Changes for Pennsylvania special education practice

Bold prediction: special education disputes will lead to more litigation. Perhaps it is not so bold, after all. But if Pennsylvania finalizes the proposed changes to Chapter 14 of the Education Regulations and removes the second level of administrative hearing appeal, I believe the legal practice will undergo some significant changes.

Delving into some generalizations, the second level appellate review has been viewed as a low cost second chance. Most cases (but not all) proceed to that level. But, I think, most cases stopped after two runs through administrative review. This is especially so if both levels of administrative review yielded the same essential result. Most courts, we tend to think, would not want to second-guess two levels of administrative review.  In playing for the best-out-of-three, if the hearing officer and the appeal panel came to quite different results, the case is more likely to get to court.  And, finally, in those cases offering very mixed relief after two reviews, the parties seem to realize they are better off taking matters in to their own hands and settling the claims.

While lawyers on both sides may have their gripes about the appeal panels, the process probably, perhaps in a perverse way, resulted in less cases going to court. So what might happen without that second level of review?

·        Probably more court cases.

·        Hearings might look more like traditional discovery with the expectation that the hearing is only the first step, a precursor to court.

·        Related to this, given the short time lines for administrative hearings, court proceedings will look more like traditional litigation than the paper appeal that now usually occurs. The parties will be submitting more evidence and expert testimony in court, particularly as, once in court, the Federal Rules permit discovery opportunities and more time to develop a case. Indeed, in this situation, the lawyers probably have a duty to their clients to use all the available court-level tools.

·        And that case might likely be a more traditional de novo review without deference to the hearing officer. The “presumed expertise” of the hearing officer will be challenged. One of the main problems with the current system is that hearing officers are not always educational experts or at least are not trained in current practices like educators and psychologists. Thus, the losing party will argue that the court should give no deference to the decision. This, of course, fits well with offering additional evidence.

·        Whether the presumed expertise stands or not, given only one level of presumed expert review, administrative findings of fact are likely to be subject to reversal and modification than currently.

·        Additional evidence proceedings in court will become actual trials if the deference standard is not going to apply.

The experience in one-level review states, such as New Jersey, might be instructive to some extent. In that regard, it seems in the Third Circuit that more federal special education cases come from New Jersey than Pennsylvania. But still, it will probably be only somewhat instructive. As noted, in Pennsylvania we will be dealing with a sudden change, from a system that by fault or designed weeded out many cases, to a situation in which both sides will scramble for an advantage. 

In the end, the field will be of special education litigation, not special education hearings.

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