Navigating a Virtual Due Process Hearing During the Pandemic

April 20, 2020Alerts

Since the Office of Special Education Programs has not suspended the requirements of the Individuals with Disabilities Education Act during the mandatory school closures, the Office of Dispute Resolution is holding all due process hearings virtually. Each hearing officer is deciding the procedures he or she will utilize during the hearing. I recently represented a school district in a virtual due process hearing and the preparation and participation in a virtual hearing presents several issues and challenges. I am sharing my experience to alert and assist school districts with the issues and challenges in preparing and participating in a virtual due process hearing.

Preparing District Witnesses for the Virtual Hearing

The mandatory school closures and social distancing requirements vastly change the manner in which we now prepare district witnesses for a due process hearing. Gone are the days of preparing district witnesses in person with a binder of exhibits to review. Instead, we now must prepare witnesses either virtually or telephonically. If possible, I recommend preparing a witness virtually through a secure platform. In advance of preparing a witness the exhibits should be shared electronically with the witness. While it is possible to prepare exhibit binders for witnesses, most districts will find it cost prohibitive to prepare and send exhibit binders to the number of district witnesses that will be called to testify at the hearing. I found that witnesses were easily able to review the exhibits electronically during virtual preparation for the hearing.

Logistics of the Virtual Hearing

The hearing officer in my case held two conference calls with counsel to discuss the logistics of the virtual hearing. During these conference calls the hearing officer informed us we would be using GoToMeeting for the hearings. The hearing officer sent a calendar invite to counsel with the link to the meeting and also sent an email to counsel with a link to the meeting to be shared with all witnesses. In addition to the links to the meeting, the hearing officer provided a call-in number in the event an issue arose accessing the link. Regarding witnesses’ access to exhibits, the hearing officer offered two options: (1) share a link to the Dropbox so that witnesses could open and review the exhibits upload by the parties while testifying or (2) have the hearing officer project the exhibit during the hearing so that everyone present at the hearing could view the exhibit while the witness was testifying. Parent’s counsel and I opted to have the exhibit projected during witness testimony, with the option to share the Dropbox link if there were issues with projecting an exhibit. During the hearing we did not experience any issues with the projection of exhibits.

During one of the pre-hearing conference calls we discussed with the hearing officer potential confidentiality issues with witnesses testifying at home, particularly if parent requested a closed hearing. Parent’s counsel informed us that parent wanted a closed hearing and we agreed that if anyone’s family member entered the room at any time during the hearing, the hearing would remain a closed hearing.

Regarding testimony, during virtual hearings this hearing officer is not placing time limitations on witness testimony. In addition, before each witness testified the hearing officer asked the witness to confirm no other individuals were present in the room while the witness was testifying, that the witness was not utilizing any notes or documents and that the witness did not have access to another device.

The hearing officer recommended that counsel use headphones during the hearing because the speakers on computers can cause an echo. However, headphones are not required to be worn during the hearing. I had headphones ready to use, but tried participating without the headphones. Several minutes into the hearing we all heard an echo and the hearing officer determined the echo was coming from my computer. After I turned on my headphones we did not have any further issues with an echo. I recommend that counsel have headphones ready to use during the hearing.

Communication with the LEA Representative

Normally during the hearing the LEA representative sits next to district counsel and is able to communicate with counsel regarding issues that arise during the hearing. During the virtual hearing the hearing officer allowed the LEA representative to communicate with district counsel either by email or by text, except when the LEA representative was testifying.

In addition, before counsel finished examining a witness the hearing officer, at the request of counsel, paused the hearing so counsel could speak with her client about any additional questions for the witness. To confer with our clients we turned off our camera and muted the audio. Even though the cameras were turned off and the audio was muted, I recommend counsel and the client go into another room to talk in the event the camera and audio are not properly closed. This will prohibit opposing counsel, the witness and the hearing officer from inadvertently hearing the conversation between counsel and his or her client.

Technical Issues

During the hearing we did encounter some technical issues. During parent’s counsel’s opening statement, the stenographer’s internet connection froze and although we could see the stenographer, we did not realize that the stenographer could not see or hear us until GoToMeeting notified the hearing officer that the stenographer was no longer in the meeting. The stenographer had issues reconnecting to GoToMeeting, so the hearing officer had counsel and the parties disconnect from GoToMeeting and then call back into the meeting using either a mobile phone or landline. We then logged back into GoToMeeting and utilized the camera, but the audio connection was through our phones. Parent’s counsel had to start her opening statement from the beginning because the stenographer missed the majority of the opening statement when she lost her internet connection.

Just before one of parent’s witnesses was about to testify the witness lost the internet connection at his home. The witness was able to use his mobile phone to call into the meeting, but without an internet connection he was unable to log into GoToMeeting and view any exhibits projected by the hearing officer. Because this particular witness’s testimony involved a limited issue and the witness needed to testify only about his resume and a letter he had written, the hearing officer allowed the witness to testify. The hearing officer stated that the witness could later submit an affidavit in support of the exhibits he testified about if counsel requested the submission of an affidavit.

Each hearing officer has his or her own procedures for a hearing and a different hearing officer may use a different virtual platform and procedures for the hearing he or she is overseeing. As schools remain closed indefinitely, school districts and their counsel should prepare for the issues and challenges of preparing for and conducting a virtual due process hearing.

In summary, I recommend the following for preparing for and participating in the virtual hearing:

  • Preparation of district witnesses should occur virtually through a secure platform.
  • In advance of preparing a district witness, the exhibits should be shared electronically with the witness.
  • Upon receipt of the link to the virtual hearing, district witnesses should try to access the link to determine any connectivity issues prior to the first day of the hearing.
  • Counsel and witnesses should utilize headphones, if possible, while participating or testifying at the hearing.
  • Allow the hearing officer to project exhibits while witnesses are testifying.
  • District counsel and the LEA representative should determine how they will communicate with one another during the hearing and exchange mobile telephone numbers.
  • When district counsel and the LEA representative confer during a break in the hearing, they should leave the room where they had been participating in the hearing in the event the camera and audio were not properly closed.

For more information about this alert please contact Michele Mintz at 610.397.2237 or [email protected]