8 CRR-NY 200.5NY-CRR
8 CRR-NY 200.5
8 CRR-NY 200.5
200.5 Due process procedures.
(a) Prior written notice (notice of recommendation) and other written notifications.
(1) Prior written notice (notice of recommendation) that meets the requirements of section 200.1(oo) of this Part must be given to the parents of a student with a disability a reasonable time before the school district proposes to or refuses to initiate or change the identification, evaluation, educational placement of the student or the provision of a free appropriate public education to the student. Prior written notices issued during the 2011-12 school year, and thereafter, shall be on a form prescribed by the commissioner.
(2) If the prior written notice relates to an action proposed by the school district that also requires parental consent under subdivision (b) of this section, the district must give notice at the same time it requests parent consent.
(3) The prior written notice must include:
(i) a description of the action proposed or refused by the district;
(ii) an explanation of why the district proposes or refuses to take the action;
(iii) a description of other options that the CSE considered and the reasons why those options were rejected;
(iv) a description of each evaluation procedure, assessment, record, or report the CSE used as a basis for the proposed or refused action;
(v) a description of other factors that are relevant to the CSE's proposal or refusal;
(vi) a statement that the parents of a student with a disability have protection under the procedural safeguards of this Part, and, if this notice is not an initial referral for an evaluation, the means by which a copy of a description of the procedural safeguards can be obtained; and
(vii) sources for parents to contact to obtain assistance in understanding the provisions of this Part.
(4) The prior written notice must be written in language understandable to the general public, and provided in the native language of the parent or other mode of communication used by the parent, unless it is clearly not feasible to do so. If the native language or other mode of communication of the parent is not a written language, the school district shall take steps to ensure that the notice is translated orally or by other means to the parent in his or her native language or other mode of communication; that the parent understands the content of the notice; and that there is written evidence that the requirements of this section have been met.
(5) In addition to the requirements of paragraphs (3) and (4) of this subdivision:
(i) Upon receipt of a referral for initial evaluation or prior to conducting a reevaluation, such prior written notice shall include a description of the proposed evaluation or reevaluation and the uses to be made of the information and indicate that the parent may submit evaluation information which, if submitted, shall be considered by the committee on special education as part of its evaluation or review.
(ii) Prior to the student's graduation with a local high school or Regents diploma, such prior written notice must indicate that the student is not eligible to receive a free appropriate public education after graduation with the receipt of the local high school or Regents diploma.
(iii) Prior to the student's graduation with an individualized education program (IEP) diploma or, beginning with the 2013-14 school year, prior to the student's exit with a skills and achievement commencement credential or a career development and occupational studies commencement credential as set forth in section 100.6 of this Title, such prior written notice must indicate that the student continues to be eligible for a free appropriate public education until the end of the school year in which the student turns age 21 or until the receipt of a Regents or local high school diploma.
(6) Other required notifications. A parent of a student with a disability shall also be provided written notification as follows:
(i) If the committee on special education and other qualified professionals, as appropriate, determine in accordance with section 200.4(b)(5) of this Part that no additional data are needed to determine whether the student continues to be a student with a disability and to determine the student's educational needs, the school district must notify the parents of that determination and the reasons for the determination and the right of such parents to request an assessment to determine whether the student continues to be a student with a disability and to determine the student's education needs.
(ii) Upon a board of education's disagreement with the recommendation of the committee on special education pursuant to section 200.4(e)(2) of this Part, the notice to the parent and to the committee shall set forth in writing a statement of the board of education's reasons and indicate that the recommendation will be sent back to the committee, with notice of the need to schedule a timely meeting to review the board's concerns and to revise the IEP as deemed appropriate.
(iii) For a student whom the committee on special education has determined to be at risk of a future residential placement, information must be provided to the parent on community support services that may be available to the family, including the name and address of agencies which can perform an assessment of a family's community support needs, where such list has been made available to the committee.
(iv) For students recommended for an approved private school, a copy of the approved private school's policy on the use of psychotropic medication must be provided to the student's parents if the school uses psychotropic medication.
(7) A parent of a student with a disability may elect to receive prior written notice and other required notifications by an electronic mail (e-mail) communication if the school district makes this option available.
(b) Consent.
(1) The school district must make reasonable efforts to obtain written informed consent of the parent, as such term is defined in section 200.1(l) of this Part, and must have a detailed record of its attempts, and the results of those attempts. Written consent of the parent is required:
(i) prior to conducting an initial evaluation or reevaluation, except that:
(a) parental consent is not required before reviewing existing data as part of an evaluation or a reevaluation or administering a test or other evaluation that is administered to all students unless, before administration of that test or evaluation, consent is required of parents of all students;
(b) parental consent need not be obtained for a reevaluation if the school district can demonstrate that it has made reasonable efforts to obtain that consent, and the student's parents failed to respond;
(c) in the event the parent of the student to be evaluated does not grant consent for an initial evaluation, such parent shall be informed by the committee chairperson that, upon request, the parent will be given an opportunity to attend an informal conference with the committee or designated professionals most familiar with the proposed evaluation, the person who referred the student for such an evaluation pursuant to section 200.4(a)(1)(ii), (iii) and/or (iv) of this Part, and counsel or an advisor of the parent's choice, at which time the parent shall be afforded an opportunity to ask questions regarding the proposed evaluation. If at this meeting the parent and such person initiating the referral agree in writing that the referral is not warranted, the referral shall be withdrawn. Except in the case of a preschool child, a student who is home instructed pursuant to section 100.10 of this Title or a student placed in a private school by the parents at their own expense, if the parent does not request or attend such a conference, or continues to withhold consent for evaluation otherwise required for a period of 30 days after the date of receipt of a referral, the board of education may pursue the initial evaluation of the student by utilizing the due process procedures described in this section;
(ii) prior to the initial provision of special education to a student who has not previously been identified as having a disability. Consent for initial evaluation may not be construed as consent for initial provision of special education services; and
(iii) prior to releasing any personally identifiable information as described in subdivision (e) of this section, in accordance with sections 200.2(b)(6) and 200.4(h) and (i) of this Part.
(2) A school district may not use a parent's refusal to consent to one service or activity under paragraph (1) of this subdivision to deny the parent or child any other services, benefit, or activity of the school district, except for the conditions under paragraph (1) of this subdivision for which consent is required.
(3) If the parents of a student with a disability refuse to give consent for an initial evaluation or reevaluation or fail to respond to a request to provide consent for an initial evaluation, the school district may, but is not required to, continue to pursue those evaluations by using the due process procedures described in subdivisions (h) through (k) of this section. The school district does not violate its obligation to locate, identify, and evaluate a student in accordance with sections 200.2(a) and 200.4(b) and (c) of this Part if it declines to pursue the evaluation.
(4) If the parent of the student refuses to consent or fails to respond to a request to provide such consent to the initial provision of special education programs and services, the school district shall not provide the special education programs and services to the student and shall not use the due process procedures described in subdivisions (h) through (k) of this section to challenge the parent's refusal to consent.
(i) the school district shall not be considered to be in violation of the requirements to make available a free appropriate public education to the student because of the failure to provide such student with the special education program and services for which the parent refuses to or fails to provide consent; and
(ii) the school district shall not be required to convene a meeting of the committee on special education or develop an IEP under section 200.4 of this Part for the student.
(5) If, at any time subsequent to the initial provision of special education programs and services, the parent of a student revokes consent in writing for the continued provision of special education programs and services, the school district;
(i) shall not continue to provide any special education programs and services to the student, but must provide prior written notice in accordance with subdivision (a) of this section before ceasing the provision of special education programs and services;
(ii) shall not use the due process procedures described in subdivisions (h) through (k) of this section to obtain agreement or a ruling that the services may be provided to the student;
(iii) shall not be considered to be in violation of the requirement to make available a free appropriate public education to the student because of the failure to provide the student with further special education programs and services;
(iv) is not required to convene a meeting of the committee on special education or develop an IEP for the student for further provision of special education programs and services; and
(v) is not required to amend the student’s education records to remove any references to the student’s receipt of special education programs and services because of the revocation of consent.
(6) Consent for a ward of the State. If the student is a ward of the State and is not residing with the student's parent, the school district shall make reasonable efforts to obtain the informed consent from the parent of the student for an initial evaluation to determine whether the student is a student with a disability. The school district is not required to obtain informed consent from the parent of a student, as defined in section 200.1(ii) of this Part, for an initial evaluation to determine eligibility for special education services if:
(i) despite reasonable efforts to do so, the school district cannot discover the whereabouts of the parent of the student; or
(ii) the rights of the parents of the student have been terminated in accordance with State law; or
(iii) the rights of the parent to make educational decisions have been subrogated by a judge in accordance with State law and consent for an initial evaluation has been given by an individual appointed by the judge to represent the student.
(7) Consent for a student who is home instructed, pursuant to section 100.10 of this Title, or placed in a private school by parents at their own expense. If a parent of student who is home instructed or placed in a private school by their parents at their own expense does not provide consent for an initial evaluation or reevaluation, or the parent fails to respond to a request to provide consent, the school district may not continue to pursue those evaluations by using the due process procedures described in this section; and the school district is not required to consider the student as eligible for special education services.
(8) Students with disabilities who are covered by public benefits or insurance.
(i) Consent. Prior to accessing a student’s or parent’s public benefits or insurance for the first time, after providing notification to the student’s parents consistent with subparagraph (ii) of this paragraph, the school district must obtain the written consent of the parent, consistent with the confidentiality requirements of sections 99.30 and 300.622 of the Code of Federal Regulations (Code of Federal Regulations, 2012 edition, title 34, sections 99.30 and 300.622, Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402-0001; 2012 - available at the Office of Counsel, New York State Education Department, State Education Building, Room 148, 89 Washington Avenue, Albany, NY 12234), which consent must specify the personally identifiable information that may be disclosed (e.g., records or information about the services that may be provided to a particular student), the purpose of the disclosure (e.g., billing for special education services), and the agency to which the disclosure may be made (e.g., the State’s public benefits or insurance program, such as Medicaid or Supplemental Security Insurance); and specify that the parent understands and agrees that the public agency may access the parent’s or student’s public benefits or insurance to pay for services under this Part.
(ii) Notification. Prior to accessing a student’s or parent’s public benefits or insurance for the first time, and annually thereafter, the school district must provide the student's parents with written notification, consistent with the requirements of paragraph (a)(4) of this section, that includes:
(a) a statement of the parental consent provisions in subparagraph (i) of this paragraph;
(b) a statement that the parents are not required to sign up for or enroll in public benefits or insurance programs in order for their child to receive a free appropriate public education under part B of the Individuals with Disabilities Education Act;
(c) a statement that the parents are not required to incur an out-of-pocket expense, such as the payment of a deductible or co-pay amount, incurred in filing a claim for services pursuant to this Part;
(d) a statement that the school district may not use the student's benefits under a public benefits or insurance program if that use would:
(1) decrease available lifetime coverage or any other insured benefit;
(2) result in the family paying for services that would otherwise be covered by the public benefits or insurance program and that are required for the student outside of the time the student is in school;
(3) increase premiums or lead to the discontinuation of benefits or insurance; or
(4) risk loss of eligibility for home and community-based waivers, based on aggregate health-related expenditures;
(e) a statement that the parents have the right, pursuant to parts 99 and 300 of title 34 of the Code of Federal Regulations, to withdraw their consent to disclosure of their child’s personally identifiable information to the agency responsible for the administration of the State’s public benefits or insurance program (e.g., Medicaid) at any time; and
(f) a statement that the withdrawal of consent or refusal to provide consent under parts 99 and 300 of title 34 of the Code of Federal Regulations to disclose personally identifiable information to the agency responsible for the administration of the State’s public benefits or insurance program (e.g., Medicaid) does not relieve the school district of its responsibility to ensure that all required services are provided at no cost to the parents.
(9) Students with disabilities who are covered by private insurance. With regard to services required to provide a free appropriate public education to an eligible student under this Part, a school district may access the parents’ private insurance proceeds only if the parents provide consent consistent with section 200.1(l) of this Part. Each time the school district proposes to access the parents’ private insurance proceeds, the school district must obtain such parental consent, and inform the parents that their refusal to permit the school district to access their private insurance does not relieve the school district of its responsibility to ensure that all required services are provided at no cost to the parents.
(c) Meeting notice.
(1) Whenever the committee on special education proposes to conduct a meeting related to the development or review of a student's IEP, or the provision of a free appropriate public education to the student, the parent must receive notification in writing at least five days prior to the meeting. The meeting notice may be provided to the parent less than five days prior to the meeting to meet the timelines in accordance with Part 201 of this Title and in situations in which the parent and the school district agree to a meeting that will occur within five days. The parent may elect to receive the notice of meetings by an electronic mail (e-mail) communication if the school district makes such option available. Meeting notices issued during the 2011-12 school year, and thereafter, shall be on a form prescribed by the commissioner.
(2) Such notice shall:
(i) inform the parent(s) of the purpose, date, time, and location of the meeting and the name and title of those persons who will be in attendance at the meeting;
(ii) indicate that the parent(s) has the right to participate as a member of the committee on special education with respect to the identification, evaluation and educational placement of his or her child;
(iii) state that the parent(s) has the right to invite such individuals with knowledge or special expertise about his or her child, including related service personnel as appropriate, as determined by the parent(s);
(iv) for meetings of the committee on special education, inform the parent(s) of his or her right to request, in writing at least 72 hours before the meeting, the attendance of the school physician member and an additional parent member of the committee on special education at any meeting of such committee pursuant to section 4402(1)(b) of the Education Law and include a statement, prepared by the State Education Department, explaining the role of having the additional parent member attend the meeting;
(v) for meetings of the committee on preschool special education, inform the parent(s) of his or her right to request, in writing at least 72 hours before the meeting, the attendance of an additional parent member at any meeting of such committee pursuant to section 4410(3)(a)(1) of the Education Law and include a statement, prepared by the State Education Department, explaining the role of having the additional parent member attend the meeting;
(vi) if the meeting is being conducted by a subcommittee on special education, inform the parent(s) that, upon receipt of a written request from the parent, the subcommittee shall refer to the committee on special education any matter on which the parent(s) disagrees with the subcommittee's recommendation concerning a modification or change in the identification, evaluation, educational placement or provision of a free appropriate public education to the student; and
(vii) if the purpose of the meeting is to consider postsecondary goals and transition services, the meeting notice must also:
(a) indicate this purpose;
(b) indicate that the district will invite the student; and
(c) identify any other agency that will be invited to send a representative;
(viii) in the case of a child who was previously served under part C (early intervention services), inform the parent(s) of his or her right to request an invitation to an initial CPSE meeting be sent to the early intervention service coordinator or other representatives of the early intervention system to assist with the smooth transition of services.
(d) Parent participation in CSE meetings.
(1) Each school district shall take steps to ensure that one or both of the student's parents are present at each committee on special education meeting or are afforded the opportunity to participate, including:
(i) notifying the parent(s) of the meeting, consistent with subdivision (c) of this section prior to the meeting to ensure that he or she will have an opportunity to attend;
(ii) scheduling the meeting at a mutually agreed on time and place and in a location that is physically accessible to the parents; and
(iii) using other methods to ensure parent participation, including individual or conference telephone calls pursuant to paragraph (7) of this subdivision.
(2) A meeting does not include informal or unscheduled conversations involving school personnel and conversations on issues such as teaching methodology, lesson plans, or coordination of service provision. A meeting also does not include preparatory activities that school personnel engage in to develop a proposal or response to a parent proposal that will be discussed at a later meeting.
(3) A school district may conduct a CSE meeting without a parent in attendance if the school is unable to convince the parents that they should attend. In this case, the school must have a detailed record of its attempts, and the results of those attempts to arrange a mutually agreed on time and place.
(4) A decision may be made by the committee on special education without the involvement of the parents, if the school is unable to obtain the parents' participation in the decision. In this case, the school must have a record of its attempt to ensure their involvement.
(5) The school district must take whatever action is necessary to ensure that the parent understands the proceedings at the meetings of the committee on special education, including arranging for an interpreter for parents with deafness or whose native language is other than English.
(6) The parents of a student with a disability must be afforded an opportunity to inspect and review all education records with respect to the identification, evaluation, and educational placement of the student and the provision of a free appropriate public education to the student, in accordance with the requirements of 34 C.F.R. sections 300.613 through 300.625 (Code of Federal Regulations, 2009 edition, title 34, sections 300.613-300.625, Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402-0001; 2009 - available at the Office of Counsel, New York State Education Department, State Education Building, Room 148, 89 Washington Avenue, Albany, NY 12234).
(7) When conducting a meeting of the committee on special education, the school district and the parent may agree to use alternative means of participation, such as videoconferences or conference telephone calls.
(e) Confidentiality of personally identifiable data.
(1) Personally identifiable means:
(i) the name of the student, the student's parent, or other family member;
(ii) the address of the student;
(iii) a personal identifier, such as the student's social security number or student number; or
(iv) a list of personal characteristics or other information that would make it possible to identify the student with reasonable certainty.
(2) Each public school, public agency, approved private school, and impartial hearing officer subject to the provisions of this Part shall preserve the confidentiality of personally identifiable data, information or records pertaining to students with disabilities. Such confidentiality must be preserved in a manner consistent with the procedures adopted pursuant to section 200.2(b)(6) of this Part and/or in accordance with 20 USC 1232(g) and the provisions of part 99 of title 34 of the Code of Federal Regulations or its successor and sections 300.610 through 300.625. (United States Code, 2006 edition, volume 12, 2008; Superintendent of Documents, U.S. Government Printing Office, Stop SSOP, Washington, DC 20402-9328: 2004; Code of Federal Regulations, 2009 edition, title 34, part 99, Superintendent of Documents, U.S. Government Printing Office, Stop SSOP, Washington, DC 20402-0001; Code of Federal Regulations, 2009 edition, title 34, sections 300.610-300.625, Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402-0001; 2009 - available at the Office of Counsel, New York State Education Department, State Education Building, Room 148, 89 Washington Avenue, Albany, NY 12234).
(f) Procedural safeguards notice.
(1) A school district must use the procedural safeguards notice prescribed by the Commissioner of Education.
(2) The school district must ensure that the procedural safeguards notice is provided in the native language of the parent or other mode of communication used by the parent, unless it is clearly not feasible to do so. If the native language or other mode of communication of the parent is not a written language, the school district shall take steps to ensure that the notice is translated orally or by other means to the parent in his or her native language or other mode of communication; that the parent understands the content of the notice; and that there is written evidence that the requirements of this section have been met.
(3) A copy of such notice must be given to the parents of a student with a disability, at a minimum one time per year and also:
(i) upon initial referral or parental request for evaluation;
(ii) upon the first filing of a due process complaint notice to request mediation or an impartial hearing as described in subdivisions (h) and (j) of this section;
(iii) upon request by a parent;
(iv) upon a decision to impose a suspension or removal that constitutes a disciplinary change in placement pursuant to section 201.2(e) of this Title; and
(v) upon first receipt of a State complaint pursuant to subdivision (l) of this section.
(4) A school district may place a current copy of the procedural safeguards notice on its Internet website if such website exists.
(5) A parent of a student with a disability may elect to receive the procedural safeguards notice by an electronic mail (e-mail) communication if the school district makes such option available.
(g) Independent educational evaluations.
(1) Requests by parents. If the parent disagrees with an evaluation obtained by the school district, the parent has a right to obtain an independent educational evaluation at public expense. A parent is entitled to only one independent educational evaluation at public expense each time the school district conducts an evaluation with which the parent disagrees.
(i) If requested by the parent, the school district shall provide to parents, information about where an independent educational evaluation may be obtained, and the school district's criteria applicable for independent educational evaluations, as described in subparagraph (ii) of this paragraph.
(ii) The criteria under which the evaluation is obtained, including the location of the evaluation and the qualifications of the examiner, shall be the same as the criteria which the school district uses when it initiates an evaluation, to the extent those criteria are consistent with the parent's right to an independent educational evaluation. A school district may not impose additional conditions or timelines related to obtaining an independent educational evaluation at public expense.
(iii) If a parent requests an independent educational evaluation at public expense, the school district may ask for the parent's reason why he or she objects to the public evaluation.
(a) The explanation by the parent in subparagraph (iii) of this paragraph may not be required and the school district may not unreasonably delay either providing the independent educational evaluation at public expense or filing a due process complaint notice to request a hearing to defend the public evaluation.
(iv) If a parent requests an independent educational evaluation at public expense, the school district must, without unnecessary delay, either ensure an independent educational evaluation is provided at public expense or file a due process complaint notice to request a hearing to show that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria.
(v) If the school district files a due process complaint notice to request an impartial hearing and the final decision is that the school district's evaluation is appropriate, or that the evaluation obtained by the parent did not meet school district criteria, the parent has the right to an independent educational evaluation, but not at public expense.
(vi) If the parent obtains an independent educational evaluation at public expense or shares with the school district an evaluation obtained at private expense, the results of the evaluation:
(a) must be considered by the school district, if it meets the school district's criteria, in any decisions made with respect to the provision of a free appropriate public education for the student; and
(b) may be presented by any party as evidence at an impartial hearing for that student.
(2) Requests for evaluations by hearing officers. If a hearing officer requests an independent educational evaluation as part of a hearing, the cost of the evaluation must be at public expense.
(h) Mediation.
(1) Each school district must ensure that procedures are established and implemented to allow parties to resolve disputes involving any matter for which an impartial due process hearing may be brought through a mediation process, including matters arising prior to the filing of a due process complaint notice. Such procedures must ensure that:
(i) the mediation process is voluntary on the part of the parties;
(ii) the mediation process is not used to deny or delay a parent's right to a hearing on the parent's due process complaint or to deny any other rights afforded under this Part;
(iii) the mediation session is conducted by a qualified and impartial mediator, as defined in section 200.1(dd) of this Part, who is trained in effective mediation techniques, is knowledgeable in laws and regulations relating to the provision of special education services and who is selected by the community dispute resolution center on a random, i.e., rotation basis or, if not selected on a random basis, then by mutual agreement of both parties. An individual who serves as a mediator may not be the employee of any school district of State agency that is involved in the education or care of the student and must not have a personal or professional interest that conflicts with the individual's objectivity;
(iv) each session in the mediation process is scheduled in a timely manner and is held in a location that is convenient to the parties to the dispute;
(v) discussions that occur during the mediation process must be confidential and may not be used as evidence in any subsequent due process hearings or civil proceedings; and
(vi) in the case that a resolution is reached to resolve the complaint through the mediation process, the parties shall execute a legally binding written agreement that sets forth the resolution and that states that all discussions that occurred during the mediation process shall remain confidential and may not be used as evidence in any subsequent due process hearing or civil proceeding of any Federal or State court. The agreement shall be signed by both the parent and a representative of the school district who has the authority to bind the school district. The written, signed agreement is enforceable in any State court of competent jurisdiction or in a district court of the United States.
(2) Opportunity to meet with a disinterested party. A school district may establish procedures that provide parents and schools who elect not to use the mediation process the opportunity to meet, at a time and location convenient to the parents, with a disinterested party who is from a community dispute resolution center who would explain the benefits of the mediation process, and encourage the parents to use the process; except that, a school district may not deny or delay a parent's right to a due process hearing under this section if the parent elects not to participate in this meeting.
(3) If the written agreement reached by the parties in mediation is inconsistent with the student's IEP then the student's IEP must be immediately amended to be consistent with the mediation agreement.
(4) Mediation, including meetings with the parent(s) described in paragraph (2) of this subdivision, shall be provided by community dispute resolution centers through a contract with the State Education Department.
(5) When conducting meetings and carrying out administrative matters under this subdivision, the parent and the school district may agree to use alternative means of meeting participation, such as video conferences and conference calls.
(i) Due process complaint notification requirements.
(1) A parent or school district may file a due process complaint with respect to any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student. The party presenting the complaint, or the attorney representing such party, shall provide a written due process complaint notice to the party, which shall include:
(i) the name of the student;
(ii) the address of the residence of the student or in the case of a homeless student as defined in section 200.1(hhh) of this Part, available contact information for the student and the name of the school the student is attending;
(iii) the name of the school the student is attending;
(iv) a description of the nature of the problem of the student relating to such proposed or refused initiation or change, including facts relating to such problem; and
(v) a proposed resolution of the problem to the extent known and available to the party at the time.
(2) A party may not have an impartial due process hearing until the party, or the attorney representing the party, files a due process complaint notice that meets the requirements of paragraph (1) of this subdivision.
(3) The due process complaint notice shall be deemed to be sufficient unless the party receiving the notice notifies the impartial hearing officer, appointed in accordance with the rotational selection process in section 200.2(e)(1) of this Part and the requirements in subparagraphs (j)(3)(i) and (ii) of this section, and the other party in writing, within 15 days of the receipt of the due process complaint notice, that the receiving party believes the notice has not met the requirements of paragraph (1) of this subdivision. No party may challenge the sufficiency of a due process complaint using this procedure for expedited impartial hearings conducted pursuant to section 201.11 of this Title.
(4) School district response to the parent.
(i) If the school district has not sent a prior written notice pursuant to subdivision (a) of this section to the parent regarding the subject matter in the parent's due process complaint notice, such school district shall, within 10 days of receiving the complaint, send to the parent a response that shall include:
(a) an explanation of why the school district proposed or refused to take the action raised in the complaint;
(b) a description of other options that the committee on special education considered and the reasons why those options were rejected;
(c) a description of each evaluation procedure, assessment, record or report the school district used as a basis for the proposed or refused action; and
(d) a description of the factors that are relevant to the school district's proposal or refusal.
(ii) A response filed by the school district pursuant to this paragraph shall not be construed to preclude such school district from asserting that the parent's due process complaint notice was insufficient where appropriate.
(5) Other party response.
(i) Except as provided in paragraph (4) of this subdivision, the noncomplaining party shall, within 10 days of receiving the due process complaint notice, send to the complaining party a response that specifically addresses the issues raised in the notice.
(6) Allegation of insufficient due process complaint notice.
(i) Timing. If the party receiving the due process complaint notice believes the notice has not met the requirements of paragraph (1) of this subdivision, it shall notify the impartial hearing officer and the other party in writing within 15 days of receiving the due process complaint notice.
(ii) Determination. Within five days of the receipt of the notice of insufficiency, the impartial hearing officer shall make a determination on the face of the notice of whether the notification meets the requirements of paragraph (1) of this subdivision and shall immediately notify the parties in writing of such determination.
(7) Amended due process complaint notice.
(i) 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 paragraph (j)(2) of this section; or
(b) the impartial hearing officer grants permission, except that the impartial hearing officer may only grant such permission at any time not later than five days before an impartial due process hearing commences.
(ii) The applicable timelines for an impartial due process hearing, including the timelines for the resolution process shall recommence at the time the party files an amended due process complaint notice.
(j) Impartial due process hearings.
(1) A parent or a school district must submit a complete due process complaint notice pursuant to subdivision (i) of this section prior to initiation of an impartial due process 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.
(i) Timeline for requesting an impartial hearing. The request for an impartial due process hearing must be submitted within two-years of the date the parent or agency knew or should have known about the alleged action that forms the basis of the complaint, except that the two-year timeline shall not apply to a parent if the parent was prevented from requesting the impartial hearing due to specific misrepresentations by the school district that it had resolved the problem forming the basis of the complaint or the school district's withholding of information from the parent that was required to be provided to the parent under this Part or under Part 201 of this Title.
(ii) Subject matter of the impartial due process hearing. The party requesting the impartial due process hearing shall not be allowed to raise issues at the impartial due process hearing that were not raised in the notice filed under subdivision (i) of this section, unless the other party agrees otherwise.
(iii) The school district shall inform the parent in writing of the availability of mediation and of any free or low-cost legal and other relevant services, such as parent centers, available in the area:
(a) when an impartial due process hearing is requested; or
(b) at the parent's request.
(2) Resolution process.
(i) Resolution meeting. Prior to the opportunity for an impartial due process hearing under paragraph (1) of this subdivision, the school district shall, within 15 days of receiving the due process complaint notice from the parent, convene a meeting with the parents and the relevant member or members of the committee on special education, as determined by the school district and the parent, who have specific knowledge of the facts identified in the complaint, which shall include a representative of the school district who has decision-making authority on behalf of the school district and may not include an attorney of the school district unless the parent is accompanied by an attorney, where the parents of the student discuss their complaint and the facts that form the basis of the complaint, and the school district has the opportunity to resolve the complaint. The school district shall take steps to ensure that one or both of the parents of the student with a disability are present at the resolution meeting, including notifying parents of the meeting early enough to ensure that they will have the opportunity to attend and scheduling the resolution meeting at a mutually agreed on time and place and in a location that is physically accessible to the parents.
(ii) When conducting meetings and carrying out administrative matters (such as scheduling) under this paragraph, the parent and the school district may agree to use alternative means of meeting participation, such as video conferences and conference calls.
(iii) Waiver of resolution process. The parent and the school district may agree, in writing, to waive the resolution process or agree to use the mediation process described in subdivision (h) of this section to resolve the dispute.
(iv) Written settlement agreement. If, during the resolution process, the parent and school district reach an agreement to resolve the complaint, the parties shall execute a legally binding agreement that is signed by both the parent and a representative of the school district who has the authority to bind the school district. Such agreement shall be enforceable in any State court of competent jurisdiction or in a district court of the United States. A party may void such agreement within three business days of the agreement's execution.
(v) Resolution period. If the school district has not resolved the due process complaint to the satisfaction of the parents within 30 days of the receipt of the due process complaint notice, the impartial due process hearing may occur consistent with the time period provided in subparagraph (3)(iii) of this subdivision.
(vi) Failure to convene or participate. Except where the parties have jointly agreed to waive the resolution process or use mediation, the failure of a parent filing a due process complaint to participate in the resolution meeting will delay the timeline for the resolution process and due process hearing until the meeting is held.
(a) If the school district is unable to obtain the participation of the parent in the resolution meeting after reasonable efforts have been made (and documented), the school district may, at the conclusion of the 30-day period, request that an impartial hearing officer dismiss the parents' due process complaint.
(b) If the school district fails to hold the resolution meeting within 15 days of receipt of the parents' due process complaint or fails to participate in the resolution meeting, the parent may seek the intervention of the impartial hearing officer to begin the due process hearing timeline.
(3) Initiation of an impartial due process hearing. Upon receipt of the parent's due process complaint notice, or the filing of the school district's due process complaint notice, the board of education shall arrange for an impartial due process hearing to be conducted in accordance with the following rules:
(i) Except as provided in subparagraph (ii) of this paragraph and paragraph (6) of this subdivision, appointment from the impartial hearing officer list must be made in accordance with the rotational selection process established in section 200.2(e)(1) of this Part and the administrative procedures established by the board of education pursuant to section 200.2(b)(8) 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 due process complaint notice or mailing of the due process complaint notice to the parent.
(b) The impartial hearing officer may not accept appointment unless he or she is available to make a determination of sufficiency of a due process complaint notice within five days of receiving such a request and to initiate the hearing within the first 14 days of the time period specified in clause (iii)(a) or (b) of this paragraph.
(c) The impartial hearing officer shall not accept appointment if he or she is serving as the attorney in a due process complaint in the same school district or has served as the attorney in a due process complaint in the same school district within a two-year period of time preceding the offer of appointment; or if he or she is an individual with special knowledge or training with respect to the problems of children with disabilities who has accompanied and advised a party from the same school district in a due process complaint within a two-year period.
(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.
(a) Consolidation and multiple due process hearing requests. For a subsequent due process complaint notice filed while a due process complaint is pending before an impartial hearing officer involving the same parties and student with a disability:
(1) once appointed to a case in accordance with the rotational selection process established in section 200.2(e)(1) of this Part, the impartial hearing officer with the pending due process complaint shall be appointed to a subsequent due process complaint involving the same parties and student with a disability, unless that impartial hearing officer is unavailable;
(2) the impartial hearing officer may consolidate the new complaint with the pending complaint or provide that the new complaint proceed separately as an individual complaint before the same impartial hearing officer;
(3) consolidation of such complaints or the denial of such consolidation shall be by written order;
(4) when considering whether to consolidate one or more separate requests for due process, in the interests of judicial economy and the interests of the student, the impartial hearing officer shall consider relevant factors that include, but are not limited to:
(i) the potential negative effects on the child’s educational interests or well-being which may result from the consolidation;
(ii) any adverse financial or other detrimental consequence which may result from the consolidation of the due process complaints; and
(iii) whether consolidation would:
(A) impede a party’s right to participate in the resolution process prescribed in paragraph (2) of this subdivision;
(B) prevent a party from receiving a reasonable opportunity to present its case in accordance with subparagraph (xiii) of this paragraph; or
(C) prevent the impartial hearing officer from timely rendering a decision pursuant to paragraph (5) of this subdivision.
(5) If the due process complaints are consolidated, the timeline for issuance of a decision in the earliest pending due process complaint shall apply.
(6) Nothing in this section shall be construed to preclude a parent from filing a due process complaint on an issue separate from a due process complaint already filed.
(iii) Timeline for commencing the hearing or pre-hearing conference. Unless an extension is granted pursuant to subparagraph (5)(i) of this subdivision:
(a) when a school district files a due process complaint notice, the hearing or pre-hearing conference shall commence within the first 14 days after the date upon which the impartial hearing officer is appointed;
(b) when a parent files a due process complaint notice, the hearing or a pre-hearing conference shall commence within the first 14 days after:
(1) the date upon which the impartial hearing officer receives the parties' written waiver of the resolution meetings; or
(2) the impartial hearing officer receives the parties' written confirmation that a mediation or resolution meeting was held but no agreement could be reached; or
(3) the expiration of the 30-day resolution period, whichever shall occur first, unless:
(4) the parties agree in writing to continue mediation at the end of the 30-day resolution period, in which case, the hearing or pre-hearing conference shall commence within the first 14 days after the impartial hearing officer is notified in writing that either party withdrew from mediation.
(iv) The impartial hearing officer shall be authorized to administer oaths and to issue subpoenas in connection with the administrative proceedings before him/her.
(v) A written or, at the option of the parents, electronic verbatim record of the proceedings before the impartial hearing officer shall be maintained and made available to the parties.
(vi) At all stages of the proceeding, where required, interpreters of the deaf, or interpreters fluent in the native language of the student's parent, shall be provided at district expense.
(vii) The parties to the proceeding may be accompanied and advised by legal counsel and by individuals with special knowledge or training with respect to the problems of students with disabilities. At all stages of the proceeding, the impartial hearing officer may assist an unrepresented party by providing information relating only to the hearing process. Nothing contained in this subparagraph shall be construed to impair or limit the authority of an impartial hearing officer to ask questions of counsel or witnesses for the purpose of clarification or completeness of the record.
(viii) In the event the impartial hearing officer requests an independent educational evaluation as part of a hearing, the cost of the evaluation must be at public expense.
(ix) In the event the impartial hearing officer determines that the interests of the parent are opposed to or are inconsistent with those of the student, or that for any other reason the interests of the student would best be protected by appointment of a guardian ad litem, the impartial hearing officer shall appoint a guardian ad litem to protect the interests of such student, unless a surrogate parent shall have previously been assigned. The impartial hearing officer shall ensure that the procedural due process rights afforded to the student's parent pursuant to this section are preserved throughout the hearing whenever a guardian ad litem is appointed.
(x) The hearing shall be conducted at a time and place which is reasonably convenient to the parent and student involved and shall be closed to the public unless the parent requests an open hearing.
(xi) A prehearing conference with the parties may be scheduled. Such conference may be conducted by telephone. A transcript or a written summary of the prehearing conference shall be entered into the record by the impartial hearing officer. A prehearing conference is for the purposes of:
(a) simplifying or clarifying the issues;
(b) establishing date(s) for the completion of the hearing;
(c) identifying evidence to be entered into the record;
(d) identifying witnesses expected to provide testimony; and/or
(e) addressing other administrative matters as the impartial hearing officer deems necessary to complete a timely hearing.
(xii) The parents, school authorities, and their respective counsel or representative, shall have an opportunity to present evidence, compel the attendance of witnesses and to confront and question all witnesses at the hearing. Each party shall have the right to prohibit the introduction of any evidence the substance of which has not been disclosed to such party at least five business days before the hearing.
(a) Additional disclosure of information. Not less than five business days prior to a hearing, each party shall disclose to all other parties all evaluations completed by that date and recommendations based on the offering party's evaluations that the party intends to use at the hearing. An impartial hearing officer may bar any party that fails to comply with this requirement from introducing the relevant evaluation or recommendation at the hearing without the consent of the other party.
(b) The impartial hearing officer, wherever practicable, shall enter into the record a stipulation of facts and/or joint exhibits agreed to by the parties.
(c) The impartial hearing officer may receive any oral, documentary or tangible evidence except that the impartial hearing officer shall exclude evidence that he or she determines to be irrelevant, immaterial, unreliable or unduly repetitious. The impartial hearing officer may receive testimony by telephone or video conference, provided that such testimony shall be made under oath and shall be subject to cross examination.
(d) The impartial hearing officer may limit examination of a witness by either party whose testimony the impartial hearing officer determines to be irrelevant, immaterial or unduly repetitious.
(e) The impartial hearing officer may limit the number of additional witnesses to avoid unduly repetitious testimony.
(f) The impartial hearing officer may take direct testimony by affidavit in lieu of in- hearing testimony, provided that the witness giving such testimony shall be made available for cross examination.
(g) The impartial hearing officer may receive memoranda of law from the parties not to exceed 30 pages in length, with typed material in minimum 12-point type (footnotes minimum 10-point type) and not exceeding 6½ by 9½ inches on each page.
(h) The impartial hearing officer may conduct the impartial hearing by video conference during a declared state of emergency issued by the Governor pursuant to an Executive Order, provided that all personally identifiable data, information or records pertaining to students with disabilities during such hearing shall be subject to the requirements of paragraph (e)(2) of this section.
(i) The impartial hearing officer may conduct the impartial hearing by video conference or teleconference with consent of the parent which may be obtained at a pre-hearing conference, or at a minimum of 10 days before the scheduled hearing date, provided that all personally identifiable data, information or records pertaining to students with disabilities during such hearing shall be subject to the requirements of paragraph (e)(2) of this section.
(xiii) Each party shall have up to one day to present its case unless the impartial hearing officer determines that additional time is necessary for a full, fair disclosure of the facts required to arrive at a decision. Additional hearing days, if required, shall be scheduled on consecutive days wherever practicable.
(xiv) The parents shall have the right to determine whether the student shall attend the hearing.
(xv) 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.
(xvi) 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 Special Education of the State Education Department in a format and at an interval prescribed by the commissioner.
(xvii) When carrying out administrative matters relating to an impartial due process hearing, such as scheduling, exchange of witness lists and status conferences, the parent and the school district may agree to use alternative means of meeting participation, such as video conferences and conference calls.
(4) Decision of the impartial hearing officer.
(i) In general. Subject to subparagraph (ii) of this paragraph, a decision made by an impartial hearing officer shall be made on substantive grounds based on a determination of whether the student received a free appropriate public education.
(ii) Procedural issues. In matters alleging a procedural violation, an impartial hearing officer may find that a student did not receive a free appropriate public education only if the procedural inadequacies impeded the student's right to a free appropriate public education, significantly impeded the parent's opportunity to participate in the decision-making process regarding the provision of a free appropriate public education to the parent's child, or caused a deprivation of educational benefits. Nothing in this paragraph shall be construed to preclude an impartial hearing officer from ordering a school district to comply with procedural requirements under this Part and Part 201 of this Title.
(iii) Settlement agreements. An impartial hearing officer shall not issue a so-ordered decision on the terms of a settlement agreement reached by the parties in other matters not before the impartial hearing officer in the due process complaint or amended due process complaint. Nothing in this subdivision shall preclude a party from seeking to admit a settlement agreement or administrative decision into evidence.
(5) Timeline to render a decision. Except as provided in section 200.16(h)(9) of this Part and section 201.11 of this Title if a school district files the due process complaint, 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 and to the board of education not later than 45 days from the day after the public agency’s due process complaint is received by the other party and the State Education Department. Except as provided in section 200.16(h)(9) of this Part and section 201.11 of this Title, if the parent files the due process complaint notice, the decision is due not later than 45 days from the day after one of the following events, whichever shall occur first: (a) both parties agree in writing to waive the resolution meeting; (b) after either the mediation or resolution meeting starts but before the end of the 30-day period, the parties agree in writing that no agreement is possible; (c) if both parties agree in writing to continue the mediation at the end of the 30-day resolution period, but later, the parent or public agency withdraws from the mediation process; or (d) the expiration of the 30-day resolution period. In cases where extensions of time have been granted beyond the applicable required timelines, the decision must be rendered and mailed no later than 14 days from the date the impartial hearing officer closes the record. The date the record is closed shall be indicated in the decision. Whether the parent or school district filed the due process complaint, the impartial hearing officer shall render a decision in a format consistent with State Education Department guidelines wherein all personally identifiable data, information or records pertaining to students with disabilities shall be subject to the requirements of paragraph (e)(2) of this section. After a final decision has been rendered, the impartial hearing officer shall promptly transmit the record to the school district together with a certification of the materials included in the record. The record of the hearing and the findings of fact and the decision shall be provided at no cost to the parents. Within 15 days of mailing the decision to the parties, the impartial hearing officer shall submit the decision to the Office of Special Education of the State Education Department. All personally identifiable information, in accordance with the guidelines provided by the commissioner, shall be deleted from the copy forwarded to the Office of Special Education.
(i) An impartial hearing officer may grant specific extensions of time beyond the periods set out in this paragraph, in subparagraph (3)(iii) of this subdivision, or in section 200.16(h)(9) of this Part at the request of either the school district or the parent. The impartial hearing officer shall not solicit extension requests or grant extensions on his or her own behalf or unilaterally issue extensions for any reason. Each extension shall be for no more than 30 days; except that due to the COVID-19 crisis, an extension may be granted beyond 30 days but no more than 60 days. Not more than one extension at a time may be granted. The reason for each extension must be documented in the hearing record.
(ii) The impartial hearing officer may grant a request for an extension only after fully considering the cumulative impact of the following factors:
(a) whether the delay in the hearing will positively contribute to, or adversely affect, the child’s educational interest or well-being;
(b) whether a party has been afforded a fair opportunity to present its case at the hearing in accordance with the requirements of due process;
(c) any adverse financial or other detrimental consequences likely to be suffered by a party in the event of delay;
(d) whether there has already been a delay in the proceeding through the actions of one of the parties.
(iii) Absent a compelling reason or a specific showing of substantial hardship, a request for an extension shall not be granted because of school vacations, a lack of availability resulting from the parties' and/or representatives' scheduling conflicts, avoidable witness scheduling conflicts or other similar reasons. Upon a finding of good cause based on the likelihood that a settlement may be reached, an extension may be granted for settlement discussions between the parties. The impartial hearing officer shall not rely on the agreement of the parties as a basis for granting an extension. No extension shall be granted after the record close date.
(iv) The impartial hearing officer shall promptly respond in writing to each request for an extension and shall set forth the facts relied upon for each extension granted. The response shall become part of the record. The impartial hearing officer may render an oral decision to an oral request for an extension if the discussions are conducted on the record, but shall subsequently provide that decision in writing and include it as part of the record. For each extension granted, the impartial hearing officer shall set a new date for rendering his or her decision, notify the parties in writing of such date, and as required, revise the schedule of remaining hearing dates set forth in the written prehearing order issued pursuant to clause (3)(xi)(b) of this subdivision to ensure that the impartial hearing officer's decision is issued by the revised decision due date.
(v) The impartial hearing officer shall determine when the record is closed and notify the parties of the date the record is closed. The decision of the impartial hearing officer shall be based solely upon the record of the proceeding before the impartial hearing officer, and shall set forth the reasons and the factual basis for the determination. The decision shall reference the hearing record to support the findings of fact. The impartial hearing officer shall attach to the decision a list identifying each exhibit admitted into evidence. Such list shall identify each exhibit by date, number of pages and exhibit number or letter. In addition, the decision shall include an identification of all other items the impartial hearing officer has entered into the record. The decision shall also include a statement advising the parents and the board of education of the right of any party involved in the hearing to obtain a review of such a decision by the State review officer in accordance with subdivision (k) of this section. The decision of the impartial hearing officer shall be binding upon both parties unless appealed to the State review officer.
(vi) For purposes of this section, the record shall include copies of:
(a) the due process complaint notice and any response to the complaint pursuant to paragraphs (i)(4) and (5) of this section;
(b) all briefs, arguments or written requests for an order filed by the parties for consideration by the impartial hearing officer;
(c) all written orders, rulings or decisions issued in the case including an order granting or denying a party’s request for an order and an order granting or denying an extension of the time in which to issue a final decision in the matter;
(d) any subpoenas issued by the impartial hearing officer in the case;
(e) all written and electronic transcripts of the hearing;
(f) any and all exhibits admitted into evidence at the hearing, including documentary, photographic, audio, video, and physical exhibits;
(g) any other documentation deemed relevant and material by the impartial hearing officer; and
(h) any other documentation as may be otherwise required by this section.
(6) Withdrawal of a due process complaint. A due process complaint may be withdrawn by the party requesting a hearing as follows:
(i) Prior to the commencement of the hearing, a voluntary withdrawal by the party requesting the hearing shall be without prejudice unless the parties otherwise agree. For purposes of this paragraph, the commencement of the hearing shall not mean the initial prehearing conference if one is conducted, but shall mean the first date the hearing is held after such conference.
(ii) Except for withdrawals in accordance with subparagraph (i) of this paragraph, a party seeking to withdraw a due process complaint shall immediately notify the impartial hearing officer and the other party. The impartial hearing officer shall issue an order of termination. A withdrawal shall be presumed to be without prejudice except that the impartial hearing officer may, at the request of the other party and upon notice and an opportunity for the parties to be heard, issue a written decision that the withdrawal shall be with prejudice. The decision of an impartial hearing officer that a withdrawal shall be with or without prejudice is binding upon the parties unless appealed to the State review officer.
(iii) The withdrawal of a due process complaint does not alter the timeline pursuant to subparagraph (1)(i) of this subdivision for requesting an impartial hearing.
(iv) If the party subsequently files a due process complaint 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 that was previously withdrawn by the party, the school district shall appoint the same impartial hearing officer appointed to the prior complaint unless that impartial hearing officer is no longer available to hear the re-filed due process complaint.
(v) Nothing in this section shall preclude an impartial hearing officer, in his or her discretion, from issuing a decision in the form of a consent order that resolves matters in dispute in the proceeding.
(k) Appeal to a State review officer of the State Education Department.
(1) Any party aggrieved by the findings of fact and the decisions of an impartial hearing officer rendered in accordance with subdivision (j) of this section may appeal to a State review officer of the State Education Department. Such a review shall be initiated and conducted in accordance with the provisions of Part 279 of this Title.
(2) The State review officer must ensure that, not later than 30 days after the receipt of a request for a review, a final decision is reached and a copy of the written decision, or at the option of the parents, electronic findings of fact and the decisions, is mailed to each of the parties, except that a State review officer may grant specific extensions of time beyond the periods set out in this paragraph at the request of either party. The reason for the extension must be documented in the record.
(3) The written decision of the State review officer shall be final, provided that either party may seek judicial review by means of a proceeding pursuant to article 4 of the Civil Practice Law and Rules or 20 U.S.C. section 1415.
(l) State complaint procedures.
(1) Filing a complaint.
(i) An organization or individual, including those from another state, may file a signed written complaint under the procedures described in this paragraph:
(ii) The complaint must include:
(a) a statement that the school district or the State Education Department has violated a Federal or State law or regulation relating to the education of students with disabilities; and
(b) the facts upon which the statement is based.
(c) the signature and contact information for the complainant; and
(d) if alleging violations with respect to a specific student:
(1) the name and address of the residence of the student;
(2) the name of the school the student is attending;
(3) in the case of a homeless child or youth as defined in section 200.1(hhh) of this Part, available contact information for the student, and the name of the school the student is attending;
(4) a description of the nature of the problem of the student, including facts relating to the problems; and
(5) a proposed resolution of the problem to the extent known and available to the party at the time the complaint is filed.
(iii) Limitation of time for filing a complaint.
(a) The complaint must allege a violation that occurred not more than one year prior to the date that the State complaint is received.
(iv) The original signed complaint shall be filed with the Office of Special Education, New York State Education Department, State Education Building, Room 307, 89 Washington Avenue, Albany, NY 12234.
(v) The party filing the State complaint must forward a copy of the State complaint to the school district or public agency serving the student at the same time the party files the State complaint with the State Education Department.
(vi) The school district, or public agency when appropriate, must provide a procedural safeguards notice to the parent filing the State complaint upon receipt of the parent's first State complaint in a school year.
(2) Complaint process. Upon receipt of a complaint the State Education Department:
(i) shall provide complainant written notice of receipt of the complaint and the complainant's right to submit additional information, either orally or in writing, regarding the allegations in the complaint;
(ii) may require a school district or other public agency to submit a written reply to the complaint which could include, at the discretion of the school district or other public agency, a proposal to resolve the complaint or notification to the department that the parent who has filed the State complaint and the school district or other public agency have agreed to voluntarily engage in mediation;
(iii) may conduct an on-site investigation where the department determines such investigation is necessary;
(iv) shall review all relevant information; and
(v) shall issue a written final decision that:
(a) addresses each allegation in the complaint;
(b) contains findings of fact and conclusions;
(c) sets forth the reasons for the final decision;
(d) upon a finding of a violation of a Federal or State law or regulation relating to the education of students with disabilities, includes, if necessary for implementation of the decision:
(1) technical assistance activities;
(2) negotiations; and
(3) corrective actions to achieve compliance;
(e) upon a finding of failure to provide appropriate services to an individual student with a disability, includes:
(1) remediation of the denial of services, including, as appropriate, the awarding of monetary reimbursement or other corrective action appropriate to the needs of the student; and
(2) appropriate future provision of services for all students with disabilities;
(vi) shall issue the decision in subparagraph (v) of this paragraph within 60 days of receipt of the complaint except:
(a) where exceptional circumstances exist with respect to a particular complaint; or
(b) when the parent and school district or other public agency involved agree to extend the time to engage in mediation pursuant to section 200.5(h) of this Part;
(vii) shall set aside any part of the complaint that is currently being addressed in an impartial hearing held pursuant to Education Law section 4404; and
(viii) shall, where an issue raised in a complaint has been previously decided in an impartial hearing held pursuant to Education Law section 4404 involving the same parties, notify the complainant that the impartial hearing decision is binding.
(3) Nothing in this section shall abrogate the right of an individual student with a disability to due process under Education Law section 4404, including the right to initiate an impartial hearing to address issues previously raised in a complaint decided pursuant to this section.
(4) Where a complaint involves the rights of an individual student under Education Law, article 89, upon receipt of an adverse decision rendered pursuant to this section, the complainant or the school district may initiate an impartial hearing pursuant to Education Law, section 4404(1) to address the issues raised in the complaint.
(m) Student's status during proceedings.
(1) Except as otherwise provided in paragraph (2) of this subdivision and section 200.16 of this Part and Part 201 of this Title, during the pendency of any proceedings conducted pursuant to subdivision (j) or (k) of this section, unless the local board of education and the parents otherwise agree, the student shall remain in the then current placement of such student. During the pendency for any due process proceeding relating to the evaluation and initial placement in special education, unless the local board of education and the parents otherwise agree, the student shall not be evaluated and shall remain in the then current educational placement of such student or, if applying for initial admission to a public school, shall be placed in the public school program until all such proceedings have been completed.
(2) If a decision of a State review officer, pursuant to subdivision (k) of this section, agrees with the student's parents that a change of placement is appropriate, that placement must be treated as an agreement between the State or school district and the parents for purposes of pendency during any subsequent appeals pursuant to paragraph (k)(3) of this section.
(3) If the complaint involves an application for initial services as a preschool student with a disability from a child who is transitioning from early intervention to preschool special education and related services, the school district is not required to provide the early intervention services that the child had been receiving. If the child is found eligible for special education and related services as a preschool student with a disability and the parent consents to the initial provision of special education and related services consistent with section 200.16(h)(7) of this Part, then the school district must provide those special education and related services that are not in dispute between the parent and the school district.
(n) Surrogate parents.
(1) Duty of the board of education. The board of education or other appropriate body shall select a surrogate parent from a list of individuals who are eligible and willing to serve as surrogate parents in order to ensure that the rights of a student are protected if:
(i) no parent, as defined in section 200.1(ii) of this Part, can be identified;
(ii) the school district, after reasonable efforts, cannot discover the whereabouts of a parent, or the student is an unaccompanied homeless youth, as such term is defined in section 100.2(x)(1)(vi) of this Title; or
(iii) the student is a ward of the State and does not have a parent as defined in section 200.1(ii) of this Part or the rights of the parent to make educational decisions on behalf of the student have been subrogated by a judge in accordance with State law.
(2) Qualifications. Persons selected as surrogate parents:
(i) shall not be officers, employees or agents of the local school district or State Education Department or other agency involved in the education or care of the student. A school district may select as a surrogate a person who is an employee of a nonpublic agency that only provides noneducational care for the student and who meets the standards in this paragraph. A surrogate parent is not an employee of the agency solely because he or she is paid by the agency to serve as a surrogate parent;
(ii) shall have no other interest which could conflict with their primary allegiance to the student they would represent; and
(iii) shall have knowledge and skills that ensure adequate representation of the student.
(3) Procedures for assigning surrogates. Assignment of a surrogate parent to a particular student shall be made in accordance with the following procedures:
(i) Any person whose work involves education or treatment of students and who knows of a student who may need special education services, and who knows that the student meets the criteria in paragraph (1) of this subdivision, may file a request for assignment of a surrogate parent to the student with the committee on special education to which the student may be appropriately referred.
(ii) The committee on special education shall send notice of the possible need for a surrogate parent to the adult in charge of the student's place of residence and to the parents at their last known address.
(iii) The committee on special education shall determine whether the student's parents can be identified or located, or whether the student is a ward of the State, consistent with paragraph (1) of this subdivision. Where the student is known to the school district to be a ward of the State, such reasonable efforts to discover the whereabouts of a parent shall include consultation with the local social services district or other agency responsible for the care of the student. The determination of the need for a surrogate parent shall be completed within a reasonable time following the receipt of a referral for an initial evaluation, reevaluation or services. If the committee on special education finds that there is a need for a surrogate parent, a surrogate parent who meets the qualifications identified in paragraph (2) of this subdivision shall be selected from the list approved by the board of education, except as otherwise provided in subparagraphs (v) through (vii) of this paragraph, within 10 business days of the date of the determination by the committee of the need for the surrogate parent.
(iv) A surrogate parent shall be assigned to represent the student in all matters relating to the identification, evaluation, and educational placement of the student and the provision of a free appropriate public education to the student for as long as a surrogate parent is required under this Part.
(v) The foster parent of the student, who otherwise meets the qualifications in paragraph (2) of this subdivision, may be appointed as the surrogate parent of the student without being appointed from a list approved by the board of education.
(vi) The surrogate parent alternatively may be appointed by the judge overseeing the child's case, provided that the surrogate parent meets the requirements in paragraph (2) of this subdivision. The individual appointed by the judge need not be appointed from a list approved by the board of education.
(vii) Unaccompanied homeless youth. In the case of a child who is an unaccompanied homeless youth, appropriate staff of emergency shelters, transitional shelters, independent living programs and street outreach programs may be appointed as temporary surrogate parents without regard to paragraph (2) of this subdivision, until a surrogate can be appointed that meets the appropriate qualifications.
8 CRR-NY 200.5
Current through July 15, 2021
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