THE STATE EDUCATION DEPARTMENT / THE UNIVERSITY OF THE STATE OF NEW YORK / ALBANY, NY 12234
OFFICE OF SPECIAL EDUCATION
COORDINATOR SPECIAL EDUCATION POLICY AND PROFESSIONAL DEVELOPMENT
Room 309 EB, 89 Washington Avenue Albany, NY 12234
Telephone: (518) 473-4818
Fax: (518) 473-5387
June 2016
SPECIAL EDUCATION FIELD ADVISORY
To: New York State Special Education Impartial Hearing Officers (IHOs)
Directors of Special Education, New York State Public School
Districts
From: Patricia J. Geary
Subject: Guidance on Procedures Relating to Special Education Impartial Hearings
The purpose of this memorandum is to provide clarification regarding some of
the procedural requirements relating to special education due process hearings
pursuant to section 200.5 of the Regulations of the Commissioner.
Amendments to Due Process Complaint Notices:
Whenever a special education impartial hearing is requested, the party presenting the
complaint must provide a written due process complaint notice to the other party. That
notice must provide specific information. A party may not have an impartial hearing
until that written due process notice includes the required information. It is the filing of
that notice that initiates the timelines for the hearing.
Under certain circumstances, the party presenting the complaint may amend the due
process notice. Section 200.5(i)(7) of the Regulations of the Commissioner states that
a party may amend its due process complaint notice only if:
(a)
the other party consents in writing to such amendment and is given the
opportunity to resolve the complaint through a meeting held pursuant to
subdivision (j)(2) of this section; or
(b)
the IHO grants permission. The IHO may grant such permission at any time not
later than five days before an impartial due process hearing commences (i.e.,
not later than five calendar days before the first day of hearing, not each
subsequent hearing day).
Upon receipt of written consent from the other party to the amendment or permission
of the IHO, the party presenting the complaint may file the amended due process
complaint. The applicable timelines for an impartial due process hearing, including the
timelines for the resolution process, recommence at the time the party files the
amended due process complaint notice. The timelines do not recommence at the time
the party initially requests to amend its complaint or amends the complaint without
written agreement by the other party or permission from the IHO as referenced above.
The timeline for commencing a hearing or prehearing conference is prescribed in
section 200.5(j)(3)(iii) of the Regulations of the Commissioner.
Consolidation of due process complaints:
In circumstances when there is an impartial hearing about a student in progress before
one IHO and the same parties submit another due process complaint notice, the
regulations prescribe a process for the IHO assigned to the first case, the pending
case, to determine whether it is appropriate to consolidate or bring together the
issues of both due process complaint notices into one hearing.
Section 200.5(j)(3)(ii)(a) of the Regulations of the Commissioner provides procedures
for the consolidation of due process complaint notices that are filed while an impartial
hearing is pending before an IHO involving the same parties (same parent and same
school district) and the same student with a disability. When a new complaint has been
consolidated with a pending complaint, the timeline for issuance of the decision is the
same timeline as the earliest pending due process complaint. When considering
whether to consolidate one or more separate requests for due process, the IHO must
consider relevant factors, including those found in section 200.5(j)(3)(ii)(a)(4). The IHO
must issue a written order as to whether he/she will or will not consolidate a
subsequent due process request into a pending case. The written order must include
the reason(s) [i.e., analysis] for the IHO’s decision.
Consolidation of a complaint cannot impede a party’s right to participate in a resolution
meeting regarding the issues included in the subsequent due process complaint.
Therefore, when considering whether to consolidate one or more separate requests
for due process, the IHO should weigh whether the timeline applicable to the pending
due process complaint will accommodate a party’s right to participate in the resolution
process. The IHO has the discretion to grant for good cause specific extensions of
time beyond the 45-day timeline at the request of either the school district or the
parent. An extension may be appropriate to accommodate a resolution meeting
between the parties regarding the issues raised in the subsequent complaint.
Withdrawal of due process complaints:
Section 200.5(j)(6) of the Regulations of the Commissioner of Education provides
procedures for a party’s withdrawal of his or her request for a due process hearing.
The regulation states that if the party subsequently files a due process complaint notice
within one year of the withdrawal of a complaint that is based on or includes the same
or substantially similar claims as made in a prior due process complaint notice that
was previously withdrawn by the party, the school district shall appoint the same IHO
appointed to the prior complaint unless that IHO is no longer available to hear the new
due process complaint notice.
A due process complaint seeking tuition reimbursement for a different school year
should not be deemed to be “the same or substantially similar claim” as made for a
prior school year, therefore requiring appointment of the same IHO. Because the claim
for a subsequent tuition claim would be based on the individualized education program
(IEP) developed for the student for a different school year or the failure to develop an
IEP for the new school year, a new IHO must be appointed from the district’s rotational
appointment list rather than appointment of the same IHO who was appointed to the
prior complaint that was withdrawn within one year. However, if the subsequent tuition
claim also includes the tuition reimbursement claim that was previously withdrawn by
the party, the school district shall appoint the same IHO appointed to the prior
complaint unless the IHO is no longer available to hear the new due process complaint
notice.
Record Close Date:
An IHO determines when the record in an impartial hearing is closed. A record is
closed when all post-hearing submissions are received by the IHO. Regulations
require the IHO to notify the parties of the date the record is closed. School districts
must enter the “Actual Record Close Date” (ARCD) in IHRS. Once a record is closed,
there may be no further extensions to the hearing timelines. When a case has been
properly extended, the written decision of the IHO must be rendered and mailed within
14 days of the ARCD.
An IHO has the discretion to revise the record close date, provided good cause exists
to do so. The revised record close date, however, cannot extend the date the decision
is due. Good cause may exist, for example, when an IHO determines that additional
clarification is required after the parties have submitted their post-hearing submissions.
IHO Decisions:
Section 200.5(j)(5) requires that, within 15 days of mailing the decision to the parties,
the IHO must submit the impartial hearing decision to NYSED’s Office of Special
Education. This memo is to remind IHOs that for decisions submitted to NYSED, all
personally identifiable information, in accordance with the guidelines provided by the
Commissioner, must be deleted from the copy forwarded to the Office of Special
Education. A copy of the redaction guidelines is available from NYSED. Decisions that
are not properly redacted upon submission to NYSED may be returned to the IHO for
proper redaction and resubmission.
District Responsibility to Timely Enter Data into IHRS:
Pursuant to section 200.5(j)(3)(xvi) of the Regulations of the Commissioner of
Education, each board of education is required to report information relating to the
impartial hearing process including, but not limited to, the request for initiation and the
completion of each impartial hearing. To capture this information, the Impartial Hearing
Reporting System (IHRS) is a web-based data collection system operating in "real
time" that is used to monitor New York State's due process system to ensure that
impartial hearings are completed within the time periods required by federal and State
law and regulation. Dates for critical points in a case record must be entered in
chronological order, as the information in one part of the record often relies on dates
entered in another part. Therefore, it is of the utmost importance that hearing officers
report their case information to the districts in a timely manner and that districts enter
case information in a timely and chronologically accurate manner. Failure to do so will
often result in multiple errors and timeline anomalies which will then need to be
adjusted by a district within the IHRS.
Questions regarding this memorandum may be directed to the Office of Special
Education, Due Process Unit at (518) 473-0170.