On October 11, 2023, Berchem Moses secured a hearing officer’s order preventing the retroactive application of Section 47 of Public Act 23-137 concerning which party proceeds first with their evidence in a special education due process hearing to a case that had originally been filed with the Bureau of Special Education on May 1, 2023.
At the time that the due process complaint was filed, Regulations of Connecticut State Agencies § 10-76h-14 provided that “[t]he party who filed for due process has the burden of going forward with the evidence,” meaning that the parents would typically proceed first to present evidence to the hearing officer regarding how the child was denied an appropriate program. While this case was pending, P.A. 23-137 was passed by the State Legislature, signed into law by Governor Lamont, and became effective on July 1, 2023, stating that “[t]he hearing officer or board shall hear the testimony offered by the local or regional board of education or the unified school district responsible for providing special education to a child or pupil first in any dispute concerning the provision of free appropriate public education,” meaning that after July 1st, a school district must always proceed first in the hearing to show that its IEP for a child with a disability is appropriate to meet the child’s unique needs.
In Stratford Board of Education, Case No. 23-0488, Berchem Moses attorneys successfully argued that applying P.A. 23-137 retroactively, to a case that had been pending before the Act was signed into law, was inequitable and would prejudice the Board of Education by changing the rules in the middle of the game. Hearing Officer Kennedy agreed and granted the Board’s motion to prevent the retroactive application of this change.
If you have a due process case that was filed before P.A. 23-137 took effect on July 1, 2023, we want you to be aware of this ruling. Any questions regarding representation of school districts in special education matters may be directed to our school law team. We are proud to serve Connecticut school districts in any and all matters concerning education law.