SENATE JOINT MEMORIAL 96
47th legislature - STATE OF NEW MEXICO - first session, 2005
INTRODUCED BY
Pete Campos
A JOINT MEMORIAL
REQUESTING THAT THE LEGISLATIVE EDUCATION STUDY COMMITTEE COLLABORATE WITH SCHOOL DISTRICTS AND THE PUBLIC EDUCATION DEPARTMENT TO STUDY THE COSTS OF THE CURRENT DUE PROCESS HEARING SYSTEM TO SCHOOL DISTRICTS AND TO OFFER STRATEGIES TO REDUCE THE FISCAL AND STRUCTURAL IMPACT ON LOCAL SPECIAL EDUCATION DEPARTMENTS AND INCREASE THE EFFICIENCY OF DUE PROCESS HEARINGS.
WHEREAS, the state and school districts are responsible for implementing the federal Individuals with Disabilities Education Act; and
WHEREAS, the federal Individuals with Disabilities Education Act provides for due process hearings for parents of disabled students who have complaints relating to the identification, evaluation or educational placement of a student; the provision of a free, appropriate public education to a student; or the placement of a student in an alternative educational setting; and
WHEREAS, the state is responsible for the training and payment of due process hearing officers and, subsequently, for the procedure used in the hearings; and
WHEREAS, school districts pay for due process hearing officers who conduct due process hearings, regardless of whether the school district is ultimately found to have violated the federal Individuals with Disabilities Education Act or the complaint is found to be without merit; and
WHEREAS, currently, due process hearings generally last at least three days and have lasted as long as ten days; and
WHEREAS, school districts are often left with just part of the last day of the hearing to present their cases, because petitioners are allowed the majority of hearing time to present their cases, often questioning individual teachers and staff for numerous hours during a hearing; and
WHEREAS, school districts bear all the administrative costs of holding the hearing, including costs such as payments to the due process hearing officer; the wages of a court reporter; payments for hearing facilities; and payment of the school district's attorney fees, which costs increase dramatically with the length of the hearing; and
WHEREAS, the average cost of a hearing in the largest school districts in the state can be three times that of the state average hearing cost; and
WHEREAS, in addition to due process hearing costs, school districts bear the costs of having teachers, social workers, therapists and other educational professionals absent from their jobs so that they may prepare for and testify in lengthy due process hearings, hearings in which they often have to wait for hours before testifying due to a lack of structure in the hearing process and witness presentations; and
WHEREAS, a parent may bring multiple claims in a year and generate multiple due process hearings on behalf of the same student; and
WHEREAS, the public school insurance authority may limit coverage of the costs of due process hearings to one hearing per year per plaintiff and, therefore, may not cover the costs of multiple due process hearings required for the same student in the same year; and
WHEREAS, unnecessarily extended, unstructured and expensive hearings are a drain on the financial resources of special education departments and school districts, depleting money that might otherwise be used to provide services to students and support to teachers and staff; and
WHEREAS, in many cases, school districts agree to financial settlements to avoid hearings that would increase the financial and structural pressure on them, and plaintiffs recognize that school districts may prefer to save time and money by settling complaints rather than incur the expense and lost time resulting from due process hearings, even though a settlement means that the resolution of the issue is not based on the facts or law bearing on the individual case;
NOW, THEREFORE, BE IT RESOLVED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO that the legislative education study committee be requested to collaborate with school districts and the public education department to study methods of streamlining due process hearings, thereby increasing their efficiency, decreasing the time devoted by school districts and personnel to them and reducing their fiscal impact on special education budgets, and to study the coverage of due process hearings provided by the public school insurance authority and the extent and effect of its limitations on coverage of those hearings; and
BE IT FURTHER RESOLVED that the legislative education study committee be requested to make the public education department aware of the strategies identified; and
BE IT FURTHER RESOLVED that the public education department be requested to review and implement the strategies identified by the study resulting from this memorial; and
BE IT FURTHER RESOLVED that the public education department work with the legislative education study committee to identify an implementation plan for the strategies developed and present those strategies and the subsequent implementation plan to the legislature for review by November 2006; and
BE IT FURTHER RESOLVED that the public education department and the legislative education study committee identify the costs and seek appropriations or changes in law, where necessary, to implement the strategies agreed upon; and
BE IT FURTHER RESOLVED that copies of this memorial be transmitted to the secretary of public education and to the chair and the director of the legislative education study committee.
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