Policy 01-07

July 2001

TO:

District Superintendents

Presidents of Boards of Education

New York City Board of Education

Superintendents of Schools

Superintendents of State-Operated and State-Supported Schools

Superintendents of Special Act Schools

Organizations, Parents & Individuals Concerned with Special Education

Directors of Special Education

Executive Directors of Approved Private Schools
Directors of Pupil Personnel Services
Chairpersons of Committees on Special Education
Chairpersons of Committees on Preschool Special Education
Directors of Approved Preschool Programs and Preschool Educators
New York City Committee on Preschool Special Education Chairpersons & Administrators
New York City Committee on Special Education Chairpersons and Administrators
Early Childhood Direction Centers
School Psychologists

Impartial Hearing Officers

New York State Community Dispute Resolution Centers
Commissioner's Advisory Panel for Special Education Services
SETRC Project Directors and Training Specialists

Independent Living Centers

Colleges with Special Education Teacher Training

Other State Agency Programs
FROM: Lawrence C. Gloeckler
SUBJECT: Amendments to Sections 200.1, 200.2, 200.5 and 200.21 of the Regulations of the Commissioner of Education relating to the Impartial Hearing Process for Students with Disabilities

Attached are amendments to Part 200 of the Regulations of the Commissioner of Education which were adopted by the Board of Regents at the June 2001 meeting. These amendments become effective on September 1, 2001. The Regulations, as amended, establish requirements relating to the impartial hearing process for students with disabilities, including the qualifications of impartial hearing officers, procedures for the appointment of an impartial hearing officer, procedures to conduct the hearing, data reporting requirements (effective September 1, 2002), and procedures for the suspension or revocation of the impartial hearing officer certification.

Prior to the September 1, 2001 effective date, the Department will issue a guidance document relating to the impartial hearing process. In addition, public information sessions will be conducted in the fall, which will include presentations on the changes to these Regulations. If you have questions regarding these regulatory changes, please contact the Special Education Policy Unit at (518) 473-2878 or your Regional Associate at one of the following Special Education Quality Assurance Regional Offices:

Central New York Regional Office (315) 471-4796

Eastern Regional Office (518) 486-6366

Hudson Valley Regional Office (914) 245-0010

Long Island Regional Office (631) 884-8530

New York City Regional Office (718) 722-4544

Western Regional Office (716) 344-2112, ext. 420

 

AMENDMENT TO THE REGULATIONS OF THE COMMISSIONER OF EDUCATION

Repealed language is in brackets [ ]

Added language is underlined ______

                Pursuant to sections 101, 207, 4403, 4404 and 4410 of the Education Law

                1. Subdivision (x) of section 200.1 of the Regulations of the Commissioner of Education is amended, effective September 1, 2001, as follows:

                (x) Impartial hearing officer means an individual assigned by a board of education pursuant to Education Law, section 4404(1), or by the commissioner in accordance with section 200.7(d)(1)(i) of this Part, to [hear an appeal] conduct a hearing and render a decision. Commencing July 1, 1996, no individual employed by a school district, school or program serving students with disabilities placed there by a school district committee on special education may serve as an impartial hearing officer and no individual employed by such schools or programs may serve as an impartial hearing officer for two years following the termination of such employment, provided that a person who otherwise qualifies to conduct a hearing under this section shall not be deemed an employee of the school district, school or program serving students with disabilities solely because he or she is paid by such schools or programs to serve as an impartial hearing officer. An impartial hearing officer shall:

                (1) be an individual admitted to the practice of law in the State of New York who is currently in good standing and who has a minimum of two years practice and/or experience in the areas of education, special education, disability rights or civil rights; or be an individual certified by the State of New York as an impartial hearing officer on September 1, 2001;

                (2) have access to the support and equipment necessary to perform the duties of an impartial hearing officer;

                (3) be independent, shall not be an officer, employee or agent of the school district or of the board of cooperative educational services of which such school district is a component, or an employee of the Education Department, shall not have a personal or professional interest which would conflict with his or her objectivity in the hearing, and shall not have participated in any manner in the formulation of the recommendation sought to be reviewed; and

                [(2)] (4) be certified by the commissioner as [a] an impartial hearing officer eligible to conduct hearings pursuant to Education Law, section 4404(1) and subject to suspension or revocation of such certification by the commissioner for good cause in accordance with the provisions of section 200.21 of this Part. In order to obtain and retain such a certificate, an individual shall:

                (i) successfully complete a training program, conducted by the department, which program provides information regarding State and Federal laws and regulations relating to the education of students with disabilities, the needs of such students, and the procedures involved in conducting a hearing, and [provides experience] in reaching and writing a decision[. The duration and content of such program may be varied based upon the participant's previous experience as a hearing officer];

                (ii) [either:

                (a) attain a passing score on a comprehensive written examination designed to evaluate the participant's knowledge and skills as they relate to the responsibilities of an impartial hearing officer; or

                (b) establish to the satisfaction of the commissioner, based on such individual's past decisions as a hearing officer, that he or she possesses knowledge and skills equivalent to those necessary to obtain a passing grade on the examination referred to in clause (a) of this subparagraph; and

                (iii)] attend such periodic update programs as may be scheduled by the commissioner; and

                (iii) commencing July 1, 2002, annually submit, in a format and by a date prescribed by the commissioner, a certification that the impartial hearing officer meets the requirements of paragraphs (1), (2) and (3) of this subdivision.

                2. Paragraphs (7) and (8) are amended and a new paragraph (9) is added to subdivision (b) of section 200.2 of the Regulations of the Commissioner of Education, effective September 1, 2001, as follows:

                (7) establishes a plan and policies for implementing schoolwide approaches and prereferral interventions in order to remediate a student’s performance prior to referral for special education; [and]

                (8) establishes plans and policies for the appropriate declassification of students with disabilities which must include:

                (i) . . . .

                (ii) . . . .

                (iii)the provision of educational and support services to the student upon declassification; and

               (9) establishes administrative procedures for the selection and board appointment of an impartial hearing officer consistent with the procedures in paragraph (1) of subdivision (e) of this section and section 200.5(i) of this Part.

                3. Subdivision (e) of section 200.2 of the Regulations of the Commissioner of Education is amended, effective September 1, 2001, as follows:

                (e) Maintenance of lists. The board of education or trustees of each school district shall establish a list of:

                (1) the names and resumes of all impartial hearing officers who are:

       (i) . . . .

                (ii) available to serve in the district in hearings conducted pursuant to Education Law section 4404(1). Appointment of impartial hearing officers pursuant to Education Law, section 4404(1) shall be made only from such list and in accordance with the rotation selection process prescribed herein and the timelines and procedures in section 200.5(i) of this Part. Such names will be listed in alphabetical order. Selection from such list shall be made, on a rotational basis beginning with the first name appearing after the impartial hearing officer who last served or, in the event no impartial hearing officer on the list has served, beginning with the first name appearing on such list. Should that impartial hearing officer decline appointment, or if, within 24 hours, the impartial hearing officer fails to respond or is unreachable after reasonable efforts by the district that are documented and can be independently verified, [the board shall proceed through such list, offering appointment to] each successive impartial hearing officer whose name next appears on the list shall be offered appointment, until such appointment is accepted. The name of any newly certified impartial hearing officer who is available to serve in the district shall be inserted into the list in alphabetical order;

                (2) . . .

                (3) . . .

                4. Subdivision (i) of section 200.5 of the Regulations of the Commissioner of Education is amended, effective September 1, 2001, as follows:

                (i) Impartial hearings. (1) [Upon receipt of a notice in accordance with the provisions of subdivision (a) of this section, or in the event that the committee on special education fails to make a recommendation in accordance with the provisions of section 200.4 of this Part, or that the board of education or trustees shall fail to effectuate the recommendation of such committee within the timelines specified in section 200.4 of this Part, a parent may request an impartial formal hearing.] A parent or a school district may initiate a hearing on matters relating to the identification, evaluation or educational placement of a student with a disability, or the provision of a free appropriate public education to the child. [Such request] Parental requests must be in writing.

                (i) . . . .

                (2) . . .

                (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 paragraph (1) of subdivision (e) of section 200.2 of this Part and the administrative procedures established by the board of education pursuant to paragraph (9) of subdivision (b) of section 200.2 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 contacted by the school district.

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

                [(ii)] (iv) . . . .

                [(iii)] (v) . . . .

                [(iv)] (vi) . . . .

                [(v)] (vii) . . . .

                [(vi)] (viii) . . . .

                [(vii)] (ix) . . . .

                [(viii)] (x) . . . .

                [(ix)] (xi) 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 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.

                [(x)] (xii) . . . .

                (xiii) 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) Commencing July 1, 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.

                (4) 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. All personally identifiable information shall be deleted from the copy forwarded to VESID.

                (i) [A] An impartial hearing officer may grant specific extensions of time beyond the periods set out in this paragraph or in paragraph (9) of subdivision (g) of section 200.16 of this Part at the request of either the school district or the parent. The reason for the 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 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 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.

                5. Subdivision (b) of Section 200.21 of the Regulations of the Commissioner of Education is amended, effective September 1, 2001, as follows:

                (b) Procedures for the suspension or revocation of impartial hearing officer certification. The certification of impartial hearing officers is subject to suspension or revocation on the grounds of incompetence or misconduct.

                (1) Complaints alleging the misconduct or challenging the competence of an impartial hearing officer shall be made in [writing] a signed written statement to the commissioner and shall contain a concise statement and documentation of the facts upon which the complaint is based.

                (2) . . . .

                (3) The commissioner shall provide for review and, if warranted, further investigation of the complaint. The investigation process shall be conducted in accordance with the following:

               (a) A summary of the complaint shall be sent to the impartial hearing officer and complainant.

               (b) Additional information may be requested from the complainant, as appropriate, which may include a request for a sworn affidavit.

               (c) The impartial hearing officer shall be provided an opportunity to respond in writing and provide documentation to the State Education Department. The response from the impartial hearing officer must be received not later than 30 days from the date the impartial hearing officer receives the complaint summary.

                (d) All relevant information shall be reviewed.

                (e) A written final decision shall be sent to the impartial hearing officer and complainant that addresses each allegation in the complaint.

                (f) If, upon a review of the facts, the commissioner finds misconduct or incompetence on the part of the impartial hearing officer, the commissioner may issue a warning letter to the impartial hearing officer containing an order for corrective action, or, depending on such factors as the level of misconduct or incompetence and the number of prior findings of misconduct or incompetence against the impartial hearing officer, the certification of the impartial hearing officer may be suspended or revoked.

                (4) In addition to complaints made to the commissioner in accordance with paragraph (1) of this subdivision, the commissioner, on his or her initiative, may suspend, revoke or take such other appropriate action with respect to the certification of the impartial hearing officer upon a finding that:

               (a) the impartial hearing officer failed to comply with an order of the commissioner;

                (b) the impartial hearing officer failed to issue a decision in a timely manner where such delay was not due to extensions granted at the request of either party as documented in the record; or

                (c) the State Review Officer determined that an impartial hearing officer engaged in conduct which constitutes misconduct or incompetence.

                [(4)] (5) . . . .