkel et al., 2007). This gradual trend presents systemic trade-offs and structural issues, as the findings for problematic aspects and corresponding actions illustrate.

For example, the most frequent problem that Table 3 identified was length of hearings, which is attributable in large part to the professionalized specialization of adjudication, for which legal background and specialized procedures are the hallmarks. It is no coincidence that the 2004 amendments of the IDEA established basic knowledge and ability competency requirements for IHOs that focused on “legal interpretations” generally and specifically conducting hearings and writing decisions according to “standard legal practice” (§ 1415[f)][3][A]). The movement to one-tier systems is both a result and response to judicialization because (a) it fits with the legal professionalization of the IHOs and (b) by removing the second term has the potential for both reallocation of fiscal resources and reduction of time for the completion of administrative adjudication. This movement is likely to continue, as evidenced by Ohio’s reported consideration of structural change. Based on not only its high activity, but also its continuing problems of timeliness and intertier decisional differences, New York also may wish to consider structural reform.

Yet, although the U.S. Department of Education’s data are insufficiently precise to show the extent of hearing length problem (Governmental Accountability Office, 2014), CADRE analyses reveal that a large majority of fully adjudicated due process hearing decisions issued in 2015–2016 were not within the 45-day timeline (CADRE, 2018). Thus, the movement to one tier does not resolve the initial delay in administratively final decisions, likely attributable to the state laws and prevailing practices of judicialization, which in some states include discovery procedures and prehearing motions. At the same time, the hearing length problem is also attributable to legalization process more generally, including the growth in IDEA jurisprudence, party legal representation, and specialization of expert witnesses.

A second example is the general trade-off of legal for special education expertise, as reflected in the corresponding results in Table 2. The aforementioned ambiguity in and clarification for the survey item corresponding to this table and the conflation in the corresponding Zirkel and Scala’s (2010) table made the comparison imprecise, but the detectable trend was for less special education background accompanying the increase in legal background. Although the informal or formal specialization in some of the ALJ panels has partially alleviated the matter in terms of overlapping expertise in special education law and a limited, but notable number of IHOs with dual background, the nuances and norms of practitioners and professors of special education is a general net loss in tandem with the judicialization trend.

In contrast, the lack of a similar consistent pattern for the method for assigning IHOs is primarily attributable to the gradual judicialization movement toward central or specialized panels. Whereas SEAs typically gravitate toward random or rotational assignments, the ALJ-type panels have internal procedures that, providing for discretion aimed at efficiency, tend to fit within the broad “ad hoc” category. Yet, approaches for party participation, as illustrated by the varying approaches in Alaska, Kansas, Missouri, and Montana, fit with the worthwhile experimentation and customization purposes of states within a federal system. Delaware’s less direct model of a tripartite panel, although certainly laudable in theory, is clearly questionable as a matter of efficiency.

Resulting Recommendations

Policy recommendations warrant caution for customization to not only the adjudicative activity, but also the particular culture of the state. In the high-activity states, the use of one-tier full-time-specialized IHOs either as a formal subset of a central panel, as exemplified in Massachusetts, or as an entirely separate unit, as exemplified in Pennsylvania, appears to be warranted. The District of Columbia provides another alternative, although separation from the SEA should be considered in light of the IHO’s de facto full-time status, even though the prohibition only strictly applies to employees (Letter to Chester, 2009). The literature specific to administrative adjudication (e.g., Gilbert & Cohen, 2017) and the particular issues of central panels (e.g., Gillette, 2016), including the comparison with more specialized arrangements (e.g., Nolan, 2009) helps inform the policy choices.

For medium-activity states, the available and suitable options appear to fit within a longer menu. The key is reinforcing or revising the model so as to optimize efficiency. Said efficiency includes recruitment, selection, and training of IHOs for not only impartiality and expertise but also timeliness in completing the hearing to a final decision. Finally, for the very low-activity states, which may have no more than one or two adjudicated hearings per year, one wonders whether a focus on customized details is a prudent investment of policy attention and resources as compared with creative and efficient ways of implementing the problem and solution of providing useful professional development. Particularly, but not exclusively, for such low-activity states, the federally funded Center for Appropriate Dispute Resolution in Special Education (CADRE) should provide effective training modules as a permanent archive to supplement the ongoing, but not institutionalized IHO professionalized development programs that are offered on an ad hoc basis regionally and as annual conference basis nationally.

During the next reauthorization of the IDEA, which is not at all imminent, Congress should consider revisions in the overall dispute resolution template based on the various proposals summarized and supplemented in Shaver’s (2015) comprehensive analysis. With or without such IDEA revisions, state policy makers should consider the complementary data in a companion analysis of state laws specific to due process hearings (Zirkel, 2018b). This analysis identified, for example, the state laws for IHO impartiality (n = 30), training (n = 21), qualifications (n = 11), and assignment (n = 11). Conversely, they should not consider systemic changes in their hearing systems without simultaneously formulating and implementing improvements in the full continuum of dispute resolution options (e.g., Mueller, 2014; Zirkel & McGuire, 2010).

Finally, scholars need to provide follow-up research for more intensive insights. Given the limitations of a short self-report survey, the more in-depth investigation should include (a) detailed surveys that provide for not only additional items, such as the average length of adjudicated hearings, but also more intensive items, such as specific methods for improving the recruitment and selection of hearing officers, and (b) qualitative research techniques that explore stakeholder, including IHO, perceptions in selected states.

Although the use of less adversarial measures to resolve special education disputes is encouraging, the right to a due process hearing remains a cornerstone in special education. It is essential that the state systems for delivering this right are effective for students with disabilities, their parents, and their school systems. This latest snapshot contributes to both policy consideration and further research for fulfilling this goal.

Footnotes

Declaration of Conflicting Interests

The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The author(s) received no financial support for the research, authorship, and/or publication of this article.

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