Revised Regulatory Impact Statement
Proposed Amendment of Sections 200.1, 200.5 AND 200.16 of the Regulations of the Commissioner of Education Pursuant to Sections 101, 207, 305, 4403, 4404 and 4410 of the Education Law, Relating to Students with Disabilities
Revised Regulatory Impact Statement
Since publication of a Notice of Revised Rule Making in the State Register on July 11, 2012, the following substantial revisions were made to the proposed rule:
Proposed clause 200.5(j)(3)(ii)(a) was revised to: clarify the rules regarding appointment of an impartial hearing officer (IHO) when there are multiple due process hearing requests for the same parties and student with a disability; delete proposed language relating to consolidation of additional hearings; add that the IHO’s decision to consolidate or deny consolidation shall be by written order; and clarify that the timeline for the issuance of a decision for consolidated complaints shall be the timeline in the earliest pending due process complaint.
Proposed subparagraph 200.5(j)(3)(iii) was revised to clarify that it is the mandatory prehearing conference and not the hearing that must be convened within 14 days after one of the events specified in regulation.
Proposed subparagraph 200.5(j)(3)(xi) was revised to delete “upon commencement of the hearing” and to add that a prehearing conference is conducted to facilitate a fair, orderly and expeditious hearing.
Proposed subclause 200.5(j)(3)(xi)(a)(4), relating to the purpose of a prehearing conference, was revised to replace “to identify the number of witnesses” to “discussing witnesses.
Proposed subclause 200.5(j)(3)(xi)(b)(5) was revised to remove the requirement that a written prehearing order identify the deadline date for final disclosure of the identification of witnesses expected to provide testimony at the hearing since this information would be provided through the requirement for final disclosure of all evidence.
Proposed clause 200.5(j)(3)(xi)(c) was revised to remove the provision that with the consent of all parties, an IHO may, in his or her discretion, dispense with the parties’ presence at a prehearing conference and rely upon alternative methods of communication regarding matters set forth in this subparagraph since section 200.5(j)(3)(xi) provides that a prehearing conference may be conducted by telephone.
Proposed clause 200.5(j)(3)(xi)(f) was renumbered (e) and revised to clarify that an IHO is prohibited from conducting a prehearing conference prior to the date in which the party has a right to a hearing, provided that an IHO may conduct a prehearing conference if necessary to meet a federal requirement.
Proposed subparagraph 200.5(j)(4)(iii) was revised to add “or amended to process complaint.”
Proposed paragraph 200.5(j)(5) was revised to conform the timelines for the due date of the IHO’s decision with federal regulations and to delete the proposed amendments that would have required the IHO to submit an unredacted copy of the IHO’s decision to the Office of Special Education of the State Education Department and to require, whenever possible, copies submitted to the State Education Department shall be transmitted by secure electronic document submission or in another electronic format. This section was also revised to replace the term “re-file” with “transmit” relating to the IHO’s responsibility to give the record to the school district.
Proposed clause 200.5(j)(5)(vi)(a) was revised to clarify that the reference to “any response to the complaint” means such responses as required pursuant to paragraphs 200.5(i)(4) and (5) of the Commissioner’s regulations.
Proposed subparagraph 200.5(j)(6)(i) was revised to replace “Prior to the commencement of the hearing or prehearing conference….” with “Prior to the commencement of the hearing….”.
Proposed subparagraph 200.5(j)(6)(ii) was revised to clarify that after the commencement of a hearing, the party requesting the hearing must notify the IHO and the other party of an intent to withdraw and the IHO must issue a notice of termination. Language was further revised to clarify that a withdrawal shall be deemed to be without prejudice except that the IHO may, upon notice and an opportunity for the parties to be heard, issue a decision that the withdrawal be with prejudice at the request of a party or on the IHO’s own initiative.
Proposed subparagraph 200.5(j)(6)(iii) was revised to correct a cross citation to subparagraph 200.5(j)(1)(i).
Proposed subparagraph 200.5(j)(6)(iv) was revised to replace the reference to “Part” with “section”.
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 rule 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; amends the procedures for conducting hearings to ensure they are held in an timely, 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.
Specifically, the proposed rule ensures that individuals certified by the Commissioner as IHOs are willing and available to accept appointment to conduct impartial hearings; establishes procedures for consolidation and multiple due process hearing requests filed for the same student; requires and establishes procedures for prehearing conferences; prohibits an IHO from issuing a decision to enforce the terms of a settlement agreement or an order by an administrative officer; aligns the State’s timeline for an IHO to render a decision consistent with the federal timelines; prohibits an IHO from soliciting extension requests or issuing extensions to an impartial hearing due to his or her own scheduling conflicts; amends the considerations that an IHO must make in granting a request for an extension; specifies information that must be included in the hearing record; extends the timeline by which one redacted copy of the impartial hearing decision must be provided to the State Education Department; defines and establishes procedures for transmittal of the impartial hearing record to the school district; and establishes procedures for the withdrawal of a due process complaint.