To align State's timeline requirements for issuing impartial hearing decisions to Federal requirements; address factors leading to delays in the completion of impartial hearings; and address issues relating to the manner in which hearings are conducted.
Public hearing(s) will be held at:
2:00 p.m.-5:00 p.m., Feburary 15, 2012 at Manhattan ACCESS District Office, 116 W. 32nd St., 5th Fl. Conference Rm., New York, NY; 2:00 p.m.-5:00 p.m., February 21, 2012 at Capital Region BOCES, Central Administration, 900 Watervliet-Shaker Rd., Albany, NY; and 2:00 p.m.-5:00 p.m., February 23, 2012 at Monroe-1 BOCES, 15 Linden Park, Rochester, NY.
Interpreter Service:
Interpreter services will be made available to hearing impaired persons, at no charge, upon written request submitted within reasonable time prior to the scheduled public hearing. The written request must be addressed to the agency representative designated in the paragraph below.
Accessibility:
All public hearings have been scheduled at places reasonably accessible to persons with a mobility impairment.
Substance of proposed rule (Full text is posted at the following State website): http://www.p12.nysed.gov/specialed/timely.htm
The State Education Department proposes to amend sections 200.1 and 200.5 of the Commissioner's Regulations. The following is a summary of the substantive provisions of the proposed rule.
Certification and appointment of IHOs [new sections 200.1(x)(vi) and 200.5(j)(3)(c)]:
The proposed rule would require an individual certified by the Commissioner as a hearing officer to be willing and available to accept appointment to conduct impartial hearings, and would provide for the rescinding of an impartial hearing officer (IHO)'s certification if he or she is unavailable or unwilling to accept an appointment within a two-year period of time, unless good cause is shown.
The proposed rule would also prohibit an IHO from accepting appointment as an IHO if he or she is an attorney involved in a pending due process complaint involving the same school district, or has, within a two-year period of time, served in the same district as either an attorney in a due process complaint or as a provider of special education advocacy to parents of students with disabilities.
Consolidation of multiple due process requests for the same student [new section 200.5(j)(3)(ii)(a)]:
In the interests of judicial economy and in furtherance of the student's educational interests, the proposed rule would establish procedures for the consolidation of multiple due process hearing requests filed for the same student, including the factors that must be considered in determining whether to consolidate separate requests for due process.
Prehearing conferences [200.5(j)(3)(xi)]:
The proposed rule would require that IHOs conduct prehearing conferences for all due process requests received on or after July 1, 2012 and that the IHO issue a prehearing order to address certain procedural matters and to identify the factual issues to be adjudicated at the hearing. These requirements will provide IHOs with the tools to move the hearing forward in a smooth, orderly fashion, and to render decisions in an efficient and expeditious manner.
Withdrawals of requests for due process hearings [new section 200.5(j)(6)]:
The proposed rule would address existing concerns regarding the withdrawal and subsequent resubmission of the same or substantially similar due process complaints by establishing procedures for the withdrawal of a due process complaint and requiring a withdrawal to be made on notice to the IHO if it is made after the commencement of the hearing. In particular, the amendment would establish procedures for the withdrawal of a due process complaint, which would require a withdrawal to be made on notice to the IHO if it is made after the commencement of the hearing; would expressly authorize the IHO to dismiss a due process complaint with prejudice if the other party to the claim would be prejudiced by the withdrawal; and would provide for the same IHO to be appointed if the party who withdrew subsequently files another due process complaint within one year from the withdrawal that is based on or includes the same or substantially similar claims as made in a prior complaint.
Extensions to the due date for rendering the impartial hearing decision [section 200.5(j)(5)]:
The proposed amendment further reinforces the importance of granting extensions for only limited purposes, while addressing the practical concerns IHOs may face in conducting a hearing when the parties attempt to engage in settlement negotiations. The amendment would expressly prohibit an IHO from soliciting extensions for purposes of his or her own scheduling conflicts; prescribe additional considerations an IHO must consider in granting an extension; prohibit an IHO from granting an extension after the record close date; and require the IHO to set forth the facts relied upon for each extension granted. The proposed amendment authorizes an IHO to grant up to one 30-day extension for the purpose of settlement discussions between the parties.
Timeline to render a decision [section 200.5(j)(5)]:
To further align the State's timeline requirements for issuing decisions with the federal requirements, the proposed amendment would clarify that:
• when a district files a due process complaint, the decision is due not later than 45 days from the day after the public agency's due process complaint is received by the other party and the State Education Department; and
• when a parent files a due process complaint notice, the decision must be rendered 45 days after the date on which one of the following conditions occurs first: (1) the IHO receives the parties written waiver of the resolution meeting, (2) the IHO receives the parties written confirmation that a mediation or resolution meeting was held but no agreement could be reached, or (3) the expiration of the 30-day resolution period (unless the parties agree in writing to continue mediation at the end of the 30-day resolution period).
Overall, the proposed amendment will streamline the process for conducting hearings, which will in turn, facilitate a more efficient and expeditious hearing. This improved process will promote timely due process decisions and is likely to result in costs savings to districts.
Text of proposed 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) 474-8857, email: legal@mail.nysed.gov
Data, views or arguments may be submitted to:
Kenneth Slentz, Deputy Comm. P-12 Education, State Education Department, Office of P-12 Education, State Education Building, 89 Washington Ave., Albany, NY 12234, (518) 474-3862, email: NYSEDP12@mail.nysed.gov
Public comment will be received until:
45 days after publication of this notice.
Regulatory Impact Statement
STATUTORY AUTHORITY:
Education Law section 101 continues the existence of the State Education Department, with the Board of Regents at its head and the Commissioner of Education as the chief administrative officer, and charges the Department with the general management and supervision of public schools and educational work of the State.
Section 207 of the Education Law grants general rule-making authority to the Board of Regents to carry into effect the laws and policies of the State relating to education.
Subdivision (1) of section 305 of the Education Law empowers the Commissioner of Education to be the chief executive officer of the state system of education and of the Board of Regents and authorizes the Commissioner to enforce laws relating to the educational system and to execute educational policies determined by the Regents.
Education Law section 4403 outlines the Department's and a school district's responsibilities regarding special education programs/ and services to students with disabilities. Section 4403(3) authorizes the Department to adopt regulations as Commissioner deems in their best interests.
Education Law section 4404 establishes appeal procedures for students with disabilities. Subdivision (1) requires the Commissioner to promulgate regulations relating to the qualifications, procedures and timelines for impartial hearings, as well as relating to the suspension and revocation of impartial hearing officer certifications.
LEGISLATIVE OBJECTIVES:
The proposed amendment is consistent with the authority conferred by the above statutes. The proposed rule amends the procedures for conducting a special education due process hearing so that the hearings will be conducted in an efficient and expeditious manner and expressly provides impartial hearing officers (IHOs) with the tools necessary to properly manage and conduct these hearings in such manner, in order to further promote compliance with the federal timeline requirements. More specifically, the proposed rule primarily addresses six procedural issues relating to impartial hearings, including (1) the certification and appointment of impartial hearing officers, (2) the consolidation of multiple due process requests for the same student, (3) the needs and purposes of prehearing conferences; (4) the withdrawal of requests for due process hearings, and potential prejudice on parties resulting from sucy withdrawal, and (5) the need to limit extensions to the timeline requirements for issuing an impartial hearing decision, and (6) the 45-day timeline requirement to render a decision,to align with the State's timeline requirements with the federal requirements.
In amending the procedures for conducing impartial hearings, the proposed amendment addresses various causes of delays which have been identified by the State Education Department over the past few years and addresses these issues in conformity with State Review Officer decisions, best practices, and findings made by the Department in investigating untimely decisions by hearing officers pursuant to its authority granted under section 200.21 of the Commissioner's regulations.
Among other things, the proposed amendment would establish procedures for the consolidation of multiple due process hearing requests filed for the same student; require and establish procedures for prehearing conferences; prohibit an IHO from soliciting extension requests or issuing extensions to an impartial hearing due to his or her own scheduling conflicts; prescribe additional considerations an IHO must consider in granting an extension; prohibit an IHO from granting an extension after the record close date; and require the IHO to set forth the facts relied upon for each extension granted; allow an IHO to grant not more than one 30-day extension for the purpose of settlement discussions between the parties; prohibit an IHO from reopening a decision that constitutes his or her final determination of the claims and from retaining jurisdiction over future disputes among the parties; and establish procedures for the withdrawal of a due process complaint, which would expressly authorize the IHO to dismiss a due process complaint with prejudice if the other party to the claim would be prejudiced by the withdrawal and would provide for the same IHO to be appointed if the party who withdrew subsequently files another due process complaint within one year from the withdrawal that is based on or includes the same or substantially similar claims as made in a prior complaint.
NEEDS AND BENEFITS:
Federal law and regulations require all impartial hearings to be adjudicated within the 45-day timeline, or a timeline that is properly extended by the IHO at the request of either party, or in the case of an expedited hearing, within the required timelines. In 2010, only 84.25 percent of impartial hearings were adjudicated within the timeline requirements. The proposed rule provides IHOs with more prescriptive authority to properly manage impartial hearing timelines. In addition, the proposed rule further ensures the impartiality of IHOs.
COSTS:
a. Costs to State government: None.
b. Costs to local governments: The proposed amendment does not impose any additional costs beyond those already imposed by federal and State statutes and regulations. It is anticipated that school districts will experience costs savings as a result of these hearings being conducted in a more efficient and expeditious manner.
c. Costs to regulated parties: None.
d. Costs to the State Education Department of implementation and continuing compliance: The proposed amendment does not impose any additional costs on the State Education Department beyond those already imposed in accordance with law and regulations. It is anticipated that this proposed rule will promote compliance with the timeline requirements, which will assist the Department in enforcing compliance with these requirements.
LOCAL GOVERNMENT MANDATES:
The proposed amendment does not impose any additional program, service, duty or responsibility upon local governments beyond those already imposed by federal and State statutes and regulations. Among other things, the proposed rule amends the procedures that must be followed by an IHO in accepting an appointment, conducting a hearing, and rendering a decision and providing the decision to the State Education Department. The proposed rule amends the procedures for conducting hearings to ensure they are held in an efficient and expeditious manner in compliance with the federal timeline requirements, and provides IHOs with the tools to properly manage and conduct these hearings in such a manner. The rule also aligns the State's timeline requirements for issuing an impartial hearing decision with the federal requirements.
PAPERWORK:
The proposed rule does not impose any additional paperwork requirements on local governments.
DUPLICATION:
The proposed amendment does not duplicate, overlap, or conflict with any other State or federal statute or regulation. The rule aligns the State's timeline requirements for issuing an impartial hearing decision with the federal requirements.
ALTERNATIVES:
There are no significant alternatives and none were considered. The proposed amendment responds to substantial delays in the issuance of impartial hearing decisions over the past few years. The rule addresses various causes for these delays identified by the State Education Department, investigations conducted by the State Education Department relating to untimely hearing decisions, review of State Review Officer decisions, comments by IHOs, and in consideration of best practices. The proposed amendment is consistent with these standards and State and federal laws and regulations.
FEDERAL STANDARDS:
34 C.F.R. sections 300.511 - 515 establish the federal requirements for the impartial due process hearing, hearing rights, hearing decisions, finality of the decision, appeal and impartial review and the timelines and convenience of impartial hearings. The proposed amendment is consistent with federal standards and aligns New York State's timeline to render the decision with the federal timeline. The proposed amendment also addresses actions required by the U.S. Department of Education to ensure the timely adjudication of impartial hearing decisions.
COMPLIANCE SCHEDULE:
It is anticipated that regulated parties will be able to achieve compliance with the proposed amendment by its effective date.
Regulatory Flexibility Analysis
Small Businesses:
The proposed rule amends the procedures for conducting a special education due process hearing so that the hearings will be conducted in an efficient and expeditious manner and expressly provides impartial hearing officers (IHOs) with the tools necessary to properly manage and conduct these hearings in such a manner, in order to further promote compliance with the federal timeline requirements.
The proposed amendment does not impose any adverse economic impact, reporting, recordkeeping or any other compliance requirements on small businesses. Because it is evident from the nature of the proposed amendment that it does not affect small businesses, no affirmative steps are needed to ascertain that fact and none were taken. Accordingly, a regulatory flexibility analysis for small businesses is not required and one has not been prepared.
Local Governments:
The proposed amendment primarily applies to independent impartial hearing officers certified by the State Education Department and does not impose any additional compliance requirements or costs on such governments.
1. COMPLIANCE REQUIREMENTS:
The proposed amendment does not impose any additional compliance requirements on local governments beyond those already required pursuant to federal and State statues and regulations. The proposed amendment relates to the procedures that must be followed by an IHO in accepting an appointment, conducting a hearing, rendering a decision, and providing the decision to the State Education Department. It is anticipated that school districts will experience cost-savings as a result of these impartial hearings being conducted in a more efficient and expeditious manner, in compliance with federal and State regulations.
2. PROFESSIONAL SERVICES:
The proposed amendment does not impose any additional professional service requirements on local governments.
3. COMPLIANCE COSTS:
The proposed amendment does not impose any additional costs on local governments. It is anticipated that school districts will experience cost-savings as a result of these impartial hearings being conducted in a more efficient and expeditious manner, in compliance with federal and State regulations.
4. ECONOMIC AND TECHNOLOGICAL FEASIBILITY:
The proposed amendment does not impose any new technological requirements or costs on local governments.
5. MINIMIZING ADVERSE IMPACT:
The proposed amendment is necessary to enforce compliance with the timeline requirements prescribed in federal regulations governing the conduct of special education due process hearings. Sections 300.511 - 300.515 of the Code of Federal Regulations establish the federal requirements for the impartial due process hearing, hearing rights, hearing decisions, finality of the decision, appeal and impartial review, and the timelines and convenience of impartial hearings. The proposed amendment is consistent with federal standards and aligns New York State's timeline requirements to issue a decision with federal requirements.
The proposed amendment is necessary to address significant delays in the issuance of impartial hearing decisions in order to ensure compliance with federal law. The proposed amendment was developed in review of State Review Officer decisions, investigations of untimely hearing decisions made by the State Education Department pursuant to its authority granted under section 200.21 of the Commissioner's regulations, and best practices. The amendment is consistent with these standards.
6. LOCAL GOVERNMENT PARTICIPATION:
Three public hearings will be conducted to obtain comment on the proposed rule. In addition, copies of the proposed amendment have been provided to District Superintendents with the request that they distribute them to school districts within their supervisory districts for review and comment.
Rural Area Flexibility Analysis
1. TYPES AND ESTIMATED NUMBERS OF RURAL AREAS:
The proposed amendment applies to impartial hearing officers (IHOs) who conduct special education impartial hearings where all public schools located in New York State where the district or a parent initiates a due process complaint, including those located in the 44 rural counties with less than 200,000 inhabitants and the 71 towns in urban counties with population density of 150 per square miles or less.
2. REPORTING, RECORDKEEPING AND OTHER COMPLIANCE REQUIREMENTS AND PROFESSIONAL SERVICES:
The proposed amendment does not impose any additional compliance requirements or professional services requirements on entities in rural areas.
The proposed rule would ensure that individuals certified by the Commissioner as IHOs are willing and available to accept appointment to conduct impartial hearings; establish procedures for consolidation and multiple due process hearing requests filed for the same student; require and establish procedures for prehearing conferences; prohibit an IHO from issuing a decision to enforce the terms of a settlement agreement or an order by an administrative officer; align the State's timeline for an IHO to render a decision consistent with the federal timelines; prohibit an IHO from soliciting extension requests or issuing extensions to an impartial hearing due to his or her own scheduling conflicts; amend the considerations that an IHO must make in granting a request for an extension; specify information that must be included in the hearing record; prohibit an IHO from reopening a decision that constitutes his or her final determination of the claims and from retaining jurisdiction over future disputes among the parties; establish the timeline by which two copies of the impartial hearing decision must be provided to the State Education Department; and establish procedures for the withdrawal of a due process complaint.
3. COSTS:
The proposed amendment does not impose any additional costs on entities in rural areas.
4. MINIMIZING ADVERSE IMPACT:
The proposed regulations were developed in review of other states impartial hearing regulations, State Review Officer decisions and complaints filed pursuant to section 200.21 of the Regulation of the Commissioner of Education. The amendments proposed are consistent with these standards. 34 C.F.R. sections 300.511 - 515 establish the federal requirements for the impartial due process hearing, hearing rights, hearing decisions, finality of the decision, appeal and impartial review and the timelines and convenience of impartial hearings. The proposed amendment is consistent with federal standards and aligns NYS timeline to render the decision, which is currently inconsistent with the federal timeline. The proposed amendment addresses actions required by the U.S. Department of Education to ensure the timely adjudication of impartial hearing decisions.
5. RURAL AREA PARTICIPATION:
Three public hearings will be conducted to obtain comment on the proposed rule. In addition, the proposed amendment was submitted for comment to the Department's Rural Education Advisory Committee, which includes representatives of school districts in rural areas.
Job Impact Statement
The proposed rule amends the procedures for conducting a special education due process hearing so that the hearings will be conducted in an efficient and expeditious manner and expressly provides impartial hearing officers (IHOs) with the tools necessary to properly manage and conduct these hearings in such manner, in order to further promote compliance with the federal timeline requirements. The proposed amendment will not have a substantial impact on jobs and employment opportunities. Because it is evident from the nature of the amendment that it will not affect job and employment opportunities, no affirmative steps were needed to ascertain that fact and none were taken. Accordingly, a job impact statement is not required, and one has not been prepared.
