THE STATE EDUCATION DEPARTMENT / THE UNIVERSITY OF THE STATE OF NEW YORK / ALBANY, NY 12234

 

TO:	The Honorable the Members of the Board of Regents
FROM:	Rebecca H. Cort
COMMITTEE:	EMSC-VESID
TITLE OF ITEM:	Impartial hearings for students with disabilities
DATE OF SUBMISSION:	February 5, 2004
PROPOSED HANDLING:	Approval
RATIONALE FOR ITEM:	To ensure timely impartial hearings as required by Federal Regulations
STRATEGIC GOAL:	4
AUTHORIZATION(S):

 

SUMMARY:

 

Attached are a Supplemental Assessment of Public Comment and revised terms regarding the proposed amendment of section 200.5(i) of the Regulations of the Commissioner of Education.  

 

The Supplemental Assessment addresses additional public comment received in response to the Notice of Revised Rule Making that was published in the State Register on December 31, 2003.  In response to the public comment, a nonsubstantial revision was made to subparagraph (vii) of section 200.5(i)(3) to clarify that nothing contained in the subparagraph shall be construed to impair or limit the authority of an impartial hearing officer to ask questions of counsel or witnesses for the purpose of clarification or completeness of the record.

 

Please substitute the revised terms for the terms previously provided to you.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

AMENDMENT TO THE REGULATIONS OF THE COMMISSIONER OF EDUCATION

                        Pursuant to sections 101, 207, 305, 4402, 4403 and 4404 of the Education Law.

                        1.  Paragraph (3) of subdivision (i) of section 200.5 of the Regulations of the Commissioner is amended, effective May 1, 2004, as follows:

                        (3)  The board of education shall arrange for such a hearing to be conducted in accordance with the following rules:

                        (i)  Appointment from the impartial hearing officer list must be made in accordance with the rotational selection process established in section 200.2(e)(1) of this Part and the administrative procedures established by the board of education pursuant to section 200.2(b)(9) of this Part.

                        (a)  The rotational selection process must be initiated immediately, but not later than two business days after receipt by the school district of the written request for the hearing.

                        (b)  The impartial hearing officer may not accept appointment unless he or she is available to initiate the hearing within the first 14 days of being appointed [contacted] by the school district.

                        (ii)  The board of education or trustees shall immediately appoint an impartial hearing officer to conduct the hearing.  A board of education may designate one or more of its members to appoint the impartial hearing officer.

                        (iii)  The hearing, or a prehearing conference, shall be scheduled to begin within the first 14 days of the impartial hearing officer's appointment, unless an extension is granted pursuant to subparagraph (i) of paragraph (4) of this subdivision.

                        (iv)  The impartial hearing officer shall be authorized to administer oaths and to issue subpoenas in connection with the administrative proceedings before him/her.

                        [(iv)](v)  A written or, at the option of the parents, electronic verbatim record of the proceedings before the impartial hearing officer shall be maintained and made available to the parties.

                        [(v)] (vi)  At all stages of the proceeding, where required, interpreters of the deaf, or interpreters fluent in the native language of the student’s parent, shall be provided at district expense. 

                        [(vi)  The impartial hearing officer shall preside at the hearing and shall provide all parties an opportunity to present evidence and testimony.]

                        (vii)  The parties to the proceeding may be accompanied and advised by legal counsel and by individuals with special knowledge or training with respect to the problems of students with disabilities.  At all stages of the proceeding, the impartial hearing officer may assist an unrepresented party by providing information relating only to the hearing process.  Nothing contained in this subparagraph shall be construed to impair or limit the authority of an impartial hearing officer to ask questions of counsel or witnesses for the purpose of clarification or completeness of the record.

                        (viii) In the event the impartial hearing officer requests an independent evaluation as part of a hearing, the cost of the evaluation must be at public expense.

                        (ix)  In the event the impartial hearing officer determines that the interests of the parent are opposed to or are inconsistent with those of the student, or that for any other reason the interests of the student would best be protected by appointment of a guardian ad litem, the impartial hearing officer shall appoint a guardian ad litem to protect the interests of such student, unless a surrogate parent shall have previously been assigned.  The impartial hearing officer shall ensure that the procedural due process rights afforded to the student’s parent pursuant to this section are preserved throughout the hearing whenever a guardian ad litem is appointed.

                        (x)  The hearing shall be conducted at a time and place which is reasonably convenient to the parent and student involved and shall be closed to the public unless the parent requests an open hearing.

                        (xi)       A prehearing conference with the parties may be scheduled.  Such conference may be conducted by telephone.  A transcript or a written summary of the prehearing conference shall be entered into the record by the impartial hearing officer.   A prehearing conference is for the purposes of:

                        (a)  simplifying or clarifying the issues;

                        (b)  establishing dates(s) for the completion of the hearing;

                        (c)  identifying evidence to be entered into the record;

                        (d)  identifying witnesses expected to provide testimony; and/or

                        (e)  addressing other administrative matters as the impartial hearing officer deems necessary to complete a timely hearing. 

                        (xii)  The parents, school authorities, and their respective counsel or representative, shall have an opportunity to present evidence, compel the attendance of witnesses and to confront and question all witnesses at the hearing.  Each party shall have the right to prohibit the introduction of any evidence, the substance of which has not been disclosed to such party at least five business days before the hearing.

                        (a)  Additional disclosure of information.  [At] Except as provided for in section 201.11 of this Title, at least five business days prior to a hearing, each party shall disclose to all other parties all evaluations completed by that date and recommendations based on the offering party’s evaluations that the party intends to use at the hearing.  An impartial hearing officer may bar any party that fails to comply with this requirement from introducing the relevant evaluation or recommendation at the hearing without the consent of the other party.

                        (b)  The impartial hearing officer, wherever practicable, shall enter into the record a stipulation of facts and/or joint exhibits agreed to by the parties.

                        (c)  The impartial hearing officer may receive any oral, documentary or tangible evidence except that the impartial hearing officer shall exclude evidence that he or she determines to be irrelevant, immaterial, unreliable or unduly repetitious.  The impartial hearing officer may receive testimony by telephone, provided that such testimony shall be made under oath and shall be subject to cross examination.

                        (d)  The impartial hearing officer may limit examination of a witness by either party whose testimony the impartial hearing officer determines to be irrelevant, immaterial or unduly repetitious.

                        (e)  The impartial hearing officer may limit the number of additional witnesses to avoid unduly repetitious testimony.

                        (f)  The impartial hearing officer may take direct testimony by affidavit in lieu of in-hearing testimony, provided that the witness giving such testimony shall be made available for cross examination.

                        (g)  The impartial hearing officer may receive memoranda of law from the parties not to exceed 30 pages in length, with typed material in minimum 12 point type (footnotes minimum 10 point type) and not exceeding 6 1/2 by 9 1/2 inches on each page. 

                        (xiii)  Each party shall have up to one day to present its case unless the impartial hearing officer determines that additional time is necessary for a full, fair disclosure of the facts required to arrive at a decision.  Additional hearing days, if required, shall be scheduled on consecutive days wherever practicable.

                        [(xii)](xiv) The parents shall have the right to determine whether the student shall attend the hearing.

                        [(xiii)](xiv)  If, by mutual agreement of the parties, the impartial hearing officer is deemed incapacitated or otherwise unavailable or unwilling to continue the hearing or issue the decision, the board of education shall rescind the appointment of the impartial hearing officer and appoint a new impartial hearing officer in accordance with the procedures as set forth in this subdivision.

                        [(xiv)](xvi)  Commencing July l, 2002, each board of education shall report information relating to the impartial hearing process, including but not limited to the request for, initiation and completion of each impartial hearing, to the Office of Vocational and Educational Services for Individuals with Disabilities of the State Education Department in a format and at an interval prescribed by the commissioner.

                        2.  Paragraph (4) of subdivision (i) of section 200.5 of the Regulations of the Commissioner is amended, effective May 1, 2004, as follows:

                        (4)  Except as provided in section [200.16(g)(a)]  200.16(g)(9) of this Part and section 201.11 of this Title, the impartial hearing officer shall render a decision, and mail a copy of the written, or at the option of the parents, electronic findings of fact and the decision to the parents, to the board of education, and to the Office of Vocational and Educational Services for Individuals with Disabilities (VESID) of the State Education Department, not later than 45 days after the receipt by the board of education of a request for a hearing or after the initiation of such a hearing by the board.  In cases where extensions of time have been granted beyond the applicable required timelines, the decision must be rendered and mailed no later than 14 days from the date the impartial hearing officer closes the record.  The date the record is closed shall be indicated in the decision.  The record of the hearing and the findings of fact and the decision shall be provided at no cost to the parents.  All personally identifiable information shall be deleted from the copy forwarded to VESID.

                        (i) An impartial hearing officer may grant specific extensions of time beyond the periods set out in this paragraph, in subparagraph (iii) of paragraph (3) of this subdivision, or in section 200.l6(g)(9) of this Part at the request of either the school district or the parent.  Each extension shall be for no more than 30 days.  The reason for [the] each extension must be documented in the hearing record. [In such case, the impartial hearing officer shall render the decision and mail a copy of the written, or at the option of the parents, electronic findings of fact and the decision to the parents, to the board of education, and to VESID no later than 14 days from the date the record is closed, including any post hearing submissions, and the transcript is received by the impartial hearing officer.]

                        (ii) The impartial hearing officer may grant a request for an extension only after fully considering the cumulative impact of the following factors:

                        (a)  the impact on the child’s educational interest or well-being which might be occasioned by the delay;

                        (b)  the need of a party for additional time to prepare or present the party’s position at the hearing in accordance with the requirements of due process;

                        (c)  any financial or other detrimental consequences likely to be suffered by a party in the event of delay; and

                        (d)  whether there has already been a delay in the proceeding through the actions of one of the parties.

                        (iii) Absent a compelling reason or a specific showing of substantial hardship, a request for an extension shall not be granted because of school vacations, a lack of availability resulting from the parties' and/or representatives' scheduling conflicts, settlement discussions between the parties or other similar reasons.  Agreement of the parties is not a sufficient basis for granting an extension.

                        (iv) The impartial hearing officer shall respond in writing to each request for an extension.  The response shall become part of the record.  The impartial hearing officer may render an oral decision to an oral request for an extension, but shall subsequently provide that decision in writing and include it as part of the record.  For each extension granted, the impartial hearing officer shall set a new date for rendering his or her decision, and notify the parties in writing of such date.

                        (v) The impartial hearing officer shall determine when the record is closed and notify the parties of the date the record is closed.  The decision of the impartial hearing officer shall be based solely upon the record of the proceeding before the impartial hearing officer, and shall set forth the reasons and the factual basis for the determination.  The decision shall reference the hearing record to support the findings of fact.  The impartial hearing officer shall attach to the decision a list identifying each exhibit admitted into evidence.  Such list shall identify each exhibit by date, number of pages and exhibit number or letter.  In addition, the decision shall include an identification of all other items the impartial hearing officer has entered into the record.  The decision shall also include a statement advising the parents and the board of education of the right of any party involved in the hearing to obtain a review of such a decision by the State review officer in accordance with subdivision (j) of this section.  The decision of the impartial hearing officer shall be binding upon both parties unless appealed to the State review officer.

 

PROPOSED AMENDMENT OF SECTION 200.5 OF THE REGULATIONS OF THE COMMISSIONER OF EDUCATION PURSUANT TO SECTIONS 101, 207, 305, 4402, 4403 AND 4404 OF THE EDUCATION LAW RELATING TO IMPARTIAL HEARINGS.

SUPPLEMENTAL ASSESSMENT OF PUBLIC COMMENT

            Since publication of a Notice of Revised Rule Making in the State Register on December 31, 2003, the State Education Department received the following comments.

1.  COMMENT:

            Section 200.5(i)(3)(vii), which includes a provision that "[a]t all stages of the proceeding, the impartial hearing officer (IHO) may assist an unrepresented party by providing information relating only to the hearing process," should be further revised to add the following:  "Nothing contained in this subsection, however, shall impair the right of a hearing officer to ask questions of counsel or witnesses for the purpose of clarification of completeness of the record."

DEPARTMENT RESPONSE:

            The proposed language relating to the IHO providing assistance to an unrepresented party must be read in context with the entire subparagraph (vii), which currently provides that "[t]he parties to the proceeding may be accompanied and advised by legal counsel and by individuals with special knowledge or training with respect to the problems of students with disabilities."  The provision was meant to address situations where a party has no such representation. In such situations, the IHO may provide the unrepresented party with information relating to the hearing process.   The provision was not meant to impair or limit the inherent authority of an IHO to ask questions of counsel and witnesses during the conduct of the impartial hearing.  For purposes of clarification, the proposed amendment has been revised to add the following sentence to subparagraph (vii):  "Nothing contained in this subparagraph shall be construed to impair or limit the authority of an impartial hearing officer to ask questions of counsel or witnesses for the purpose of clarification or completeness of the record."

 2.  COMMENT:

The proposed amendment should be revised to authorize counsel for the parties to issue their own subpoenas, subject to the supervision of the impartial hearing officer.

DEPARTMENT RESPONSE:

            The proposed amendment makes no substantive changes to the existing subpoena provisions relating to impartial hearings, which are found in section 200.5(i)(3)(iv).  Therefore, the suggested revision is beyond the scope of this particular rule making.

 3.  COMMENT:

The provision in section 200.5(i)(3)(xii)(g) which limits memoranda of law to 30 pages is too restrictive, and should be replaced with the following suggested language:  "To the extent requested by either of the parties, the impartial hearing officer shall allow memoranda of law from the parties.  The hearing officer, in his or her sound discretion, shall be empowered to tailor the allowable length of the memoranda so as to be reasonably related to the complexity of the issues, and the length of the evidentiary presentation, allowing at least 30 pages upon the request of either party."

DEPARTMENT RESPONSE

            The suggested revision, in providing for an at least 30-page minimum rather than maximum length for memoranda of law, is contrary to the purpose of the proposed amendment, which is to prescribe procedures to ensure that impartial hearings are conducted in a timely manner pursuant to Federal requirements.  The proposed amendment was previously revised in response to public comment to double the page limitation for memoranda of law from 15 pages to 30 pages and the Department believes this length to be sufficient. 

4.  COMMENT

            Section 200.5(i)(3)(xiii), limiting each side to one day to present its case unless the hearing officer determines "otherwise," is vague, arbitrary and insufficient since it "relies unduly on the grace and willingness of the hearing officer."

DEPARTMENT RESPONSE:

            The comment mischaracterizes the proposed amendment as limiting each side's presentation to one day unless the hearing officer determines "otherwise."   The provision in the proposed amendment actually states:  "[e]ach party shall have up to one day to present its case unless the impartial hearing officer determines that additional time is necessary for a full, fair disclosure of the facts required to arrive at a decision."  The standard to be followed by the IHO in determining whether to allow parties additional time is thus sufficiently articulated in the proposed amendment to provide flexibility where needed consistent with due process, while also ensuring that hearings are timely conducted consistent with Federal requirements.

5.  COMMENT

            The provisions in section 200.5(i)(4)(iii) providing that agreement of the parties is not a sufficient basis for granting an extension, and that extensions shall not be granted for scheduling conflicts or settlement discussions, will discourage settlement discussions and may cause unnecessary hearings.

DEPARTMENT RESPONSE

            Agreement of the parties to extend time is not sufficient because pursuant to 34 CFR section 300.511(c), the IHO, and not the parties, is vested with the authority to determine whether to grant specific extensions of time.  The proposed amendment would still permit an extension to be granted for scheduling conflicts or settlement discussions provided there is "a compelling reason or a specific showing of substantial hardship."  This will ensure that only necessary extensions are granted so that impartial hearings may be timely conducted and decided within Federal requirements.

6.  COMMENT

            Section 200.5(i)(3)(xi) should be revised to ensure that unrepresented parents are not unfairly disadvantaged in prehearing conferences conducted by telephone.  In addition, IHOs should be authorized to entertain a motion to reconsider and adjust the prehearing conference results in instances where unrepresented parents are unable to find counsel until after the prehearing conference is held.

DEPARTMENT RESPONSE

The amendment is consistent with Court decisions allowing testimony by telephone and by affidavit under certain specified circumstances.  It permits, but does not require, use of telephone and affidavit testimony, and leaves such use to the discretion of the hearing officer to determine the appropriateness of such use in individual cases.  Further clarification regarding the use of telephone or affidavit testimony can be addressed through guidance documents.  In addition, pursuant to section 200.5(i)(3)(vii), an IHO may assist an unrepresented party by providing information relating to the hearing process.  The Department believes that determinations regarding prehearing conferences are best left to the discretion of the IHO.