Impartial due process hearings for special education matters.
Purpose:
Ensure that due process hearings are conducted in a more efficient and expeditious manner in order to meet statutory time lines.
Text or summary was published
in the November 6, 2013 issue of the Register, I.D. No. EDU-45-13-00035-EP.
Final rule as compared with last published rule:
No changes.
Text of rule and any required statements and analyses may be obtained from:
Mary Gammon, State Education Department, Office of Counsel, State Education Building, Room 148, 89 Washington Ave., Albany, NY 12234, (518) 464-6400, email: legal@mail.nysed.gov
Initial Review of Rule
As a rule that requires a RFA, RAFA or JIS, this rule will be initially reviewed in the calendar year 2017, which is no later than the 3rd year after the year in which this rule is being adopted.
Assessment of Public Comment
Since publication of a Notice of Proposed Rule Making in the State Register on November 6, 2013, the State Education Department (SED) received the following comments on the proposed amendment.
Ensures sufficient number of IHOs; discourages unwillingness to accept appointment without good cause.
DEPARTMENT RESPONSE:
Comments supportive.
COMMENT:
Many reasons why IHO may not serve; invites litigation. Conflicting appointments or active IHOs who cannot take on additional cases is not unwillingness. Do not require training while IHOs inactive.
DEPARTMENT RESPONSE:
Allows good cause to be established on a case-by-case basis. All IHOs must participate in required training.
COMMENT:
Does not address IHO inadequate compensation.
DEPARTMENT RESPONSE:
District develops IHO compensation policy within State maximum rate. Compensation must include pre-hearing, hearing, and post-hearing activities, reimbursement for travel and other hearing-related expenses.
Section 200.5(j)(3)(i)– IHO Impartiality
COMMENT:
Impartiality necessary. Addresses conflict between acting as advocate and maintaining neutrality. Will decrease challenges to IHO impartiality; reduce IHO appointment time.
DEPARTMENT RESPONSE:
Comments supportive.
COMMENT:
Add IHOs cannot serve when they have represented parents in special education matters in State during past two years and/or have submitted written or oral testimony in any action against district.
DEPARTMENT RESPONSE:
Not appropriate to further restrict IHO’s appointment based on representation of parties in other matters or districts. Many IHOs have other employment responsibilities; purpose is to further ensure IHOs do not have professional conflicts of interest with districts in which IHO presides. Parties may challenge IHO impartiality.
Section 200.5(j)(3)(ii) - Consolidation
COMMENT:
Redundant to repeat testimony; will save time and money; offers IHOs clarity on how and when consolidation can occur; prevents forum shopping.
DEPARTMENT RESPONSE:
Comments supportive.
COMMENT:
Prohibit consolidation if subsequent complaint is filed within five days of hearing commencement, unless other party consents.
DEPARTMENT RESPONSE:
Decline as it may not be in the interests of judicial economy or the student’s educational interests. IHO has discretion to determine consolidation appropriateness. Party may amend complaint only if other party consents in writing and has opportunity for resolution meeting; or IHO grants permission. Does not circumvent limits imposed on IHO’s authority to grant permission for amended complaint.
COMMENT:
If parties jointly oppose assignment to same IHO or consolidation of two complaints, matters should be assigned to different IHOs. Only allow for same school year issues identified in initial request.
DEPARTMENT RESPONSE:
Consolidation determination would be at IHO discretion based on regulatory considerations.
COMMENT:
Will allow ‘forum shopping’.
DEPARTMENT RESPONSE:
If proceeding is pending and another complaint notice is received for the same student involving same parties, district would be required to appoint same IHO (unless that IHO is unavailable). IHO would determine whether to consolidate. Once decision is rendered, nothing would require the same IHO be appointed for additional requests for same student. If subsequent complaint is filed on student while hearing is pending before IHO on same student, complaint would be forwarded to IHO to determine whether to consolidate. Only if hearing is pending would subsequent complaint be forwarded to same IHO.
COMMENT:
Consideration factors should be in guidance.
DEPARTMENT RESPONSE:
Regulations ensure statewide consistency in IHO practice.
Section 200.5(j)(4)(iii) –So-ordered decisions
COMMENT:
IHOs should render decisions on matters they have knowledge of.
DEPARTMENT RESPONSE:
Comments supportive.
COMMENT:
Clarify “matters not before the IHO in complaint” do not contradict flexibility with regard to proposed relief in complaint which is required only to include “a proposed resolution of the problem to the extent known and available at the time”. Allow IHO to order appropriate remedy, especially when parties jointly request.
DEPARTMENT RESPONSE:
Wouldn’t limit IHO from so-ordering appropriate remedies related to issues in complaint or amended notice.
COMMENT:
Would divide settlement into enforceable and unenforceable terms. Does not foster desired efficient settlement outcomes. Mandate so-ordered settlements to provide judicial oversight to fully protect children’s rights.
DEPARTMENT RESPONSE:
By federal and State law, all terms of settlement agreements are enforceable in court, not just those IHO “so-ordered”.
COMMENT:
Law does not prohibit or disfavors so-ordering a remedy not sought in complaints. IHO remedial power is broadly defined; may order any remedy to resolve the dispute and assist parties in working together. Judicial sanction should be involved in any settlement involving the interest of a child. Provide IHO latitude based on case specifics and party agreement.
DEPARTMENT RESPONSE:
Nothing in proposed amendment “disfavors or discourages” settlement. Parties may reach agreement on other issues; IHO jurisdiction is limited to complaint issues. If issue in settlement agreement is within IHO jurisdiction, complaint notice could be amended with written party agreement or by submission of a separate complaint notice.
COMMENT:
Will make settlement cumbersome process, involving IHO reviewing terms in detail.
DEPARTMENT RESPONSE:
IHOs should be clear regarding the terms of any decisions rendered. Proposed amendment doesn’t require testimony or production of evidence as would be required at hearing.
COMMENT:
Should parties become aware of information subsequent to the hearing initiation, that information may impact appropriate outcome.
DEPARTMENT RESPONSE:
Do not agree that rule will have negatively impact parties reaching settlement agreements. Agreements are routinely reached through resolution and mediation sessions that are not IHO ‘so-ordered’. Parties may amend complaint notice if they become aware of information after hearing initiation.
COMMENT:
Allow IHO discretion. Revise to limit IHOs orders on issues outside the scope of their subject matter jurisdiction (such as attorney fees), not on stipulations that globally address special education issues (evaluation, program, placement, reimbursement).
DEPARTMENT RESPONSE:
IHOs must use appropriate discretion to determine if settlement would remedy issues in complaint notice. However, “stipulations that globally address a student’s special education issues” may or may not be related to the complaint or amended notice. While parties may reach agreement on other issues, IHOs are limited in jurisdiction to issues raised in the complaint.
Section 200.5(j)(5) – Decision timeline
COMMENT:
Several supported. Student’s education is at stake; rendering timely decisions is essential. Adheres to federal timelines.
DEPARTMENT RESPONSE:
Comments supportive.
COMMENT:
Allow more time to avoid rushed decisions.
DEPARTMENT RESPONSE:
Timeline is consistent with federal timelines and cannot be revised to allow more time.
Section 200.5(j)(5) – Submission of a redacted decision to SED
COMMENT:
Several supported. One stated: given the technology that exists, an IHO shouldn’t need an additional 15 days to mail a properly redacted decision.
DEPARTMENT RESPONSE:
IHOs must transmit decision to the parties within 14 days from the record close date. Current regulations require that IHOs transmit redacted copies of decisions to SED within that same timeframe. Proposed regulation provides IHOs with additional time to complete redactions and transmit to SED after the decision has been mailed to the parties.
COMMENT:
Present redaction requirements are burdensome and diminish access to decisions. Clarify that the time and cost of redactions will not transfer to districts.
DEPARTMENT RESPONSE:
IHO requirement for redacted copy of decision to SED is a long-standing requirement, based on federal regulation. SED’s redaction guidelines are also consistent with standards for release of documents under Freedom of Information Law (FOIL) and ensure protection of student confidentiality.
Section 200.5(j)(5)(i)-(iv) - Extensions
COMMENT:
Most strongly supported prohibiting IHOs from soliciting extensions or unilaterally issuing extensions for any reason; and supported additional flexibility to grant an extension for settlement purposes. Ensures matter is timely resolved while providing IHO flexibility to grant extensions for settlement discussions; may help resolve more cases without hearings.
DEPARTMENT RESPONSE:
Current regulatory legal standard requires IHO to find a compelling reason or specific showing of substantial hardship before doing so. Under proposed amendment, IHO must find good cause based on likelihood that settlement agreement may be reached before granting an extension for this reason. While the legal standard has been relaxed, IHOs may not grant such extensions without first making findings of good cause. IHO may only grant an extension after fully considering the factors provided in section 200.5(j)(5)(ii).
COMMENT:
The language: The impartial hearing officer shall not rely on the agreement of the parties [is not a sufficient] as a basis for granting an extension” undermines cooperative efforts between the parties.
DEPARTMENT RESPONSE:
Parties may agree to extension request but IHO may not use this as basis for granting without first fully considering section 200.5(j)(5)(ii) factors.
COMMENT:
School holidays frequently render witnesses unavailable. Revise to eliminate prohibition on consideration of schedules of the parties and their representatives. Limiting extensions to 30 days often necessitates successive extensions; IHOs spend extra time to document successive extensions. IHO’s should be permitted to grant 60 day extensions.
DEPARTMENT RESPONSE:
Recommended changes would be counter to SED’s commitments under a court settlement (see Engwiller v. Mills et al., 00 CV 2436) to develop stringent time line requirements for special education hearings as well as to the intent of the proposed regulation to provide for more timely and efficient hearings.
COMMENT:
IHOs should not be required to create written decisions on extensions.
DEPARTMENT RESPONSE:
Proposed amendment does not require a written decision on extension requests but that IHOs respond in writing to the parties on each request for an extension and set forth the facts relied upon for each extension granted.
Sections 200.5(j)(5); 200.5(j)(5)(vi) - Record
COMMENT:
IHOs should promptly transmit record and decision to district. Ensures timely changes/additions to student’s program and placement. Existing regulations omitted requirement for IHOs to transfer record to district.
DEPARTMENT RESPONSE:
Comments supportive.
COMMENT:
Include timeline for submission of record.
DEPARTMENT RESPONSE:
Regulation would require timely submission; not necessary to require specific number of days.
COMMENT:
Proposed definition vague and broader than accepted legal practice in civil and administrative litigation. All material included in the record is required to be in the list of exhibits. Some documents are already in the district’s possession. Would increase district's cost for IHO fees to submit record. IHOs would likely not be compensated for work related to the record.
DEPARTMENT RESPONSE:
Further ensures record includes all information considered by IHO in rendering decision to ensure accurate, complete record should decision be appealed. Definition not vague/ambiguous. IHOs entitled to compensation for pre-hearing, hearing, post-hearing activities.
Section 200.5(j)(6) - Withdrawals of requests for hearings
COMMENT:
Should preclude complaint filings without merit; may limit “judge shopping”.
DEPARTMENT RESPONSE:
Comments supportive.
COMMENT:
Requires analysis of request to determine complaint basis by those who may not know how to do this. Errors, delays likely.
DEPARTMENT RESPONSE:
Staff may consult with district special education personnel for clarity.
COMMENT:
Clarify “Order of termination”.
DEPARTMENT RESPONSE:
Means written order that notifies parties the hearing has ended because party withdrew request; indicates whether the termination is with or without prejudice and the reasons therefor.
COMMENT:
Add that party must have a reasonable opportunity to respond to notice of withdrawal prior to IHO issuance of termination order. Add timeline for order and parties’ response.
DEPARTMENT RESPONSE:
IHOs must timely act while still providing the parties with reasonable opportunity to be heard.
COMMENT:
Clarify withdrawal v. termination. Add termination of hearing, once commenced, would preclude party from filing another complaint on same or similar claims.
DEPARTMENT RESPONSE:
Party would not be precluded from filing another complaint on same or similar claims, unless IHO ordered termination with prejudice.
COMMENT:
Clarify why written order of termination needed.
DEPARTMENT RESPONSE:
To ensure parties are properly informed that hearing has ended and conditions of withdrawal, if any.
COMMENT:
Require NYC to compensate IHOs for issuing termination orders.
DEPARTMENT RESPONSE:
Written orders are included in activities for which IHO must be compensated.
COMMENT:
Process favors districts.
DEPARTMENT RESPONSE:
Does not favor one party over the other; provides safeguards against IHO shopping; ensures statewide consistency; provides clear authority to ensure that interests of the parties are not prejudiced by withdrawal.
COMMENT:
Revise; allow petitioner to continue hearing as alternative to withdrawal with prejudice.
DEPARTMENT RESPONSE:
Party who was withdrawing the case could decide to proceed with hearing with currently appointed IHO.
COMMENT:
Clarify ‘commencement of hearing’.
DEPARTMENT RESPONSE:
First date hearing is held, excluding prehearing conference if conducted.
