New York State Education Department
Office of Vocational and Educational Services
for Individuals with Disabilities
Special Education Policy Unit

 

IMPARTIAL HEARING PROCESS

FOR STUDENTS WITH DISABILITIES

December 2001

Please note: This document has not been revised to reflect the new requirements of the Individuals with Disabilities Education Act as reauthorized in 2004. However the link to the Sample Form: Request for Due Process Proceedings has been updated to reflect the form effective July 1, 2005.


December 2001

Dear Parents, School District Personnel and Impartial Hearing Officers:

School districts and parents should make every effort to amicably resolve differences over educational programs for students with disabilities. For those exceptional cases when it is not possible to resolve a disagreement without outside assistance, the Individuals with Disabilities Education Act (IDEA) establishes administrative and judicial avenues for parents and school districts, including special education mediation and impartial hearings. We encourage parents and school districts to use mediation. Parents and school personnel who have used mediation to resolve differences report that they are very satisfied with this process. More information on mediation is available at www.acces.nysed.gov/vr/lsn.

An impartial hearing is a more formal process to resolve disputes. This document should assist all parties to understand their responsibilities relating to impartial hearings so that disputes over special education services are resolved in a timely manner. Effective September 2001, the Regulations of the Commissioner of Education were amended relating to impartial hearings to address the qualifications of impartial hearing officers, ensure school districts initiate an impartial hearing in a timely manner, and ensure impartial hearings are completed within the required time periods. The State Education Department is monitoring the impartial hearing system through impartial hearing officer training, the ongoing collection and review of hearing data, quality assurance reviews and complaint investigations so that timely hearing decisions are rendered.

This publication is also available at web.nysed.gov/vesid/pubpage.html. If you would like to be notified via e-mail when there are new VESID special education publications, you may register at web.nysed.gov/vesid/register.htm. Questions regarding this document may be directed to the Special Education Policy Unit at (518) 473-2878.

Sincerely,

Lawrence C. Gloeckler

 


THE UNIVERSITY OF THE STATE OF NEW YORK
Regents of The University

Carl T. Hayden, Chancellor, A.B., J.D. Elmira
Adelaide L. Sanford, Vice Chancellor, B.A., M.A., P.D. Hollis
Diane O’Neill McGivern, B.S.N., M.A., Ph.D. . Staten Island
Saul B. Cohen, B.A., M.A., Ph.D. New Rochelle
James C. Dawson, A.A., B.A., M.S., Ph.D. Peru
Robert M. Bennett, B.A., M.S. Tonawanda
Robert M. Johnson, B.S., J.D. Huntington
Anthony S. Bottar, B.A., J.D. North Syracuse
Merryl H. Tisch, B.A., M.A. New York
Ena L. Farley, B.A., M.A., Ph.D. Brockport
Geraldine D. Chapey, B.A., M.A., Ed.D. Belle Harbor
Arnold B. Gardner, B.A., LL.B. Buffalo
Charlotte K. Frank, B.B.A., M.S.Ed., Ph.D. New York
Harry Phillips, 3rd, B.A., M.S.F.S. Hartsdale
Joseph E. Bowman, Jr., B.A., M.L.S., M.A., M.Ed., Ed.D Albany
Lorraine A. Corts-Vzquez, B.A., M.P.A. Bronx

President of The University and Commissioner of Education
Richard P. Mills

Chief Operating Officer
Richard H. Cate

Deputy Commissioner for Vocational and Educational Services for Individuals with Disabilities
Lawrence C. Gloeckler

Manager, Special Education Policy
Rita D. Levay

The State Education Department does not discriminate on the basis of age, color, religion, creed, disability, marital status, veteran status, national origin, race, gender, genetic predisposition or carrier status, or sexual orientation in its educational programs, services and activities. Portions of this publication can be made available in a variety of formats, including braille, large print or audio tape, upon request. Inquiries concerning this policy of nondiscrimination should be directed to the Department’s Office for Diversity, Ethics, and Access, Room 530, Education Building, Albany, NY 12234. Requests for additional copies of this publication may be made in writing to the Office of Vocational and Educational Services for Individuals with Disabilities, Special Education Publications, Room 1624, One Commerce Plaza, Albany, New York 12234.


IMPARTIAL HEARING PROCESS FOR STUDENTS WITH DISABILITIES

TABLE OF CONTENTS

Introduction

Requests for an Impartial Hearing

Qualifications of an Impartial Hearing Officer

Selection and Appointment of an Impartial Hearing Officer

Procedures to Conduct an Impartial Hearing

Data Reporting Requirements to the State Education Department

Impartial Hearing Officer Compensation Rates

Suspension and Revocation of Impartial Hearing Officer Certification

Attachments

A    Sample Form: Request for Due Process Proceedings

B    New York State Laws and Regulations of the Commissioner of Education (8NYCRR) Relating to Impartial  Hearings


INTRODUCTION

The Individuals with Disabilities Education Act (IDEA) has established due process procedures when a parent and a school district disagree about the identification, evaluation, educational placement or the provision of a free appropriate public education for a student with a disability. Such disagreements can often be resolved through nonadversarial means such as the Committee on Special Education process and/or mediation. An impartial hearing is a more formal method to resolve disputes.

Mediation is an opportunity to resolve issues or conflicts in a non-adversarial manner. Mediation is voluntary and does not deny or delay a parent’s right to an impartial hearing. A qualified and impartial mediator conducts the mediation sessions and an agreement reached by the parents and the school district is set forth in a written mediation agreement, which is binding upon the parties. For more information on the use of mediation, refer to the State Education Department publication, Special Education Mediation: Real Solutions Where Everyone Wins at www.acces.nysed.gov/vr/lsn.

An impartial hearing is a more formal method in which the parties present and refute evidence before an impartial hearing officer (IHO) who renders a written decision. Following is an overview of the impartial hearing process:

1.

 The parent or school district requests an impartial hearing.

2.

 The school district informs the parent of the availability of mediation, provides the parent with a copy of the Procedural Safeguards Notice, and informs the parent of any free or low-cost legal aid or other relevant services that may be available in the area.

3.  The school district selects the IHO through a rotational selection process in accordance with regulatory timelines.
4.  The board of education immediately appoints the IHO .
5.  The IHO presides over the hearing at which the parties have an opportunity to present evidence and testimony.
6. The student remains in his or her current placement during the pendency of an impartial hearing (unless the parents and school district otherwise agree and except as otherwise provided for expedited impartial hearings for certain disciplinary suspensions or removals of a student).
7.  The IHO renders and mails the finding of fact and decision to the parties and to the State Education Department in accordance with regulatory timelines.
8.  The decision of the IHO is final unless appealed to the State Review Officer (SRO).

 


REQUESTS FOR AN IMPARTIAL HEARING

[8NYCRR Sections 200.5(i) and 201.11]

  • A parent or a school district may initiate an impartial 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 student.

  • An expedited impartial hearing relating to the discipline of a student with a disability may be requested:

    • by a school district to obtain an order of an IHO placing a student with a disability in an interim alternative educational setting (IAES) when school personnel maintain that it is dangerous for the student to be in his or her current educational placement;

    • by a school district to obtain an order of an IHO placing a student with a disability in an IAES during the pendency of an impartial hearing or an appeal when school personnel maintain that it is dangerous for the student to be in his or her current educational placement during such proceedings;

    • by a parent who requests an impartial hearing from a determination that the student’s behavior was not a manifestation of the student’s disability; or

    • by a parent relating to any decision regarding a disciplinary change in placement, including but not limited to any decision to place the student in an IAES.

  • A school district must initiate an impartial hearing upon receipt of a written request for a hearing from a parent.

  • With the parent’s written request for the impartial hearing, the parent or the attorney representing the student needs to include: the name and address of the student; the name of the school the student is attending; a description of the nature of the problem of the student relating to the proposed or refused initiation or change, including facts relating to the problem; and a proposed resolution of the problem to the extent known and available to the parents at the time, provided that:

    • the school district may not deny or delay a parent’s right to an impartial hearing if the written request for the hearing does not include all of the above information;

    • if the parent or the attorney does not provide such information, a court may reduce the award of attorney’s fees.

The school district must maintain the confidentiality of the information provided by the parent in this notice.

  • When a parent requests an impartial hearing or when the school district is the party to initiate an impartial hearing, the school district must give the parent notice that:

    • informs the parent of the availability of mediation;

    • informs the parent of any free or low-cost legal and other relevant services available in the area; and

    • provides the parent(s) with a copy of the Procedural Safeguards Notice.

QUESTIONS AND ANSWERS RELATED TO REQUESTS FOR AN IMPARTIAL HEARING

How does a parent request an impartial hearing?

If a parent verbally requests an impartial hearing at a Committee on Special Education (CSE) or Committee on Preschool Special Education (CPSE) meeting, does he or she still need to submit the request in writing?


To whom should the parents address their written request for an impartial hearing?

What information should a parent provide in the written request for an impartial hearing?

How does a school district notify a parent if the district is the party initiating an impartial hearing?

May a school district deny a parent’s request for an impartial hearing?

When is a written request by a parent for an impartial hearing considered "received" by the school district?

What must a school district do when it receives the parent’s written request for an impartial hearing?

May a board of education of the school district delay the initiation of an impartial hearing to see if the Committee on Special Education (CSE) or Committee on Preschool Special Education (CPSE) and parent(s) can resolve the matter outside of the impartial hearing or through mediation?

  1. How does a parent request an impartial hearing?

A parent requests an impartial hearing by writing to the board of education of the child’s school district.

  1. If a parent verbally requests an impartial hearing at a Committee on Special Education (CSE) or Committee on Preschool Special Education (CPSE) meeting, does he or she still need to submit the request in writing?

Yes. The request for an impartial hearing must be in writing.

  1. To whom should the parents address their written request for an impartial hearing?

A parent should direct his or her written request to the board of education of the school district. Any administrative official or other personnel of the school district who receives the written request must forward it immediately to the board of education so the school district can immediately, but in no case later than two business days of the receipt of the request, initiate the process to select the IHO.

  1. What information should a parent provide in the written request for an impartial hearing?

The State Education Department has developed a model form for the parent to provide notice to the school district about the request for the impartial hearing (see Request for Due Process Proceedings – attachment A). The parent (or the attorney representing the student) needs to include information with the parent’s written request for the hearing that describes the nature of the dispute and a proposed resolution of the problem. While a parent or attorney’s failure to submit this information cannot deny or delay a parent’s right to an impartial hearing, it may result in a reduction in the reimbursement of attorneys’ fees to parents if they are the prevailing party in the hearing. It is important for the parent or the attorney representing the student to provide the school district with specific information about the student and the basis of the dispute. This parent notice to the school district will provide the school with an understanding of the parent’s concerns and may result in the school and the parent working together to resolve the problem, possibly removing the need to proceed to an impartial hearing.

  1. How does a school district notify a parent if the district is the party initiating an impartial hearing?

In the event the school district is the party to initiate an impartial hearing, the district must provide the parent with prior written notice that it intends to initiate an impartial hearing. Prior notice includes a statement of the action proposed and any explanation of why the district proposes to take the action.

  1. May a school district deny a parent’s request for an impartial hearing?

No. The school district does not have authority to deny a parent’s written request for an impartial hearing. Only an IHO has the authority to determine whether the parent is entitled to an impartial hearing on an issue. If either party believes that the nature of the disagreement is not appropriate for an impartial hearing or that the issues have or are currently being raised in another hearing or in another forum, the board of education of the school district must still appoint an IHO. Either party to the impartial hearing can ask the IHO to rule on the issue of consolidation or the issue of appropriateness of the hearing issue.

  1. When is a written request by a parent for an impartial hearing considered "received" by the school district?

A written request by a parent for an impartial hearing must be considered "received", and therefore date stamped or logged, on the first business day it is delivered to the school district.

  1. What must a school district do when it receives the parent’s written request for an impartial hearing?

Upon receipt, the parent’s written request for an impartial hearing must be date stamped and immediately forwarded to the person(s) the board of education has designated to begin the rotational selection process for an IHO. The school district must then inform the parent of the availability of mediation and provide a copy of the Procedural Safeguards Notice and a list of low-cost legal aid and other relevant services in the area to the parent(s).

  1. May a board of education of the school district delay the initiation of an impartial hearing to see if the Committee on Special Education (CSE) or Committee on Preschool Special Education (CPSE) and parent(s) can resolve the matter outside of the impartial hearing or through mediation?

No. A school and the parent should continue to work together to resolve the problem, If the matter cannot be resolved through the CSE/CPSE process, the school district should encourage the parent(s) to consider mediation to resolve the disagreement. However, the board of education cannot delay initiating the impartial hearing once a written request for the hearing is received. The process to select the IHO must begin immediately, but in no case later than two business days after receipt of the written request for the hearing. The board of education must then immediately appoint the IHO. Upon reaching a resolution through the CSE/CPSE process or learning the benefits of the mediation process, a parent may, in writing, withdraw his or her request for an impartial hearing. A parent may also pursue mediation while maintaining the request for an impartial hearing.


 

QUALIFICATIONS OF AN 
IMPARTIAL HEARING OFFICER (IHO)

[8NYCRR Section 200.1(x)]

  • To be eligible for certification by the Commissioner of Education as an IHO to conduct hearings (and listed on the Rotational Selection List of IHOs established by the State Education Department), an individual must:

    • be a certified IHO as of September 1, 2001; or beginning September 1, 2001, be a New York State attorney in good standing with a minimum of two years’ practice and/or experience in the areas of education, special education, disability rights or civil rights; or be independent and not an officer, employee or agent of the school district or of the board of cooperative educational services (BOCES) of which the school district is a component or an employee of the State Education Department;

    • not have been employed by a school district, school or program serving students with disabilities placed there by a school district CSE or an officer, employee or agent of a school district for two years following the termination of such employment;

    • have access to the support and equipment necessary to perform the duties of an IHO; and

    • successfully complete a State Education Department training program.

  • To retain certification as an IHO in New York State, the IHO must:

    • attend periodic update training programs as scheduled by the Commissioner; and

    • commencing July 1, 2002, annually submit a certification that he or she meets all the requirements in regulations to be an IHO.

  • To be included on a school district’s rotational selection list of IHOs, the IHO must:

    • be on the Rotational Selection List of IHOs established by the State Education Department; and

    • be designated on the Rotational Selection List of IHOs as available to serve in the particular county in which the school district is located or have contacted the school district directly and indicated his or her availability to serve in the district.

  • To accept appointment by a school district, the IHO must:

    • not have a personal or professional interest which would conflict with his or her objectivity in the hearing; and

    • not have participated in any manner in the formulation of the recommendation that is the subject of the hearing;

    • be able to initiate the hearing within 14 days of being contacted and conclude the hearing within the required time period, unless extensions are granted at the request of either party.

  • The certification of an IHO is subject to suspension or revocation by the Commissioner for good cause.

QUESTIONS AND ANSWERS RELATING TO THE QUALIFICATIONS OF IMPARTIAL HEARING OFFICERS

Will an IHO certified as of September 1, 2001 who is not an attorney with two years practice and/or experience in the areas of education, special education, disability rights or civil rights be qualified to serve as an impartial hearing officer?

If an IHO’s certification is revoked or otherwise lapses, and the IHO does not meet the revised minimum qualifications, may he or she be reinstated at a later date?

When did the revised minimum qualifications for an IHO take effect?

What is required to demonstrate that an individual has two years practice and/or experience in the areas of education, special education, disability rights or civil rights?

What should a school district or a parent do if they have reason to believe the IHO appointed to conduct a hearing cannot be impartial or has a personal or professional conflict of interest with that case or with a particular school district?

May an attorney or a member of a law firm that is providing representation to a school district serve as an IHO for that school district?

May an attorney who represents a school district that is not a party to the particular hearing serve as the IHO?

What "support and equipment" is necessary for an individual to perform the duties of an IHO?

Must an IHO attend and complete "periodic update" training programs conducted by the State Education Department in order to retain certification as an IHO?

What must an IHO annually submit to the State Education Department, commencing July 1, 2002, to certify that the individual meets all the requirements in regulations to be an IHO?

  1. Will an IHO certified as of September 1, 2001 who is not an attorney with two years practice and/or experience in the areas of education, special education, disability rights or civil rights be qualified to serve as an impartial hearing officer?

Yes. Unless an IHO withdraws his or her name from the State Education Department’s Rotational Selection List of IHOs or has his or her certification suspended or revoked by the Commissioner, an individual who was certified as of September 1, 2001 remains qualified to serve as an IHO.

  1. If an IHO’s certification is revoked or otherwise lapses, and the IHO does not meet the revised minimum qualifications, may he or she be reinstated at a later date?

No.

  1. When did the revised minimum qualifications for an IHO take effect?

Any individual who applies to the State Education Department for certification as an IHO after September 1, 2001 must meet the revised minimum qualifications.

  1. What is required to demonstrate that an individual has two years practice and/or experience in the areas of education, special education, disability rights or civil rights?

After September 1, 2001, any individual who applies for certification as an IHO must provide written documentation of his or her experiences in the areas of education, special education, disability rights or civil rights. As examples, an attorney who has at least two year’s experience in representing clients in special education hearings, or an attorney who formerly worked as an educator or educational administrator for at least two years (provided that such experience occurred more than two years prior to the individual’s application for certification as an IHO) could be deemed to have met the practice/experience requirements to qualify the individual as an IHO.

  1. What should a school district or a parent do if they have reason to believe the IHO appointed to conduct a hearing cannot be impartial or has a personal or professional conflict of interest with that case or with a particular school district?

The school district must select and appoint an IHO from the district’s rotational selection list. If either party to the hearing believes there is a potential conflict of interest or concern regarding impartiality with the IHO who has been appointed, this should be raised at the hearing and documented on the record. Unless the IHO declines appointment, the IHO must hear the argument and decide whether or not to recuse him or herself. In the event the IHO recuses him or herself from the hearing, the school district must select and appoint another IHO in accordance with the required procedures so that the hearing can be completed within the time period required in law. In the event the IHO does not recuse him or herself, either party to the hearing may appeal such decision to the SRO once the final decision of the IHO has been rendered on the case.

  1. May an attorney or a member of a law firm that is providing representation to a school district serve as an IHO for that school district?

No. An attorney who is retained to provide legal representation to the school district that is a party to a hearing may not serve as the IHO for that school district. Likewise, that attorney may not preside at that hearing if any other member of the firm to which he or she is affiliated is retained to provide legal representation to that school district. This also applies to non-attorney IHOs who are affiliated with such a firm (e.g., paralegal, expert witness).

  1. May an attorney who represents a school district that is not a party to the particular hearing serve as the IHO?

An attorney who is providing legal representation to a school district that is not a party to the hearing may be appointed as the IHO. However, an IHO may not have a personal or professional interest that would conflict with his or her objectivity in the hearing and may not have participated in any manner in the formulation of the recommendation that is the subject of the hearing. An attorney who represents another school district would be required to disclose his or her relationship, if any, to the parties in a particular case. An IHO must make independent determinations of potential conflicts of interest, including a determination of whether he or she has knowledge or information about a particular student derived from outside the hearing process that would impact upon his or her impartiality in a particular case.

  1. What "support and equipment" is necessary for an individual to perform the duties of an IHO?

It is necessary for an IHO to have access to a telephone, voice mail or telephone answering machine or service, facsimile equipment, an e-mail account, a computer, internet access and a printer. The IHO must ensure that the equipment and personnel he or she uses protects the confidentiality of student information pursuant to the Family and Educational Rights Privacy Act (FERPA).

  1. Must an IHO attend and complete "periodic update" training programs conducted by the State Education Department in order to retain certification as an IHO?

Yes. To retain certification, an IHO must attend and complete the "periodic update" training conducted by the State Education Department at least once every two years beginning with the 2001-2002 school year.

  1. What must an IHO annually submit to the State Education Department, commencing July 1, 2002, to certify that the individual meets all the requirements in regulations to be an IHO?

The State Education Department will require each IHO to annually affirm, on a form and on a date prescribed by the Commissioner, that he or she is qualified to serve as an IHO, including affirmation that the IHO:

  • is an attorney in good standing with a minimum of two years’ practice and/or experience in the areas of education, special education, disability rights or civil rights; or was certified by the State Education Department as an IHO as of September 1, 2001; and

  • has access to the support and equipment necessary to perform the duties of an IHO; and

  • is independent, has not, for two years, been an officer, employee or agent of the school district or of the BOCES of which such school district is a component, or an employee of the State Education Department.


SELECTION AND APPOINTMENT OF AN 
IMPARTIAL HEARING OFFICER

[8NYCRR Section 200.5(i)]

  • The Commissioner certifies each IHO in accordance with the qualifications in Section 200.1(x) of the Regulations of the Commissioner and establishes a Rotational Selection List of IHOs.

  • The board of education of each school district must maintain a list of the names and qualifications of all IHOs who are certified by the Commissioner and available to serve in the school district. Such names must be listed in alphabetical order. The name of any newly certified IHO who is available to serve in the district must be inserted into the list in alphabetical order.

  • The board of education of each school district must establish administrative procedures for the selection and appointment of an IHO.

  • The process the school district uses to select an IHO must begin immediately, but not later than two business days after receipt of the written request for an impartial hearing.

  • An IHO must be selected from the school district’s list of IHOs using a rotational selection process, beginning with the first name appearing after the IHO who last served or, in the event no IHO on the list has served or all of them have served, beginning with the first name appearing on such list.

  • Should that IHO decline appointment, or if, within 24 hours, the IHO fails to respond or is unreachable after reasonable efforts by the school district, each successive IHO whose name next appears on the list shall be offered appointment, until such appointment is accepted.

  • In selecting an IHO, the school district must document, in a way that can be independently verified, that an IHO declined appointment, or that, within 24 hours, the IHO failed to respond or was unreachable after reasonable efforts by the school district.

  • The board of education must immediately appoint the IHO who was selected from the rotational list. A board of education may designate one or more of its members to appoint the IHO on behalf of the board.

  • If, by mutual agreement of the parties, the IHO who has been appointed is deemed incapacitated or otherwise unavailable or unwilling to continue the hearing or issue the decision, the board of education must rescind the appointment of the IHO and immediately appoint another IHO in accordance with the rotational selection and appointment procedures described above.

QUESTIONS AND ANSWERS RELATING TO THE SELECTION AND APPOINTMENT OF AN IMPARTIAL HEARING OFFICER

What procedures should be included in the board of education policy regarding selection and appointment of IHOs?

How does the school district establish and maintain its list of IHOs willing to serve in the district?

When must the process to select the IHO begin?

How should the school district use its rotational list to select the IHO?

Does the IHO selection process always begin with the person after the last IHO appointed?

If an IHO routinely declines appointment requests by a particular school district, must the school district keep that person on its rotational list?

May the school district contact more than one IHO simultaneously to determine availability?

What is the school district's responsibility if an IHO does not respond within 24 hours to the school district’s attempts to ascertain the IHO’s availability?

How and why must the school district maintain independently verifiable documentation of its efforts to offer appointment to IHOs?

May parties to a hearing mutually agree to a particular IHO, disregarding the rotational selection process?

When contacting the IHO to determine his or her availability, must the school district ask the IHO if he or she is available to initiate the impartial hearing within the next 14 days?

Must the impartial hearing begin within 14 days of the date the IHO is contacted by the school district to offer an appointment?

What is a board of education’s responsibility to appoint the IHO?

What information should the board of education send to the IHO upon his or her appointment?

What must a school district do if both parties agree that the IHO is incapacitated or unavailable or unwilling to serve? What documentation is required?

In the event the board of education rescinds the appointment of an IHO and appoints a different IHO, what are the responsibilities of the new IHO to render the decision?

 

  1. What procedures should be included in the board of education policy regarding selection and appointment of IHOs?

Each board of education must establish administrative procedures for the selection and appointment of an IHO consistent with regulatory requirements. Such procedures should include, but are not limited to:

  • how the school district will maintain, review and update, as needed, the school district’s list of IHOs (including the names and qualifications);

  • who will be responsible to act when a written request for an impartial hearing is received, including who will be responsible to ensure parents receive the required notices and information and who will conduct the selection process for the IHO;

  • a method(s) to record (e.g., date stamp or log) the receipt of written requests for impartial hearings;

  • steps to be followed so that written requests for impartial hearings are forwarded in a timely manner to the designated individual(s);

  • how parental requests for an impartial hearing will be acted upon and will remain confidential;

  • the independently verifiable method(s) the school district will use to document its selection of the IHO, including the availability of the IHOs contacted;

  • a process to initiate the selection of an IHO immediately, but not later than two business days after receipt of a written request for an impartial hearing;

  • a process so that the board of education meets its requirement to immediately appoint an IHO;

  • if applicable, designation of one or more of the members of the board of education to appoint an IHO on behalf of the board;

  • the compensation of an IHO, reimbursement for travel and other hearing related expenses and cancellations of scheduled hearing dates; and

  • the possible location(s) for impartial hearings which must be reasonably convenient to the parent and student involved.

  1. How does the school district establish and maintain its list of IHOs willing to serve in the district?

The school district’s list must include all certified IHOs who have indicated their availability to serve as an IHO for that school district. The school district’s list must include all IHOs on the Rotational Selection List of IHOs established by the State Education Department indicated as available in the county in which the school district is located. A school district is not permitted to omit, reject or eliminate from its list IHOs who are on the State Education Department’s Rotational Selection List of IHOs designated as available to serve in the particular county in which the school district is located, unless the IHO states in writing to the school district that he or she is unavailable or unwilling to remain on the school district’s rotational selection list. Additionally, the school district must include IHOs who contact the school district directly and indicate their availability to serve in the district. The board of education must establish and maintain the school district list. Changes to the list may occur throughout the year (i.e., names added, names deleted) and therefore, the board of education must assure that its established list remains current. It is recommended that a copy of the board of education’s policy regarding the compensation rate and reimbursement of travel and other hearing-related costs be provided to each IHO on the district’s list at least annually.

  1. When must the process to select the IHO begin?

Upon receipt of the written request for the hearing, the school district must immediately, but not later than two business days, initiate the process to select an IHO. Once initiated, the selection process should continue in an expeditious manner. Once selected, the IHO must be immediately appointed by the board of education or by the designated representatives from the board.

  1. How should the school district use its rotational list to select the IHO?

Selection of an IHO must be made on a rotational basis, beginning with the first name after the IHO who last served in the school district. If no IHO on the list has served in that district, then selection must be made beginning with the first name on the list. If an IHO declines an offer of appointment, the next person on the list must be offered appointment, proceeding through the list following the established alphabetical order until an appointment is accepted.

  1. Does the IHO selection process always begin with the person after the last IHO appointed?

Yes. Appointment from the rotational list always begins with the next person following the IHO who was last appointed for that school district, regardless of the time that has lapsed between the appointment of IHOs. For example, if "IHO A" and "IHO B" decline an offer and "IHO C" accepts and is appointed in 1999, even if the next time the school district needs to appoint an IHO is in the year 2002, it must proceed to offer the appointment to "IHO D". The school district must maintain accurate records regarding which IHOs were appointed at any point in time for the district. It is not permitted to return to the beginning of the alphabet to select an IHO until the list has been exhausted, even if it takes several years.

  1. If an IHO routinely declines appointment requests by a particular school district, must the school district keep that person on its rotational list?

Yes. As long as the IHO remains on the list, such IHO must be offered appointment consistent with the rotational selection process. However, in the event an IHO repeatedly declines offers, the school district should contact the IHO to ask if he or she wants to remain on the school district’s list. In some situations it may be appropriate for the school district to inform the State Education Department when an IHO routinely declines appointment.

  1. May the school district contact more than one IHO simultaneously to determine availability?

Yes. It is not necessary that the school district contact one IHO on the list, wait 24 hours, and then contact another IHO if the IHO first contacted fails to respond or declines within the 24-hour period. The school district may simultaneously contact several IHOs to ascertain their availability, but the selection of the IHO must be based on the rotational list, regardless of which IHO first responds within a 24-hour period. For example, IHO "A" is first contacted but is not available and the school district leaves a message. The school district may then proceed to immediately contact IHO "B", IHO "C" and IHO "D". If IHO "D" accepts, he or she may not be offered appointment unless IHO’s "A", "B" and "C" decline or fail to respond within 24 hours of being contacted. The procedures established by the board of education must provide for the timely selection and appointment of the IHO.

  1. What is the school district's responsibility if an IHO does not respond within 24 hours to the school district’s attempts to ascertain the IHO’s availability?

In the event the IHO does not respond within 24 hours, the board of education must offer appointment to the next available IHO on the rotational selection list. The school district must ensure there is a mechanism in place to receive the IHO’s response within the 24-hour period.

  1. How and why must the school district maintain independently verifiable documentation of its efforts to offer appointment to IHOs?

The rotational selection process established in law ensures that the IHOs are selected without regard to the preference(s) of either party. The selection process for an IHO is subject to review by the State Education Department during Quality Assurance Reviews and complaint investigations and by the SRO in an appeal. Therefore, regulations require that the board of education maintain independently verifiable documentation that it fully complied with the rotational selection process. Independently verifiable documentation can, for example, include requests by school districts and responses by IHOs conveyed via facsimile, electronic mail, or certified overnight mail and telephone contacts that are recorded and confirmed in writing.

  1. May parties to a hearing mutually agree to a particular IHO, disregarding the rotational selection process?

No. The IHO must be selected according to a rotational selection process.

  1. When contacting the IHO to determine his or her availability, must the school district ask the IHO if he or she is available to initiate the impartial hearing within the next 14 days?

Yes. It is incumbent upon the IHO to decline an offer of appointment if his or her schedule does not allow for the hearing to be convened within 14 calendar days of being contacted by the school district. Prior to offering an appointment, the school district must request the IHO to assure that his or her schedule is such that the hearing can be initiated within the 14 days and concluded within 45 calendar days (30 calendar days for preschool hearings and 15 business days for expedited hearings) unless extensions are granted at the request of either party.

  1. Must the impartial hearing begin within 14 days of the date the IHO is contacted by the school district to offer an appointment?

The IHO must convene the hearing within 14 days unless the date scheduled is adjourned at the request of a party. Any adjournment granted by the IHO needs to be documented in the record.

  1. What is a board of education’s responsibility to appoint the IHO?

A board of education must adopt a written policy that establishes administrative procedures, consistent with the regulations, for the timely selection and appointment of an IHO. Once an IHO is selected, the board of education must immediately appoint the IHO. A board of education may elect to designate the appointment process to one or more of its members so that the appointment can occur immediately. If the board of education does not elect this option, it must immediately (i.e., without delay) convene as a full board to appoint the IHO since an impartial hearing cannot be convened until a board of education appointment is made. The regulations do not permit a delay in the appointment of the IHO. In the event the board does not have a regularly scheduled meeting at the time the IHO is selected, the board of education must convene a special meeting for the purpose of appointing the IHO.

  1. What information should the board of education send to the IHO upon his or her appointment?

Upon appointment of the IHO by the board of education, the board needs to immediately send to the IHO:

  • a letter of appointment;

  • a copy of the date-stamped written request for the hearing which should include the parent notice to the school district or a copy of the written notice provided to the parent if the school district is the party to initiate the hearing;

  • the board of education policy on compensation of the IHO and reimbursement of hearing-related expenses including travel;

  • the name, address and telephone number of the individual representing the school district at the impartial hearing;

  • the name, address and telephone number of the individual representing the parent of the student, if available; and

  • any other information that will facilitate contact between the representatives of the parties.

  1. What must a school district do if both parties agree that the IHO is incapacitated or unavailable or unwilling to serve? What documentation is required?

If the parties to the hearing mutually agree that an IHO cannot or will not continue the hearing, for example because the IHO has become ill or encountered other personal issues that would result in the IHO’s inability to complete the hearing or issue the final written decision, such agreement should be documented in writing by the parties. Upon receipt of a written statement of mutual agreement signed by the parties, the board of education must rescind that IHO’s appointment and the board of education must initiate the process to select and appoint another IHO to serve in that case.

  1. In the event the board of education rescinds the appointment of an IHO and appoints a different IHO, what are the responsibilities of the new IHO to render the decision?

Depending on the stage of the hearing, either party may request the newly appointed IHO to (1) issue a decision based on the record established to date if the hearing has been completed; or (2) continue the hearing building upon the record established to date; or (3) continue the hearing with the development of a new record. The newly appointed IHO would then rule on the request and proceed accordingly.


 

PROCEDURES TO CONDUCT AN IMPARTIAL HEARING

[8NYCRR Sections 200.5(i), 200.16(g) and 201.11]

  • The impartial hearing must be conducted at a time and place that is reasonably convenient to the parent and student involved.

  • The impartial hearing is closed to the public unless the parent requests an open hearing.

  • The parent has the right to determine whether the student will attend the impartial hearing.

  • The IHO presides at the impartial hearing and provides the parties to the hearing an opportunity to present evidence and testimony, compel the attendance of witnesses and confront and question all witnesses at the hearing.

  • The IHO is authorized to administer oaths and to issue subpoenas in connection with the administrative proceedings before him or her.

  • At all stages of the proceeding, where required, interpreters of the deaf, or interpreters fluent in the native language of the student’s parent, must be provided at school district expense.

  • The parties to the hearing 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.

  • Unless a surrogate parent had previously been appointed, an IHO may appoint a guardian ad litem if the IHO determines that the interests of the parent are opposed to or 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. If a guardian ad litem is appointed, the IHO must ensure that the procedural due process rights afforded to the student’s parent are preserved.

  • The introduction of any evidence, the substance of which has not been disclosed to the other party at least five business days before the hearing (three business days for an expedited hearing), may be prohibited from presentation at the hearing at the objection of a party and/or at the discretion of the IHO.

  • The decision of the IHO must be based solely upon the record of the proceeding before the IHO and must set forth the reasons and the factual basis for the determination. The decision of the IHO must also include a statement advising parents and the board of education of the right of any party involved in the hearing to obtain a review of the IHO’s decision by the SRO.

  • The IHO must render and mail his or her decision not later than:

    • 45 calendar days (for a school-age student) after receipt by the board of education of a request for a hearing or after the initiation of such a hearing by the board;

    • 30 calendar days (for a preschool student) after receipt by the board of education of a request for a hearing or after the initiation of such a hearing by the board; and

    • 15 business days (for an expedited impartial hearing) after receipt by the board of education of a request for a hearing or after the initiation of such a hearing by the board.

  • An IHO may grant specific extensions of time beyond the time periods stated above at the request of either the school district or the parent. The reason for the extension must be documented in the record.

  • At the conclusion of the hearing when extensions have been granted at the request of either party, the IHO must:

    • render and mail the decision to the parties and to the State Education Department no later than 14 calendar days from the date the record is closed. A record is "closed" when any post-hearing submissions and the transcript are received by the IHO;

    • for expedited hearings, mail a written decision to the parties within five business days after the last hearing date, but, in no event, later than 45 calendar days after receipt of the request for a hearing.

  • Where the student’s placement during the pendency of an impartial hearing is in dispute, the IHO must render a written decision regarding pendency prior to determining any other issue relating to the evaluation, identification, educational placement or provision of an free appropriate public education to the student. This decision may then be appealed to the SRO.

  • The IHO must 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 State Education Department. All personally identifiable information must be deleted from the copy of the decision of the IHO forwarded to the State Education Department.

  • The record of the hearing and the findings of fact and the decision must be provided at no cost to the parent.

  • The decision of the IHO is final and binding upon both parties unless appealed to the SRO.

QUESTIONS AND ANSWERS RELATING TO PROCEDURES TO CONDUCT AN IMPARTIAL HEARING

Where are impartial hearings conducted?

Who is responsible to arrange for an interpreter of the deaf or an interpreter fluent in the native language of the student’s parent if needed?

Under what circumstances may an IHO communicate with one party without the other party present?

Under what circumstances may an IHO appoint a guardian ad litem?

Must a parent or a school district have an attorney to represent them at an impartial hearing?

What procedures should an IHO use so that an impartial hearing is conducted in an orderly manner?

What does "open hearing" mean?

What is an IHO’s authority with regard to issuing subpoenas and administering oaths?

If a party compels the attendance of an expert witness, who is responsible for the costs associated with having the witness appear?

Can an IHO limit the number of witnesses providing testimony at an impartial hearing?

What should the IHO consider in scheduling hearing dates so that the impartial hearing decision is rendered within the required time period?

Does the IHO have discretion to grant extensions of time beyond the periods of time established in regulation?

What are examples of appropriate reasons for an IHO to grant an extension to an impartial hearing?

What is the process by which an extension to a hearing is granted?

What happens if mediation is requested after an impartial hearing has been requested?

What happens if an impartial hearing is completed but a decision has not been issued by the IHO within the required time period?

If pendency is an issue at a hearing, when must the IHO make a decision on that issue?

How is a decision of an IHO enforced?

 

  1. Where are impartial hearings conducted?

An impartial hearing must be conducted at a location that is reasonably convenient to the parent and the student involved. The specific location is usually determined by the school district in consultation with the IHO and the parent. The location of the impartial hearing must ensure that it is closed to the public, unless otherwise requested by the parent, and must ensure the hearing is conducted with confidentiality protected and without unnecessary interruptions. In large school districts, multiple locations for hearings may need to be established.

  1. Who is responsible to arrange for an interpreter of the deaf or an interpreter fluent in the native language of the student’s parent if needed?

The school district is responsible for arranging for the presence and payment of interpreters.

  1. Under what circumstances may an IHO communicate with one party without the other party present?

No ex parte communication (i.e., communication with one party without the other party present) should occur regarding the hearing issues. An IHO may discuss logistical information regarding a hearing with one or more of the parties such as the need for interpreters and accommodations, dates and times of the hearing, and whether the hearing is to be open or closed to the public. However, an IHO must refrain from communicating with any party or party representative about an issue of fact or law related to the hearing except upon notice with opportunity for all parties to participate. Allegations that improper ex parte communication contacts compromised an IHO’s impartiality may be brought to the SRO on appeal.

  1. Under what circumstances may an IHO appoint a guardian ad litem?

Unless a surrogate parent has been previously appointed, an IHO must appoint a guardian ad litem when he or she determines that the interests of the parent(s) are opposed to or inconsistent with those of the student, or when there is any other reason why the interests of the student would be best protected by the appointment of the guardian ad litem. A guardian ad litem is a person familiar with the special education regulations who is appointed from the list of surrogate parents or who is a pro bono attorney appointed to represent the interests of a student in an impartial hearing and, where appropriate, to join in an appeal to the SRO that has been initiated by the parent or the board of education. A guardian ad litem has the right to fully participate in an impartial hearing by presenting evidence, confronting and questioning all witnesses and prohibiting the introduction of any evidence the substance of which has not been disclosed at least five business days prior to the hearing. The IHO must ensure that the procedural due process rights guaranteed to the child’s parent are preserved throughout the hearing whenever a guardian ad litem is appointed.

  1. Must a parent or a school district have an attorney to represent them at an impartial hearing?

No.

  1. What procedures should an IHO use so that an impartial hearing is conducted in an orderly manner?

An impartial hearing must be conducted in a manner designed to permit each party to present its case. Control of the hearing by the IHO is critical to accomplishing this end. If either party acts in a disruptive manner, the IHO should take appropriate action to restore proper decorum to the hearing. The IHO could go off the record or call a recess for the purpose of reminding the party or attorney/advocate that the hearing will be conducted in a respectful and orderly fashion. The IHO can also warn the individual on the record of possible consequences if the individual continues his or her unacceptable behavior. In extreme cases and with a well-documented record of warnings, the IHO may restrict or remove the attorney/ advocate and allow the party time to find a new advocate/attorney. The party’s representatives should be aware that misconduct by an attorney may also be referred to the New York State Bar Association and if the advocate belongs to a professional association, he/she can be reported to that association.

  1. What does "open hearing" mean?

A parent may request that the impartial hearing be open to the public. An "open hearing" means that any interested individual may observe the impartial hearing. The IHO remains responsible for ensuring that the parties to the hearing and the individuals observing the hearing conduct themselves in an orderly manner and that they are advised about the confidentiality rights of the student. There is no obligation that the location of the hearing be moved to accommodate additional public observation of the hearing.

  1. What is an IHO’s authority with regard to issuing subpoenas and administering oaths?

An IHO is authorized to issue a subpoena for the appearance of a witness and to administer oaths. The party requesting the witness may seek court enforcement of a subpoena.

  1. If a party compels the attendance of an expert witness, who is responsible for the costs associated with having the witness appear?

The party requesting the attendance of a witness is responsible for the costs associated with having that witness appear. A school district makes its current employees available as witnesses at no cost to the parent.

  1. Can an IHO limit the number of witnesses providing testimony at an impartial hearing?

Yes. An IHO may exercise his or her discretion to limit the number of witnesses providing testimony at an impartial hearing so that the decision is reached within the required time period. This discretion must be exercised in the interest of justice consistent with due process rights of the parties. An IHO may limit the number of witnesses, for example, if the IHO determines that the testimony of additional witnesses is irrelevant or would duplicate evidence previously presented and therefore unnecessarily delay a timely decision in the case. An IHO may take direct testimony by affidavit in lieu of in-hearing testimony.

  1. What should the IHO consider in scheduling hearing dates so that the impartial hearing decision is rendered within the required time period?

The IHO must set a date to initiate the hearing that is within 14 calendar days of when the IHO was contacted by the school district and at a time that is reasonably convenient to the parent and the student. The IHO should, in consultation with the parties, estimate the amount of time required for the parties to introduce their evidence. The IHO should then schedule additional hearing dates, if necessary, to reasonably accommodate the parties and witnesses to be called by the parties in consideration of the timelines to complete the hearing. This information needs to be confirmed in writing and sent to the parties so that all parties are knowledgeable of the hearing dates and anticipated decision date. Hearing dates beyond the timelines should not be scheduled unless a party’s request for an extension has been granted.

  1. Does the IHO have discretion to grant extensions of time beyond the periods of time established in regulation?

Yes. Only at the request of one of the parties to a hearing may an IHO grant extensions of time beyond the required time period for the IHO to render and mail the decision. The reason for the extension must be documented in the hearing record. In deciding whether to grant a party’s request for an extension, the IHO should consider the impact of the delay on the student’s educational services.

  1. What are examples of appropriate reasons for an IHO to grant an extension to an impartial hearing?

If requested by one of the parties, an IHO may grant an extension to the required time period, for example, to:

  • provide additional time for an evaluation or independent evaluation to be completed; or

  • allow a witness to appear at a later date; or

  • provide a parent, who had not been given access to school records, an opportunity to exercise his or her right to access such records prior to the hearing.

  1. What is the process by which an extension to a hearing is granted?

An IHO may grant specific extensions of time to issue his or her decision beyond the periods set out in regulation at the request of either the school district or the parent. The IHO is authorized to grant extensions of time that are specific, not indefinite or until an event of unknown duration occurs (e.g., until the parent is able to locate a specific witness or until a settlement is reached by the parties).

When an extension to an impartial hearing is requested by one of the parties, the IHO needs to:

(1) ascertain the reason for the extension request and the number of additional days needed;

(2) record any objections to the extension request; and

(3) rule on the request and document whether it is granted or denied.

If the extension is granted, the IHO should:

(1) determine the period of time necessary to accommodate the request;

(2) establish a date when the hearing will reconvene;

(3) project the date by which the IHO will issue his or her decision based upon the need to accommodate the extension request. This date can be calculated by:

  • projecting the date the hearing will be completed;

  • projecting the date the record will be closed (which includes the due date for any post-hearing briefs and the date that the IHO anticipates receiving the transcript of the hearing); and

  • adding up to 14 calendar days to the latest date described above for the IHO to issue his or her decision pursuant to section 200.5(i)(4)(i) of the Commissioner’s Regulations; and

(4) document in the record the reason for the extension and the specific date that the hearing decision will be rendered.

  1. What happens if mediation is requested after an impartial hearing has been requested?

If, after a request for an impartial hearing has been received, the parents and school district initiate mediation to resolve the dispute that is subject to the impartial hearing, the impartial hearing must still continue unless the request for the impartial hearing is withdrawn. The use of mediation may not deny or delay a parent’s right to an impartial hearing. However, a party may request an extension to an impartial hearing in order to pursue mediation, in which case the IHO must follow the process outlined in question and answer #14 above.

  1. What happens if an impartial hearing is completed but a decision has not been issued by the IHO within the required time period?

The school district must rescind the appointment of the IHO and appoint a new IHO in the event both parties agree that the IHO is unavailable or unwilling to continue the hearing or issue the decision. In addition, the State Education Department will be monitoring data submitted by school districts and will contact an IHO in the event the IHO does not issue a decision within the required time period. As a result of the monitoring of data by the State Education Department, the Commissioner will suspend, revoke or take other appropriate action with respect to the certification of the IHO if there is a finding that the IHO failed to issue a decision in a timely manner. A complaint may also be filed with the State Education Department.

  1. If pendency is an issue at a hearing, when must the IHO make a decision on that issue?

If there is dispute as to the status of the student during the impartial hearing (i.e., pendency), this issue should be raised immediately with the IHO. The IHO needs to render a written decision regarding pendency as soon as possible and prior to determining any other issue relating to the evaluation, identification or placement of a student. The decision of the IHO relating to pendency may be immediately appealed to the SRO.

  1. How is a decision of an IHO enforced?

The decision of an IHO is final and binding upon the parties, unless appealed to the SRO. In the event a school district does not implement the decision of an IHO, the parent(s) can file a 60-day complaint with the State Education Department or go to court. In the event the parent does not implement the decision of the IHO, the school district can pursue the matter in court.


DATA REPORTING REQUIREMENTS TO THE 
STATE EDUCATION DEPARTMENT

[8NYCRR Section 200.5(i)(3)(xiv)]

  • Commencing July 1, 2002, each school district that is a party to an impartial hearing must submit information on the impartial hearing(s) to the State Education Department.

  • Each IHO must submit a copy of the findings of fact and the decision of the impartial hearing to the New York State Education Department, Office of Vocational and Educational Services for Individuals with Disabilities (VESID), with all personally identifiable information deleted. The IHO must accompany each decision with a summary form that documents dates relating to the initiation and completion of the impartial hearing.

QUESTIONS AND ANSWERS RELATING TO DATA REPORTING REQUIREMENTS

Why will a school district that is party to a hearing be required to submit information to the State Education Department regarding the impartial hearing?

What types of data will the State Education Department be collecting from school districts commencing July 1, 2002? How will this data be reported?

What information is the State Education Department using on an interim basis to monitor New York State’s due process system?

  1. Why will a school district that is party to a hearing be required to submit information to the State Education Department regarding the impartial hearing?

Information submitted to the State Education Department by school districts while an impartial hearing is in process will assist the State Education Department in monitoring New York State’s due process system so that impartial hearings are completed within the time periods required in federal and State laws and regulations. School district reporting requirements will begin on July 1, 2002.

  1. What types of data will the State Education Department be collecting from school districts commencing July 1, 2002? How will this data be reported?

The State Education Department is designing a web-based data reporting system that will be used by school districts to report impartial hearing information when a hearing is initiated. Minimally, districts will be reporting on:

  • the date a request for a hearing was received from a parent or initiated by a school district;

  • the date the IHO was appointed by the board of education;

  • the actual dates of the hearing;

  • anticipated date the IHO will render a decision;

  • date(s) for any requests for extensions of the required time lines of 45/30/15 days;

  • which party requested the extension;

  • whether the extension(s) was granted or denied;

  • the reason for the grant or denial;

  • the new decision date if an extension was granted;

  • the date the finding of fact and decision was rendered; and

  • the date the decision was implemented.

Additional information on the data-reporting system will be issued under separate cover in the Spring 2002.

  1. What information is the State Education Department using on an interim basis to monitor New York State’s due process system?

Each IHO must submit a copy of the decision of the impartial hearing to the State Education Department, accompanied by a summary form that documents, among other information, the date the written request for the impartial hearing was received, the date the IHO was appointed, the number of days, if any, granted for an extension and the date the IHO issued his or her decision. These data are reviewed to determine school districts timely appointment of IHOs and the IHO’s timely issuance of decisions.


 

IMPARTIAL HEARING OFFICER COMPENSATION RATES

[8NYCRR Section 200.21(a)]

  • Section 200.21 of the Regulations of the Commissioner requires that an IHO be compensated in an amount not to exceed the applicable rate prescribed in a schedule of maximum rates approved by the Director of the Division of Budget.

  • Effective October 1, 2001, the Division of Budget approved a revised maximum compensation rate for IHOs at the rate of $100 per hour for pre-hearing, hearing, and post-hearing activities. There is no maximum per diem on the number of hours for compensation.

  • For all hearings for which a board of education contracted with an IHO prior to October 1, 2001, the maximum compensation remains at $40 an hour, not to exceed $300 per day for a 7.5-hour day.

QUESTIONS AND ANSWERS RELATING TO THE COMPENSATION 
OF AN IHO

If an IHO was appointed prior to October 1, 2001, but the hearing is still in progress, which compensation rate is the IHO entitled to?

Must an IHO be compensated for time he or she has spent in preparing for a case if the case is settled prior to actually conducting hearing dates?

How are IHO’s reimbursed for travel and other hearing-related expenses?

When should an IHO be paid by the school district?

  1. If an IHO was appointed prior to October 1, 2001, but the hearing is still in progress, which compensation rate is the IHO entitled to?

For the completion of the hearing, the IHO will be compensated at the rate he or she agreed upon at the time of his or her appointment. An IHO appointed prior to October 1, 2001 will be compensated at a rate established by the board of education, not to exceed the maximum compensation rate approved by the Division of the Budget for that period ($40 an hour and $300 per day for a 7.5-hour day).

  1. Must an IHO be compensated for time he or she has spent in preparing for a case if the case is settled prior to actually conducting hearing dates?

Yes. An IHO is entitled to compensation for pre-hearing, hearing, and post-hearing activities. Pre-hearing activities include scheduling the hearing and determining the location; conducting pre-hearing conference calls; arranging for interpreters, witnesses, subpoenas and a stenographer; and writing letters to the parties involved in the hearing. Hearing activities include conducting the hearing, handling settlement agreements placed on the record and arranging for subsequent hearing dates. Post-hearing activities include researching information pertinent to the hearing issue(s), writing the decision and mailing the copies to the parties and to the State Education Department.

  1. How are IHO’s reimbursed for travel and other hearing-related expenses?

School districts must reimburse travel and other hearing-related expenses (e.g., duplication and telephone costs) to an IHO pursuant to board of education policy. Upon appointment of the IHO, the board of education should forward a copy of that policy to the IHO. It is recommended that this policy also be provided annually to each IHO on the district’s list.

  1. When should an IHO be paid by the school district?

School districts should promptly compensate an IHO upon receipt of the IHO’s bill. The IHO’s bill should separately itemize his or her hours, travel expenses and other hearing-related expenses. Therefore, IHOs should keep detailed records of their time and activity for compensation and reimbursement purposes.


SUSPENSION AND REVOCATION OF 
IHO CERTIFICATION

[8NYCRR Section 200.21(b)]

  • Complaints alleging the misconduct or challenging the competence of an IHO can be made to the State Education Department.

  • Such complaints must be made in a signed written statement to the Commissioner of Education and must contain a concise statement and documentation of the facts upon which the complaint is based.

  • Upon receipt of the signed written complaint, the Commissioner will provide the IHO with notice of the complaint. The IHO has 30 calendar days to respond to the written complaint.

  • The State Education Department will review and investigate each complaint as follows:

    • A summary of the complaint will be sent to the IHO and the individual who submitted the complaint (complainant).

    • The State Education Department may request additional information from the complainant, as appropriate, which may include a request for a sworn affidavit.

    • The IHO will be provided an opportunity to respond in writing and provide documentation to the State Education Department. The response from the IHO must be received not later than 30 days from the date the IHO receives the complaint summary.

    • The State Education Department will review all relevant information and send a final written decision to the IHO and the complainant that addresses each allegation in the complaint.

  • In addition to complaints made to the State Education Department, the Commissioner may, on his or her own initiative, suspend, revoke or take such other appropriate action with respect to the certification of the IHO upon a finding that:

    • the IHO failed to comply with an order of the Commissioner;

    • the IHO failed to issue a decision in a timely manner when such delay was not due to extensions granted at the request of either party as documented in the record; or

    • the SRO has determined that an IHO engaged in conduct which constitutes misconduct or incompetence.

  • Upon a finding by the Commissioner that good cause has been established of either misconduct or incompetence on the part of the IHO, the Commissioner will revoke or suspend the certification of the IHO. However, the Commissioner may, in his or her discretion, issue either a warning or a conditional suspension of certification pending completion of a specified course of training where the imposition of a more severe penalty would not be justified.

QUESTIONS AND ANSWERS RELATING TO THE SUSPENSION OR REVOCATION OF IHO CERTIFICATION

Is there a time limit to filing a complaint against an IHO?

What documentation must accompany the complaint against an IHO?

May a school district and a parent file a joint complaint?

What happens in the event the IHO does not respond to the complaint?

What are examples of "other appropriate action" which the Commissioner may take in addition to suspension or revocation of certification?

Under what circumstances can the Commissioner suspend or revoke the certification of the IHO other than as a result of a complaint investigation?

How will school districts not involved in the complaint be notified when an IHO’s certification is suspended or revoked?

  1. Is there a time limit to filing a complaint against an IHO?

A written letter of a complaint against an IHO should be submitted within one year of the date of the alleged misconduct or incompetence.

  1. What documentation must accompany the complaint against an IHO?

Complaints alleging the misconduct or challenging the competence of an IHO must be made in writing to the Commissioner and must contain a concise statement of the facts upon which the complaint is based.

  1. May a school district and a parent file a joint complaint?

Yes.

  1. What happens in the event the IHO does not respond to the complaint?

An IHO who is the subject of an investigation is given the opportunity to respond in writing to the complaint within 30 calendar days of receiving the summary of the complaint. If the IHO does not submit a written response, the investigation will proceed based upon the information available.

  1. What are examples of "other appropriate action" which the Commissioner may take in addition to suspension or revocation of certification?

The Commissioner may issue a warning or a conditional suspension of certification pending completion of a specified course of training where, in the Commissioner’s judgment, the imposition of a more severe penalty would not be justified.

  1. Under what circumstances can the Commissioner suspend or revoke the certification of the IHO other than as a result of a complaint investigation?

There are three circumstances in which the Commissioner may independently act to suspend or revoke an IHO’s certification:

  • when an IHO fails to comply with an order of the Commissioner;

  • when an IHO fails to issue a decision in a timely manner (when the delay is not due to extensions granted at the request of either party as documented in the record); and

  • when the SRO has determined that an IHO engaged in conduct which constitutes misconduct or incompetence.

  1. How will school districts not involved in the complaint be notified when an IHO’s certification is suspended or revoked?

The State Education Department will issue a revised Rotational Selection List of IHOs to all school districts.


Attachment A

Sample Form: Request for Due Process Proceedings

 


 

Attachment B

New York State Laws and Regulations of the 
Commissioner of Education 
Relating to Impartial Hearings

IMPARTIAL DUE PROCESS HEARING REQUIREMENTS

Education Law

Section 4404. APPEAL PROCEDURES FOR CHILDREN WITH HANDICAPPING CONDITIONS

1. If the recommendation of the committee on special education is not acceptable to the parent or person in parental relationship of a student, or if the committee or board of education or trustees fails to make or effectuate such a recommendation within such periods of time as may be required by regulations of the commissioner, such parents or persons in parental relationship shall notify the board of education of this situation and the board shall appoint an impartial hearing officer to hear the appeal and make a determination within such period of time as the commissioner by regulation shall determine, provided that the board of education or trustees shall offer the parent or person in parental relationship the option of mediation pursuant to section forty-four hundred four-a of this article as an alternative to an impartial hearing. Individuals so appointed by a board of education shall be selected from a list of available hearing officers who have successfully completed a hearing officer training program conducted by the department according to a rotation selection process prescribed in regulations of the commissioner; except that a city school district of a city having a population of more than one million inhabitants shall be exempt from such regulations to the extent it maintains its rotational selection process in effect prior to July first, nineteen hundred ninety-three. A record of proceedings before the hearing officer shall be maintained and made available to the parties. The decision of the hearing officer shall be binding upon both parties unless appealed to the state review officer. The commissioner shall establish a department training program which shall be completed to the satisfaction of the commissioner as a condition of certification. The commissioner shall develop and implement a plan to ensure that no individual employed by a school district, school or program serving students with disabilities placed by a school district committee on special education acts as an impartial hearing officer and that no individual employed by such schools or programs serves as an impartial hearing officer for two years following the termination of such employment. Such plan shall be fully implemented no later than July first, nineteen hundred ninety-six. The commissioner shall promulgate regulations establishing procedures for the suspension or revocation of impartial hearing officer certification for good cause. The commissioner shall establish maximum rates for the compensation of impartial hearing officers subject to the approval of the director of the division of the budget. The commissioner shall promulgate regulations establishing procedures and timelines for expedited hearings incases involving: (a) review of a decision that a student with a disability’s behavior was not a manifestation of such student’s disability, or (b) review of an interim alternative educational setting or other placement to the extent required under federal law, or (c) a request by the school district for a determination that maintaining the current educational placement of the student is substantially likely to result in injury to the student or to others.

Section 4410 SPECIAL EDUCATION SERVICES AND PROGRAMS FOR PRESCHOOL CHILDREN WITH HANDICAPPING CONDITIONS.

7. Appeals a. If the determination of the board is not acceptable to the parent, or if the committee or board fails to make or effectuate such a recommendation within such periods of time as are required by subdivision five of this section or by the regulations of the commissioner, such parent may file a written request with the board for an impartial hearing, provided, however, that mediation shall be available to the parent in accordance with the procedures specified in section forty-four hundred four-a of this article.

b. Upon receipt of such request, the board shall provide for a hearing to be conducted in accordance with the provisions of subdivision one of section forty-four hundred four of this article. The impartial hearing officer shall render a decision, and mail a copy of the decision to the parents and to the board, not later than thirty calendar days after the receipt by the board of a request for a hearing or after the initiation of such a hearing by the board. 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 the right to obtain a review of such a decision by a state review officer.

c. During the pendency of an appeal pursuant to this subdivision, unless the board and the parent otherwise agree:

(i) a preschool child who has received services pursuant to subdivision five of this section, shall remain in the current educational placement; or

(ii) a preschool child not previously served pursuant to this section shall, if the parent agrees, receive services in the program designated by the board pursuant to such subdivision five, which designation resulted in such appeal; or

(iii) a preschool child who received services pursuant to section two hundred thirty-six of the family court act during the previous year may receive, from the provider of such services, preschool special education services in an approved program appropriate to the needs of such child.

d. A state review officer of the education department shall review the decision of the impartial hearing officer in the manner prescribed in subdivision two of section forty-four hundred four of this article and render a decision no later than thirty days after the decision of such hearing officer. Review of the final determination or order of the state review officer may be brought in the manner prescribed in subdivision three of section forty-four hundred four of this article.

 

Regulations of the Commissioner of Education

Section 200.1 IMPARTIAL HEARING OFFICER

(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 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

(4) be certified by the commissioner as 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 in reaching and writing a decision;

(ii) 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.

Section 200.2 BOARD OF EDUCATION RESPONSIBILITIES

(b) Written policy. Each board of education or board of trustees shall adopt written policy that:

(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.

(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) certified by the Commissioner of Education pursuant to section 200.1(x)(2) of this Part and;

(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, 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;

Section 200.5 DUE PROCESS PROCEDURES

(i) Impartial hearings. (1) 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. Parental requests must be in writing.

(i) Parent notice to the school district. The parent or the attorney representing the student must provide written notice (which must remain confidential) to the school district in a request for an impartial hearing that shall include:

(a) the name of the student;

(b) the address of the residence of the student;

(c) the name of the school the student is attending;

(d) a description of the nature of the problem of the student relating to the proposed or refused initiation or change, including facts relating to the problem; and

(e) a proposed resolution of the problem to the extent known and available to the parents at the time.

(f) The school district may not deny or delay a parent’s right to a due process hearing for failure to provide the information required in the parent notice to the school district.

(2) When a hearing is requested by either party, the parent shall be given notice which shall inform them of the availability of mediation and of any free or low-cost legal and other relevant services available in the area.

(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.

(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.

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

(v) 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.

(viii) In the event the 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 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) 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.

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

(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) An impartial hearing officer may grant specific extensions of time beyond the periods set out in this paragraph or in paragraph (9) 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.

Section 200.16 EDUCATIONAL PROGRAMS FOR PRESCHOOL STUDENTS WITH DISABILITIES.

(e) Provision of services for preschool students with disabilities….

(9) Impartial hearings. Impartial hearings shall be conducted in accordance with section 200.5 (i) of this Part, provided that the decision of the impartial hearing officer shall be rendered, in accordance with section 4410 of the Education Law, not later than 30 days after the receipt by the board of a request for a hearing or after the initiation of such hearing by the board.

(10) Appeal to a State review officer. Decisions of impartial hearing officers shall be subject to the review of a State review officer of the State Education Department in accordance with section 200.5 (j) of this Part.

Section 200.21 IMPARTIAL HEARING OFFICER RATES AND PROCEDURES FOR SUSPENSION OR REVOCATION OF CERTIFICATION.

(a) Impartial hearing officer rates. Commencing July 1, 1995, impartial hearing officers shall be compensated in an amount not to exceed the applicable rate prescribed in a schedule of maximum rates approved by the Director of the Division of Budget.

(b) Procedures for 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 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) Upon receipt of the complaint, the commissioner shall provide the impartial hearing officer with notice of the complaint and 30 days to respond thereto.

(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.

(5) The commissioner, upon a finding that good cause has been established of either misconduct or incompetence on the part of the impartial hearing officer, shall revoke or suspend the certification of the impartial hearing officer, except that the commissioner may, in his discretion, issue either a warning or a conditional suspension of certification pending completion of a specified course of training where the imposition of a more severe penalty would not be justified.

Section 201.11. EXPEDITED DUE PROCESS HEARINGS

(a) An expedited due process hearing shall be conducted pursuant to this Part under the following circumstances:

(1) The school district requests an expedited due process hearing to obtain an order of an impartial hearing officer placing a student with a disability in an IAES pursuant to section 201.8 of this Part where school personnel maintain that it is dangerous for the student to be in his or her current educational placement; or

(2) The school district requests an expedited due process hearing to obtain an order of an impartial hearing officer placing a student with a disability in an IAES during the pendency of due process hearings where school personnel maintain that it is dangerous for the student to be in his or her current educational placement during such proceedings; or

(3) The parent requests a hearing from a determination that the student's behavior was not a manifestation of the student's disability; or

(4) The parent requests a hearing relating to any decision regarding placement under 34 C.F.R. sections 300.520-528 or this Part, including but not limited to any decision to place the student in an IAES.

(b) An expedited due process hearing shall be conducted in accordance with the procedures specified in 34 C.F.R. sections 300.508 and 300.509 (Code of Federal Regulations, 1999 edition, Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402-9328: 1999 - available at the Office of Vocational and Educational Services for Individuals with Disabilities, Room 1624, One Commerce Plaza, Albany, NY 12234) and subdivision (i) of section 200.5 of this Title, except as follows:

(1) Any party to the hearing shall have the right to prohibit the introduction of any evidence at the hearing that has not been disclosed to that party at least 3 business days before the hearing.

(2) At least 3 business days prior to the hearing, each party shall disclose to all other parties all evaluations completed as of that date and recommendations based on the offering party's evaluations that the party intends to use at the hearing.

(c) An expedited due process hearing shall be completed within 15 business days of receipt of the request for a hearing, provided that the impartial hearing officer may grant specific extensions of such time period at the request of either the school district or the parent. The impartial hearing officer shall mail a written decision to the parties within 5 business days after the last hearing date, but in no event later than 45 calendar days after receipt of the request for a hearing, without exceptions or extensions.

(d) If a parent requests a hearing or an appeal regarding the change in placement of a student to an IAES by a superintendent of schools pursuant to a change in placement to an IAES pursuant to subdivision (e) of section 201.7 of the Part for behavior involving carrying or possessing a weapon or illegal drug or controlled substances, or regarding a change in placement to an IAES by an impartial hearing officer pursuant to section 201.8 of this Part where the school district maintains that it is dangerous for the student to remain in his or her current educational placement, or regarding a determination that the behavior is not a manifestation of the student's disability for a student who has been placed in an IAES, the student shall remain in the IAES pending the decision of the impartial hearing office or until expiration of the time period determined in accordance with subdivision (e) of section 201.7 or in accordance with section 201.8 of this Part, as applicable, but not to exceed 45 days, whichever occurs first, unless the parents and the school district otherwise agree.

(e) If a student is placed in an IAES under the circumstances described in subdivision (e) of this section, and school personnel propose to change the student's placement after expiration of the IAES, during the pendency of any proceeding to challenge the proposed change in placement, the student shall remain in his or her current educational placement (the placement prior to removal to the IAES), except where the student is again placed in an IAES by an impartial hearing officer pursuant to section 201.8 of this Part in an expedited due process hearing where the school district maintains that it is dangerous for the student to remain in his or her current educational placement.