Home » 2016 Issues » September 28, 2016 » EDU-04-16-00004-A Procedures for State-Level Review of Impartial Hearing Officer Determinations Regarding Services for Students with Disabilities
EDU-04-16-00004-A Procedures for State-Level Review of Impartial Hearing Officer Determinations Regarding Services for Students with Disabilities
9/28/16 N.Y. St. Reg. EDU-04-16-00004-A
NEW YORK STATE REGISTER
VOLUME XXXVIII, ISSUE 39
September 28, 2016
RULE MAKING ACTIVITIES
EDUCATION DEPARTMENT
NOTICE OF ADOPTION
I.D No. EDU-04-16-00004-A
Filing No. 857
Filing Date. Sept. 13, 2016
Effective Date. Jan. 01, 2017
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 action:
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.
Text or summary was published
in the January 27, 2016 issue of the Register, I.D. No. EDU-04-16-00004-P.
Final rule as compared with last published rule:
No changes.
Revised rule making(s) were previously published in the State Register on
June 29, 2016.
Text of 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
Initial Review of Rule
As a rule that requires a RFA, RAFA or JIS, this rule will be initially reviewed in the calendar year 2018, 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 Revised Rule Making in the State Register on June 29, 2016, the State Education Department received the following comments.
1. COMMENT:
One commenter objects to the revisions to section 279.(3), to replace the word "must" with the word "may" in the notice included with a request for review and further states that the language, "an answer to the request for review may be served upon the petitioner," is ambiguous because it could be read to indicate that service of an answer is not mandatory and that service within 5 business days is not mandatory.
DEPARTMENT RESPONSE:
The Department believes that revision of the proposed regulation is not necessary. As noted by the commenter, the purpose of the proposed language is to clarify that a respondent is not required to answer a request for review.
To the extent that a respondent may be confused as to whether service of an answer is mandatory, 8 NYCRR 279.5(a) provides that a party may answer a request for review "either by concurring in a statement of facts with petitioner or by service of an answer" and 8 NYCRR 279.5(e) provides that service of an answer "may be made by personal delivery, United States mail, or overnight delivery service upon the opposing party or such party's attorney”. Therefore, the Department believes that the existing regulation is clear that an answer is optional, but if an answer is submitted, it must be served in accordance with the procedures set forth in Part 279.
2. COMMENT:
One commenter believes the 5-day time limit for submitting an answer to a request for review or cross-appeal is too short.
DEPARTMENT RESPONSE:
The commenter's concerns were previously addressed in the Assessment of Public Comment to the Notice of Proposed Rule Making published in the State Register on June 29, 2016, as reflected below.
Because pleadings are filed by mail with the Office of State Review, and often are not filed until several days after they are served, it is not feasible to extend the time to answer as requested by some commenters and still maintain compliance with State and federal timelines. To the extent that a party may be unable to meet the timeline to answer, the regulations provide for the possibility of an extension of time to answer upon good cause shown. Finally, State Review Officers are required to conduct an independent review of the record and render an impartial decision thereon; accordingly, an answer to a request for review is expected to address only the specific issues raised in the request for review. It is expected that parties will have set forth their positions during the impartial hearing, such that it is unnecessary for those positions to be fully reiterated on appeal.
3. COMMENT:
One commenter suggests that, with respect to the record submitted on appeal, the regulations should specify that any briefs or memoranda of law submitted by the parties during the course of the hearing are included as a part of the hearing record.
DEPARTMENT RESPONSE:
The department has considered the commenter's suggestion and does not believe any changes are necessary. Briefs and memoranda of law are already included as a part of the hearing record pursuant to 8 NYCRR 200.5(j)(5)(vi)(b).
4. COMMENT:
One commenter requests an expansion of the scope of permissible appeals from interim determinations of impartial hearing officers who decline a request to recuse themselves from presiding over an impartial hearing.
DEPARTMENT RESPONSE:
The proposed regulation does not alter the scope of permissible appeals from interim determinations. Therefore, the Department believes that this comment is beyond the scope of the proposed amendment and that no further revisions are necessary.
Moreover, in civil practice and administrative law, interlocutory appeals are generally disfavored; however, the Department has made a limited exception for interlocutory appeals from pendency determinations in order to effectuate the stability that Congress intended the pendency provision to provide to disabled students. At this time, the Department does not find that further regulatory action is necessary to address the commenter's perception of an inordinate number of improper interim recusal decisions rendered by impartial hearing officers.
5. COMMENT:
One commenter requests clarification as to whether a party has the option of filing an appeal from an interim determination on pendency or waiting for a final determination of the impartial hearing officer before filing an appeal regarding the impartial hearing officer's determination on pendency.
DEPARTMENT RESPONSE:
The regulation states that appeals from interim determinations are not permitted, "with the exception of a pendency determination." The regulation goes on to state that in an appeal from a final determination, "a party may seek review of any interim ruling, decision or refusal to decide an issue." Therefore, the Department does not believe a regulatory revision is necessary.
6. COMMENT:
One commenter requests that State Review Officers be given explicit authority to grant an extension of time to file a request for review to allow parties to attempt to resolve their differences post-hearing decision.
DEPARTMENT RESPONSE:
The Department believes that negotiated resolutions often result in the best outcomes for parties and students with disabilities, and to that end the resolution period and settlement opportunities are potentially available during the impartial hearing process (8 NYCRR 200.5[j][1], [iii]) and again during the second tier administrative appeal process (8 NYCRR 279.10[e]). However, the Department also believes that permitting extensions prior to the filing of an appeal with the Office of State Review and an overreliance on the possibility of settlement can have negative consequences for students and school districts by causing delays in the administrative process, and ordering a remedy becomes more cumbersome when the administrative process is delayed by multiple rounds of settlement discussions that ultimately fail. On balance, the commenter's concern is not consistent with the overall objective of streamlining the administrative process. Therefore, the Department does not believe that revisions to the regulation are warranted.
7. COMMENT:
One commenter issued comments disagreeing with the Department’s reasoning in the Assessment of Public Comment to the Notice of Revised Rule Making published in the State Register on June 29, 2016. Specifically, the commenter disagrees with the Department’s response to Comment #11 and reiterates that the district should be required to send the parent a copy of an index to the record that is filed with the Office of State Review.
The commenter also disagrees with the Department’s response to Comment #14 and argues that it is at odds with the prohibition against incorporation by reference. The commenter further argues that some impartial hearing officers refuse to accept briefs and/or restrict the length of briefs they will consider and requests that the Department advise impartial hearing officers that submission of and length of briefs should be at the discretion of the parties. In addition, the commenter asserts that the analysis of the issues in a brief to an impartial hearing officer is inherently different than on appeal. On appeal, the focus is on how the impartial hearing officer erred.
DEPARTMENT RESPONSE:
Initially, the comment regarding the Department's response to Comment #11 is beyond the scope of the proposed amendments because the amendments did not modify the requirement that districts file the hearing record with the Office of State Review but only clarified the contents of the record required to be filed. See Department’s Response to Comment #11. In addition, while the Department encourages parties to make arrangements between themselves so that parents are made aware of the contents of the record filed with the Office of State Review, because parents should already be aware of the contents of the hearing record, the Department does not believe that any further revisions to the regulation are necessary.
With respect to the commenter's concern regarding the Department's response to Comment #14, the Department reiterates the prior response. See Department Response to Comment #14. In addition, while the commenter identifies the prohibition on incorporation by reference, parties are discouraged from providing a lengthy recitation of relevant facts supporting an assertion and are instead encouraged to move directly to the argument with citation to the underlying facts in the record, as State Review Officers are required to conduct an independent review of the factual record and render an impartial decision thereon. With respect to the commenter's concern that impartial hearing officers do not always permit the submission of memoranda of up to 30 pages in length and request that the Department direct impartial hearing officers that submission of post-hearing memoranda should be at the discretion of the parties, such circumstances may provide a basis for a granting of an extension of time to serve and file an answer and supporting memorandum of law and should be addressed on a case-by-case basis.
With respect to the commenter's concern that the focus of legal analysis on appeal is different from that during the impartial hearing, as previously mentioned the expansion of the requirement for service of a notice of intention to seek review to all parties ensures that parties are aware, no later than 25 days after the date of the impartial hearing officer's determination, that the opposing party is planning to appeal and the subject of that appeal, so that the party may begin preparing a responsive pleading and memoranda.
