Home » 2016 Issues » June 29, 2016 » EDU-04-16-00004-RP Procedures for State-Level Review of Impartial Hearing Officer Determinations Regarding Services for Students with Disabilities
EDU-04-16-00004-RP Procedures for State-Level Review of Impartial Hearing Officer Determinations Regarding Services for Students with Disabilities
6/29/16 N.Y. St. Reg. EDU-04-16-00004-RP
NEW YORK STATE REGISTER
VOLUME XXXVIII, ISSUE 26
June 29, 2016
RULE MAKING ACTIVITIES
EDUCATION DEPARTMENT
REVISED RULE MAKING
NO HEARING(S) SCHEDULED
I.D No. EDU-04-16-00004-RP
Procedures for State-Level Review of Impartial Hearing Officer Determinations Regarding Services for Students with Disabilities
PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following revised rule:
Procedures for State-level review of impartial hearing officer determinations regarding services for students with disabilities.
Purpose:
To revise the procedures for appealing impartial hearing officer decisions to a State review officer.
Substance of revised rule:
The State Education Department proposes to amend Part 279 of the Regulations of the Commissioner of Education, effective January 1, 2017. The following is a summary of the substantive provisions of the proposed rule.
Sections 279.1, 279.2, and 279.10 are amended to remove cross-references to Parts 275 and 276 of the Regulations of the Commissioner.
Section 279.1 is amended to clarify the scope of a State Review Officer's jurisdiction and define the Office of State Review.
Section 279.2 is amended to clarify that a party seeking review of an impartial hearing officer's decision must personally serve a notice of intention to seek review and request for review upon the opposing party; that a school district must file a certified copy of the hearing record with the Office of State Review; defines the parties as petitioner and respondent; adds a requirement that a respondent who intends to cross-appeal file a notice of intention to do so; requires parties to serve a statement of those issues the party seeks to have reviewed along with the notice of intention; and permits a State Review Officer to review a determination despite a party's failure to timely serve a notice of intention to seek review.
Section 279.3 is amended to modify the notice that must be served with a request for review.
Section 279.4 is amended to modify the timelines for serving the request for review; clarifies the requirements for personal service and specifies the permissible scope of alternate service; and clarifies that a memorandum of law must be served and filed together with the request for review.
Section 279.5 is amended to modify the time in which an answer to a petition or a cross-appeal must be served; provide that a notice of intention to cross-appeal must be filed with the Office of State Review along with an answer with cross-appeal; and clarifies that a memorandum of law must be served and filed together with an answer or answer with cross-appeal.
Section 279.6 is amended to clarify the permissible scope of a reply and the acceptable methods of service; and to specify that a State Review Officer may require the parties to clarify pleadings or submit further briefing of issues on request.
Section 279.7 is amended to clarify that all papers submitted to a State Review Officer in connection with an appeal must be endorsed with the name, mailing address, and telephone number of the party submitting the papers, or the party's attorney if represented by counsel; provides a form affidavit for verification of pleadings; and clarifies that oaths may be taken before any person authorized by any state to administer oaths.
Section 279.8 is amended to clarify that pleadings must be signed by an attorney or by a party if the party is not represented by counsel; modify the permissible lengths of pleadings and memoranda of law; clarify the proper form of pleadings and clarify that issues not properly identified will not be addressed; and clarify the proper scope of a memorandum of law.
Section 279.9 is amended to clarify the contents of the hearing record, including the contents of the hearing record in an appeal from an impartial hearing officer's interim determination on pendency; and provide that a State Review Officer has the discretion to impose penalties for the failure of a board of education to file a complete and certified hearing record within the necessary timelines.
Section 279.10 is amended to clarify that a State Review Officer may remand a matter to an impartial hearing officer to take additional evidence or make additional findings and clarify procedures relating to extensions of time to answer, cross-appeal, or reply.
Section 279.11 is amended to clarify the procedures relating to computation of days within which service of pleadings must be made.
Section 279.12 is amended to clarify that the finality of a State Review Officer's decision does not preclude the Office of State Review from correcting typographical or clerical errors, which do not result in a change to the factual or legal basis of the State Review Officer's decision.
Revised rule compared with proposed rule:
Substantial revisions were made in sections 279.1, 279.2, 279.4, 279.5 and 279.8.
Text of revised proposed rule and any required statements and analyses may be obtained from
Kirti Goswami, State Education Department, Office of Counsel, State Education Building, Room 148, 89 Washington Avenue, Albany, NY 12234, (518) 474-6400, email: legal@nysed.gov
Data, views or arguments may be submitted to:
Justyn P. Bates, State Review Officer, State Education Department, Office of State Review, 80 Wolf Road Suite 203, Albany, NY 12205, (518) 485-9373, email: osrcomment@nysed.gov
Public comment will be received until:
30 days after publication of this notice.
Revised Regulatory Impact Statement
Since publication of a Notice of Proposed Rule Making in the State Register on January 27, 2016, the following substantial revisions were made to the proposed amendments:
Sections 279.1(a) and (b) and 279.2(a) and (d) are revised to clarify that the scope of review of the decision of an impartial hearing officer by a State Review Officer (“SRO”) includes the provision of a free appropriate public education to a student.
The proposed amendment to section 279.1(d) which requires parties to challenge the impartiality of the SRO in a pleading is withdrawn.
Section 279.4(c) is revised to withdraw the option to effectuate service by placing the request for review in an opaque wrapper addressed to the parent and marked “Confidential,” affixing the same to the door of the parent's residence, and mailing a copy of the request for review by certified mail to the parent's last known residence.
Section 279.5(b) is revised to provide that an answer to a cross-appeal may be served within 5 business days, rather than calendar days, after service of a cross-appeal.
The proposed amendment to section 279.8(e), requiring that electronic copies of pleadings and the memorandum of law to be filed with the Office of State Review together with the pleadings is withdrawn.
The proposed amendment to section 279.8(f), which states that the filing of pleadings and the memorandum of law is complete upon receipt by Office of State Review is withdrawn.
These revisions require that the Needs and Benefits section of the previously published Regulatory Impact Statement be revised to read as follows:
NEEDS AND BENEFITS:
The proposed amendment is needed to correct citations and references, provide clarification of the procedures concerning appeals of impartial hearing officer decisions to a State Review Officer, and to expedite and otherwise facilitate the processing of requests for review to State Review Officers.
The revisions to sections 279.1, 279.2, and 279.10 remove cross-references to Parts 275 and 276 of the Regulations of the Commissioner, to make it easier for unrepresented parties to access the appeal process.
The revisions to section 279.1 clarify the scope of a State Review Officer's jurisdiction and define the Office of State Review.
The revisions to section 279.2 require that any party seeking review of an impartial hearing officer's decision must personally serve a notice of intention to seek review or cross-appeal on the opposing party and requires parties to serve a statement of those issues the party seeks to have reviewed along with the notice of intention. This modification will provide notice to the opposing party regarding which of the impartial hearing officer's determinations will be appealed. The revision also codifies State Review Officer precedent permitting review of an impartial hearing officer's determination despite a party's failure to timely serve a notice of intention.
The revisions to section 279.3 modify the notice that must be served with a request for review to comply with the proposed amendments.
The revisions to section 279.4 set a single timeline for serving a request for review on the opposing party, simplifying the appeal process. The revisions also clarify the requirements for personal service and the permissible scope of alternate service, alleviating confusion and reducing the need for State Review Officers to issue ad hoc determinations. Finally, the revisions clarify that a memorandum of law must be served and filed together with the request for review. This will alleviate confusion from the current wording of the regulations, which some parties took to mean to permit them to file a memorandum of law at any time during the appeal process.
The revisions to section 279.5 reduce the time in which an answer to a petition or a cross-appeal must be served, facilitating the ability of State Review Officers to comply with federally-mandated decision timelines. In conjunction with section 279.2, requiring that any party seeking review must file a notice of intention to do so prevents any possible prejudice to parents of students with disabilities. The revisions also clarify that a memorandum of law must be served and filed together with an answer or answer with cross-appeal.
The revisions to section 279.6 clarify the permissible scope of a reply, alleviating the submission of and need to address pleadings outside the intended purpose of a reply. The clarification that a State Review Officer may require the parties to clarify pleadings or submit further briefing of issues on request will permit the State Review Officer to effectuate his or her authority to ensure adequate argument on which to decide all issues raised by the parties.
The revisions to section 279.7 provide a necessary clarification now that Part 279 no longer explicitly cross-references Parts 275 and 276 or the regulations of the Commissioner.
The revisions to section 279.8 clarify requirements regarding the form and scope of pleadings and memoranda of law. These modifications will facilitate the timely review of impartial hearing officer decisions by State Review Officers, by requiring parties to more clearly state their arguments on appeal.
The revisions to section 279.9 clarify the contents of the hearing record and vest State Review Officers with the discretion to impose sanctions for the failure of a board of education to file a complete and certified hearing record within the necessary timelines. These revisions are necessary to address the failure of boards of education to consistently timely file complete and accurate hearing records, significantly infringing on the ability of State Review Officers to timely issue decisions in compliance with State and federal law.
The revisions to section 279.10 clarify that a State Review Officer may remand a matter to an impartial hearing officer and clarify procedures relating to extensions of time. These revisions are necessary to clarify the scope of a State Review Officer's authority to ensure that the parties and impartial hearing officer comply with State and federal requirements.
The revisions to section 279.11 clarify the computation of days within which service of pleadings must be made.
The revisions to section 279.12 clarify that the Office of State Review may correct typographical or clerical errors not affecting the factual or legal basis of a State Review Officer's decision.
Revised Regulatory Flexibility Analysis
Since publication of a Notice of Proposed Rule Making in the State Register on January 27, 2016, the proposed rule was revised as set forth in the Statement Concerning the Regulatory Impact Statement submitted herewith.
The purpose of the revised proposed amendment relates to appeal procedures for State-level review of determinations of impartial hearing officers in hearings relating to the provision of special education to student with disabilities by school districts. The above revisions to the proposed rule do not require any revisions to the previously published Regulatory Flexibility Analysis.
Revised Rural Area Flexibility Analysis
Since publication of a Notice of Proposed Rule Making in the State Register on January 27, 2016, the proposed rule was revised as set forth in the Statement Concerning the Regulatory Impact Statement submitted herewith.
The purpose of the revised proposed amendment relates to appeal procedures for State-level review of determinations of impartial hearing officers in hearings relating to the provision of special education to student with disabilities by school districts. The above revisions to the proposed rule do not require any revisions to the previously published Rural Area Flexibility Analysis.
Revised Job Impact Statement
Since publication of a Notice of Proposed Rule Making in the State Register on January 27, 2016, the proposed rule was revised as set forth in the Statement Concerning the Regulatory Impact Statement submitted herewith.
The revised proposed amendment relates to appeal procedures for State-level review of determinations of impartial hearing officers in hearings relating to the provision of special education to student with disabilities by school districts and will not have a substantial adverse impact on jobs and employment opportunities. Because it is evident from the nature of the revised proposed rule 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.
Assessment of Public Comment
Since publication of a Notice of Proposed Rule Making in the State Register on January 27, 2015, the State Education Department (SED) received a number of comments. A summary of the comments and the Department's responses follows. The full text may be found on the Office of State Review's (OSR's) website (www.sro.nysed.gov).
1. COMMENT:
A commenter objects to the proposed regulation requiring parties to challenge the impartiality of a State Review Officer (SRO) in their pleadings, stating that there is no way for a party to know which SRO is assigned to the appeal.
DEPARTMENT RESPONSE:
The Department agrees and the proposed change has been withdrawn.
2. COMMENT:
Several commenters object to the proposed amendment regarding the scope of review of impartial hearing officer (IHO) determinations by SROs.
DEPARTMENT RESPONSE:
The proposed amendment has been revised to align the language used in Part 279 with that used in the Education Law and Part 200 (Educ. Law § 4404[1][a]; 8 NYCRR 200.5[i]).
3. COMMENT:
One commenter objects to the proposed regulation extending the requirement to serve a notice of intention to seek review to school districts. Two commenters support the proposed regulation.
DEPARTMENT RESPONSE:
The proposed requirement is intended to ensure that parents are given advance notice of a school district's challenge to an IHO's determination. The notice of intention to seek review places little additional burden on a school district. Therefore, the Department does not believe a change is warranted.
4. COMMENT:
Several comments object to the requirement that parties file a notice of intention to cross-appeal.
DEPARTMENT RESPONSE:
No change is necessary because of the interest of ensuring that parties are aware of the intention of the opposing party to cross-appeal.
5. COMMENT:
One commenter requests that the notice of intention to seek review or cross-appeal include a binding statement of the issues being appealed.
DEPARTMENT RESPONSE:
One purpose of the notice of intention is to permit parties to begin to consider responsive pleadings; however, it would be inappropriate to preclude parties from modifying their positions prior to the submission of pleadings.
6. COMMENT:
Several commenters believe the proposed regulation providing SROs with discretion to excuse the failure to timely serve a notice of intention to seek review or cross-appeal gives SROs the ability to review IHO decisions without either party seeking review.
DEPARTMENT RESPONSE:
No changes to the proposed regulation are required because initiation of review of an IHO decision is made by personal service and filing of a notice of request for review and a request for review, not by a notice of intention to seek review (8 NYCRR 279.4[a]). The proposed regulation does not provide SROs with the authority to review IHO decisions without a request for review.
7. COMMENT:
Several commenters object to the proposed change requiring parties to serve a case information statement with a notice of intention to seek review or cross-appeal.
DEPARTMENT RESPONSE:
The Department has carefully considered the commenters' suggestion and believes no change is necessary. The proposed case information statement provides parties with notice of topics that may be raised in the pleadings but does not preclude parties from raising additional claims. The case information statement will be akin to a simplified version of request for judicial intervention forms used in state courts and draft samples have been posted on OSR's website (www.sro.nysed.gov).
8. COMMENT:
One commenter suggests that the proposed language regarding the filing of specific documents with hearing records imposes a burden on school districts.
DEPARTMENT RESPONSE:
No change is necessary. The proposed regulation conforms the language in Part 279 with requirements set forth in 8 NYCRR 200.5(j)(5)(vi). As the specified documents are already a part of the record, the proposed amendment does not impose any additional burden on school districts.
9. COMMENT:
One commenter suggests adding 10 days to file the hearing record when a party appeals from the decision of an IHO and requests that OSR implement practices to encourage timely submission of records.
DEPARTMENT RESPONSE:
This suggestion would unduly limit an SRO's ability to timely review the record. A district has 10 days from receipt of a parent's notice to file the complete, certified hearing record with OSR. The record components are available to the district, as it is a party to the due process proceeding. If a board of education believes rare circumstances are preventing it from timely submitting a record, the board may seek assistance from the office of SED responsible for oversight of IHOs.
10. COMMENT:
Some commenters object to the proposed regulation clarifying the authority of an SRO to take specific actions when a district fails to file a hearing record.
DEPARTMENT RESPONSE:
Upon receipt of a notice of intention to seek review, a district has 10 days to file the complete record with OSR. Therefore, a district has notice of its obligation to file the record as a part of the review process. Moreover, if a board of education believes rare circumstances are preventing it from timely submitting a record, the board may seek assistance from the office of SED responsible for the oversight of IHOs. Therefore, the Department does not believe a regulatory change is needed.
11. COMMENT:
Some commenters suggest that because the regulations require districts to provide OSR with a copy of the hearing record, the regulations should also require the district to provide parents with a copy of the record.
DEPARTMENT RESPONSE:
No change is necessary. OSR requires a full and complete copy of the hearing record in order to render a decision. Parents are entitled to a copy of the record pursuant to other regulations (34 CFR 300.512[a][4]; 8 NYCRR 200.5[j][3][v]) and a requirement for another copy is unnecessary and unduly burdensome.
12. COMMENT:
Two commenters object to the requirement that districts effectuate personal service on parents.
DEPARTMENT RESPONSE:
No change is warranted. Personal service achieves the important purpose of ensuring that the opposing party has notice of the proceeding and an opportunity to respond. Nothing precludes parties from agreeing to waive personal service, and alternate methods of service are permitted if personal delivery cannot be made after diligent attempts.
13. COMMENT:
One commenter objected to the alternate service provision permitting service by affixing the request for review to the door of the parent's residence.
DEPARTMENT RESPONSE:
The proposed regulation providing for an affix-and-mail service option is withdrawn. The Department agrees that it may be insufficiently protective of the confidentiality rights of students with disabilities to permit affix-and-mail service on an unmonitored basis.
14. COMMENT:
Regarding length of pleadings, some commenters suggest that the 10-page limitation will prejudice parties. One commenter supports the proposed changes.
DEPARTMENT RESPONSE:
After consideration of the comments, the Department does not believe that regulatory changes are needed. While the length of a request for review or answer has been shortened, the length of the memorandum of law has been increased, and the total length of permitted submissions is the same.
15. COMMENT:
Some commenters oppose and one commenter supports the proposed regulation eliminating the requirement that pleadings set forth allegations in numbered paragraphs.
DEPARTMENT RESPONSE:
The proposed regulation requires that pleadings include “a clear and concise statement of the issues presented for review and the grounds for reversal or modification to be advanced, with each issue numbered and set forth separately,” which follows the requirement that a petition specify the reasons for challenging the IHO's decision and identify the findings, conclusions, and orders to which exceptions are taken. Therefore, the Department does not believe that any regulatory changes are needed.
16. COMMENT:
Some commenters oppose the proposed regulation requiring the filing of electronic copies of pleadings.
DEPARTMENT RESPONSE:
The Department has determined that further study of this issue is needed, and the proposed regulatory change has been withdrawn at this time.
17. COMMENT:
Regarding the requirement for verification of pleadings, two commenters state that the requirement is burdensome on parents.
DEPARTMENT RESPONSE:
The proposed regulation makes technical changes to the language of the current regulation requiring the verification of all pleadings and does not impose any new requirements. Therefore, no regulatory changes are needed. OSR has not received any requests that the requirement be waived on the basis of hardship.
18. COMMENT:
A number of commenters state that it is not reasonable for the proposed change to provide 5 business days to serve an answer.
DEPARTMENT RESPONSE:
New York is the most permissive state operating a two-tier IDEA administrative hearing system in allowing answers as of right. As a decision must be rendered within 30 days of receipt of a request for review, timelines for filing pleadings are necessarily limited. In order to balance the limited time to answer with the need of respondents to mount a defense, service of a notice of intention to seek review has been extended to all parties so that respondents will be aware of a petitioner's intention to appeal within 25 days after the date of the IHO's decision, the length of memoranda has been extended to comport with the length of post-hearing briefs to diminish the amount of revisions needed to adapt arguments on appeal, and parties may request extensions of time to answer.
19. COMMENT:
Several commenters assert that the proposal to require parties to serve an answer to a cross-appeal within 5 days could lead to confusion.
DEPARTMENT RESPONSE:
The Department agrees, and has revised the proposed amendment to provide 5 business days to answer a cross-appeal.
20. COMMENT:
Several commenters objected to the time provided to reply to an answer.
DEPARTMENT RESPONSE:
The timeline in which a reply must be served is not modified by the proposed amendments.
21. COMMENT:
Two commenters support the proposed regulation permitting a reply to address claims raised by an answer or cross-appeal that were not addressed in the request for review.
DEPARTMENT RESPONSE:
Because the comment is supportive in nature, no response is required.
22. COMMENT:
A commenter states that clarification of the manner in which parties may submit additional evidence and the standard that will be applied in determining whether to accept such evidence is necessary.
DEPARTMENT RESPONSE:
The proposed regulation does not provide parties with a right to submit additional evidence, but, in line with federal regulations, authorizes an SRO to seek additional evidence if necessary to render a decision. The manner in which additional evidence is sought or accepted is in the discretion of the SRO. No change is required.
23. COMMENT:
Some commenters object to the provisions in the proposed regulation requiring that extension requests be postmarked no later than one business day prior to the date on which the time to answer or reply will expire, because a party may not receive a response until the deadline passes.
DEPARTMENT RESPONSE:
No change is required. The proposed regulation does not change the requirement that requests for extensions be postmarked but requires that the request be submitted one day before the deadline expires. Parties concerned that they may not receive a response in time should contact OSR before the deadline expires.
24. COMMENT:
One commenter supports the proposed regulation identifying settlement negotiations as good cause for a request for an extension.
DEPARTMENT RESPONSE:
Because the comment is supportive in nature, no response is required.
25. COMMENT:
Some commenters object to the proposed regulation requiring that the filing of a pleading is complete when received by OSR because it does not provide sufficient time for filing.
DEPARTMENT RESPONSE:
The proposed change has been withdrawn.
26. COMMENT:
One commenter objected to the proposed change from “petition” to “request for review.”
DEPARTMENT RESPONSE:
The language “request for review” in the proposed amendment is intended to conform to the terminology used in both State and federal regulations.
27. COMMENT:
One commenter suggested that the proposal to designate periods of time “after” the date of an IHO's determination, rather than “from” the date of the decision, was unclear.
DEPARTMENT RESPONSE:
The use of the word “after” was intentional; computation of days excludes the day on which an event occurs.
