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.
Substance of revised rule:
The State Education Department proposes to amend sections 200.1 and 200.5 of the Commissioner's Regulations. Since publication of a Notice of Proposed Rule Making in the State Register on February 1, 2012, the proposed rule has been substantially revised, as set forth in the Revised Regulatory Impact Statement submitted herewith. The following is a summary of the substantive provisions of the revised 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 an attorney in a due process complaint, or if he or she is an individual with special knowledge or training with respect to the problems of children with disabilities who has accompanied and advised a party from the same school district in a due process complaint.
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 January 1, 2013, 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 require that a request for a withdrawal made after the commencement of the hearing must be on notice to the IHO and would be presumed to be without prejudice, provided, however, that the impartial hearing officer may issue a written decision finding that the withdrawal is with prejudice upon review of the balancing of the equities.
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.
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.
Revised rule compared with proposed rule:
Substantial revisions were made in section 200.5(j)(3)(i), (ii), (5) and (6).
Text of revised 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:
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 February 1, 2012, the following substantial revisions were made to the proposed rule:
The proposed amendment to section 200.5(j)(3)(i)(c) was revised to define an individual who has provided direct special advocacy as an individual with special knowledge or training with respect to the problems of children with disabilities who has accompanied and advised a party from the same school district in a due process complaint within a two-year period.
The proposed amendment to section 200.5(j)(3)(ii)(a) was revised to add that the impartial hearing officer (IHO) must consider relevant factors as indicated in the regulations in determining whether to consolidate more than one due process complaint, and to remove subclauses (1) and (4), which were added in the original proposed amendment, and which had provided, respectively, that in determining whether to consolidate one or more separate requests for due process, the IHO must consider the similarity of the issues in the due process complaints and whether the parties had sought mediation with regard to a due process complaint notice.
Proposed section 200.5(j)(3)(xi) was revised to clarify that a prehearing conference may be scheduled only upon the commencement of the hearing and that the IHO has no authority to convene a pre-hearing conference prior to the date on which a hearing may be commenced in accordance with the applicable timeline requirements. Section 200.5(j)(3)(xi) was also revised to amend the proposed date by which IHOs are required to conduct pre-hearing conferences from on or after July 1, 2012 to on or after January 1, 2013.
The proposed amendment to section 200.5(j)(3)(xi)(b) was revised to clarify that although the final disclosure of evidence is required no later than five days prior to the commencement of the hearing, final disclosure of all witnesses is not required to be submitted at least five business days prior to the hearing. The IHO may establish an alternative deadline date for witnesses.
The proposed amendment to section 200.5(j)(3)(xi)(d) was revised to add that both parties must be given an opportunity to render objections to the prehearing order.
The proposed amendment to section 200.5(j)(3)(xi)(e) was revised to add that the notice to the parties of the pre-hearing order must be included in the hearing record.
The proposed amendment to section 200.5(j)(3)(xi)(f) was revised to add that nothing in this section shall authorize the IHO to conduct a prehearing conference prior to the conclusion of the resolution period pursuant to paragraph (2)(v)(b) of this subdivision.
The proposed amendment to section 200.5(j)(5) has been revised to add that, after a final decision has been rendered, the IHO must promptly return the record to the school district together with a certification of the materials included in the record.
The proposed amendment to section 200.5(j)(5)(ii) was revised to remove subsections (e) whether the reasons for the delay were foreseeable; and (f) whether granting the extension is likely to contribute to reaching a final decision within the revised timeline or is likely to cause additional extension requests, from the factors the IHO must fully consider when considering granting a request for an extension.
The proposed amendment to section 200.5(j)(5)(ii)(a) was revised to clarify that in considering whether to grant a request for an extension of the hearing, the IHO should consider whether the delay of the hearing would positively contribute to, or adversely affect, the child's educational interests or well-being.
The proposed amendment to section 200.5(j)(5)(iii) was revised to delete the provision authorizing an IHO to grant one 30-day extension for the purposes of settlement discussions between the parties.
The proposed amendment to section 200.5(j)(5) has been revised to add a new subparagraph (vi) to define the contents of the hearing record for purposes of such impartial hearing.
The proposed amendment to section 200.5(j)(6)(ii) was revised to require that a withdrawal shall be presumed to be without prejudice except that the IHO, upon review of the balancing of the equities, may issue a written decision that the withdrawal of a due process complaint shall be with prejudice.
The above revisions to the proposed rule require that the Local Government Mandates section of the previously published Regulatory Impact Statement be revised to read as follows:
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.
Revised Regulatory Flexibility Analysis and Rural Area Flexibility Analysis
Since publication of a Notice of Proposed Rule Making in the State Register on February 1, 2012, the proposed rule has been revised as set forth in the Revised Regulatory Impact Statement filed herewith.
The above revisions do not require any changes to the previously published Regulatory Flexibility Analysis and Rural Area Flexibility Analysis.
Revised Job Impact Statement
Since publication of a Notice of Proposed Rule Making in the State Register on February 1, 2012, the proposed rule has been revised as set forth in the Revised Regulatory Impact Statement filed herewith.
The proposed revised rule will not have an adverse impact on jobs or employment opportunities. Because it is evident from the nature of the proposed revised rule that it will have a positive impact, or no impact, on jobs or employment opportunities, no further steps were needed to ascertain those facts and none were taken. Accordingly, a job impact statement is not required and one has not been prepared.
Assessment of Public Comment
The following is a summary assessing the public comment received by the State Education Department since publication of a Notice of Proposed Rule Making in the State Register on February 1, 2012.
COMMENTS: Rule is reasonable and helps to ensure impartiality; will remove individuals who might find IHO credential helpful, but who have no real interest in actually serving; will reduce time devoted to appointment of IHOs by eliminating those who currently remain on the list and have to be canvassed regardless of availability; and will discourage continued unwillingness to accept an appointment without good cause. Other comments expressed concern over how determinations would be made as to whether an IHO has been unwilling or unavailable to accept appointments within a two year period, and stated that IHOs should be allowed to take a leave of absence.
DEPARTMENT RESPONSE: Such determinations would be made on a case-by-case basis and would include the reasons for an IHO's leave of absence and number of appointments offered to the IHO during the two-year period.
2. IHO Acceptance of Appointments - section 200.5(j)(3)(i)
COMMENTS: Rule will eliminate conflicts of interest and foster impartiality, increase efficiency of the hearing process, and eliminate IHO from needing to decide his/her recusal. Other comments recommended revising rule to prohibit individuals from serving as IHOs when they have represented parents in the State, or who are members of firms or organizations that represented the school district, during the prior two years; and providing a definition of "direct special education advocacy."
DEPARMENT RESPONSE: It would be inappropriate to further restrict IHO appointment based on his/her history of representing parents; and that as attorney, many IHOs have other employment responsibilities and the purpose of the rule is only to further ensure that IHO does not have a professional conflict of interest with the school district in which he/she presides as IHO.
3. Consolidation and multiple due process hearing requests - section 200.5(j)(3)(ii)
COMMENTS: Consolidation will result in improved efficiency, save time and expense, result in determinations in best interests of children, eliminate forum shopping, avoid duplication of attorney fees and professional time. Other comments recommended deleting detailed considerations from rule and disseminating them in guidance, prohibiting consolidations if subsequent due process complaint filed with five days of commencement of hearing, unless upon written consent, and requested clarification of specific procedures and factors.
DEPARTMENT RESPONSE: Revised amendment retains the considerations, but clarifies consolidation is at the discretion of IHO, who must consider only those factors relevant to consolidation and use the consideration in justifying his/her decision whether to consolidate; and deletes the factors relating to similarity of issues and whether parties have sought mediation; and that prohibiting consolidations of complaints filed within five days of hearing may not be in the interests of judicial economy and further the student's educational interests.
4. Pre-hearing Conferences - 200.5(j)(3)(xi)
COMMENTS: Rule allows IHO to focus on and research pertinent issues, facilitate efficient and expeditious decisions, and assure factual issues in question are commonly understood prior to hearing. Other comments stated rule could impose burden on pro se parents and increase costs, create delays in scheduling hearings, take away opportunity for early informal resolution, shift burden of proof and require parties to narrow or exclude issues before all evidence is presented, and violates due process by requiring IHO to proceed with conference even if a party cannot attend.
DEPARTMENT RESPONSE: Rule is necessary to ensure that IHO effectively and efficiently manage hearings and issues decisions; that the rule authorizes IHO to assist unrepresented party at all stages of impartial hearing, including pre-hearing conference; that rule is expected to result in fewer hearing sessions and more timely decisions, thereby reducing costs. The rule has been revised to state IHO is not authorized to conduct a pre-hearing conference prior to conclusion of the resolution period; to separate the pre-hearing order requirement for the list of expected hearing witnesses from the requirement that the deadline data for final disclosure of all evidence intended to be offered at the hearing, which must be no later than at least five business days prior to the first scheduled hearing date; to add that if a party does not participate in pre-hearing conference, IHO may proceed and issue pre-hearing order, provided both parties given opportunity to object.
COMMENTS: Matters not before IHO should not be included in a settlement; if both parties agree, IHO should have discretion to so-order settlement agreement on matters not before IHO in due process complaint; IHO should have discretion to review proposed settlement and opine on its benefits to parties; no mandate relief from limiting range of settlement orders that may be so-ordered.
DEPARTMENT RESPONSE: Rule is not intended to limit settlement agreements to only those issues before IHO, but rather to limit IHO authority to so-order settlement agreement on any issues not before IHO in a complaint. The rule clarifies that while an IHO may order a settlement agreement, he/she is limited in authority under IDEA to do so only for issues raised in complaint or amended complaint notice.
6. Timeline to Render a Decision - section 200.5(j)(5)
COMMENTS: Rule guarantees adhered-to timeline; promotes timely resolution of complaints; and discourages extension of timelines over objection of other party. Other comments stated rule will cause more cases to be out of compliance, further complicate regulations, impose additional unnecessary burdens on parties and IHOs; be hard to implement, and violate parties' rights under IDEA; parties should have to go to a resolution meeting when district files a due process complaint.
DEPARTMENT RESPONSE: Rule does not provide further restrictions or burdens than is required by federal law and regulations and does not violate parties' rights or the IHO's ability to make decisions on a case-by-case basis. Federal law does not require a resolution session when school files a complaint.
7. Submission of IHO Decisions - section 200.5(j)(5)
COMMENTS: Rule allows Department to be better aware of IHO cases and decision and will maintain greater confidentiality for all parties. Other comments stated current redaction guidelines run counter to State's Freedom of Information Law; the Department should follow-up when necessary upon its review; redaction requirements are unduly complicated, burdensome, unnecessary and interfere with purpose of disclosure; IHOs should be paid for redaction; narrower redaction standards should be developed; rule will increase costs by requiring IHOs to spend additional time redacting personally identifiable information from their decisions; State should assume additional expenses.
DEPARTMENT RESPONSE: Requirement that IHO submit a redacted copy of his/her decision to State is a long-standing requirement based on federal regulations, and the cost of which is therefore properly placed on schools.
8. Extensions to Due Date for Rendering Impartial Hearing Decision - section 200.5(j)(5)(i)-(iv)
COMMENTS: Rule will promote quick resolution to conflicts; make it less likely extensions will be granted for wrong reasons; and likely increase adjudication rates within required timelines. Other comments stated timeline is sufficient and extensions should not be granted; the Department should not micromanage impartial hearings; the rule encroaches on rights of parties to seek extensions and discretion of IHOs to grant extensions and by treating federal statute as a ceiling, not a floor, violates precept that State may not foreclose IDEA rights; additional timeline extension limits serve no reasonable purpose and ignores practical considerations; rule impinges on public policy by limiting extensions to permit settlement negotiations; on districts' capacity to present essential witnesses, and on districts' and parents' capacity to be represented by counsel of their choosing; amend the regulations to allow for extensions based on availability of parties, their attorneys and the various witnesses to make certain parties can fully present their case.
DEPARTMENT RESPONSE: State must have procedures in place in regulations to ensure that extensions are properly granted and to responsibly oversee the federally-required timelines; and that nothing in the rule discourages settlement negotiations or limits the parties' continued settlement discussions during the hearing process. Upon further reflection by Department staff, section 200.5(j)(5)(ii)(a) was revised to clarify that in considering whether to grant a request for an extension of the hearing, the IHO should consider whether the delay of the hearing would positively contribute to, or adversely affect, the child's educational interests or well-being. Such section had originally required the IHO to consider the overall impact of the delay on the child's educational interests and well-being. The revisions are necessary to clarify that the IHO should continue to consider whether the delay would result in an adverse impact on the child, as well as whether the delay would positively contribute to the child's educational interests, such as awaiting a determination of custodial matters in a pending divorce proceeding or foster care placement, which would clarify the identity of the individual acting as the parent or guardian with the educational decision-making authority. Furthermore, because the proposed amendment that would authorize the IHO to approved one 30-day extension for settlement discussions was read to limit the IHO's discretion to grant or not grant a party's extension based on a full consideration of the cumulative impact that the requested extension would have on the child's educational interest or well-being which may be occasioned by the delay, the need of a party for additional time to prepare or present the party's position at the hearing, any financial or other detrimental consequences likely to be suffered by a party in the event of delay and whether there has already been a delay in the proceeding, it has been deleted in the revised proposed amendment.
9. Withdrawals of Requests for Due Process Hearings - Section 200.5(j)(3)
COMMENTS: Rule is appropriate as it will reduce costs and decrease inefficiencies in current process; and reduce incentive to forum shopping through withdrawal and re-filing of due process complaints. Other comments stated the proposed amendment to section 200.5(j)(6)(iv) contains a typographical error in that it fails to state that the original hearing officer would be appointed to hear the re-filed due process complaint; the rule is unclear, there is a need for more discussion; a parent should have an unrestricted right of withdrawals; the rule goes substantially further than the IDEA permits or res judicata doctrine would allow; automatic determination of when prejudice attaches should not occur; restricting parent's ability to withdraw without prejudice after the pre-hearing conference may force parties into unnecessary hearings and increase litigation costs; parties will have very little time after a hearing request has been filed before they need to seek IHO permission to withdraw without prejudice; giving IHOs authority to dismiss claims with prejudice creates disincentives for settlement negotiations; claims should not be precluded in future proceedings when they are withdrawn prior to adjudication on the merits.
DEPARTMENT RESPONSE: The rule has been revised to indicate that a party's withdrawal is presumed to be without prejudice except that the IHO, upon review of the balancing of the equities, may issue a written decision that the withdrawal shall be with prejudice. The rule has been revised to clarify that original IHO will hear the refilled due process complaint. Timeline for commencing the hearing or pre-hearing conference is stipulated in 8 NYCRR § 200.5(j)(3)(iii).
