(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] one year of practice and/or experience in the areas of education, special education, disability rights [or], civil rights or administrative law; or be an individual certified by the State of New York as an impartial hearing officer on September 1, 2001;

2. Paragraph (2) of subdivision (e) of section 200.5 of the Regulations of the Commissioner of Education is amended to read as follows:

(2) Each public school, public agency [and], 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).

3. Clause (c) of subparagraph (xii) of paragraph (3) of subdivision (j) of section 200.5 of the Regulations of the Commissioner of Education is amended to read as follows:

(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.

4. Subparagraph (xii) of paragraph (3) of subdivision (j) of section 200.5 of the Regulations of the Commissioner of Education is amended by adding a new clause (i) to read as follows:

(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 section 200.5(e)(2) of this Part.

5. The opening paragraph of paragraph (5) of subdivision (j) of section 200.5 of the Regulations of the Commissioner of Education are amended to read as follows:

(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 section 200.5(e)(2) of this Part. 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.

Since publication of a Notice of Revised Rule Making in the State Register on July 29, 2020, substantial revisions were made to the proposed rule. The Department revised the proposed amendment to section 200.1 of the Regulations of the Commissioner to remove the provision allowing for the certification of non-attorney IHOs in New York City. Additionally, the Department revised the proposed amendment to section 200.5(j)(3)(xii) of the Regulations of the Commissioner to reflect that, in accordance with 34 CFR § 300.515(d) and section 200.5(j)(x) of the Regulations of the Commissioner, only the parent need consent to hold a hearing by video or teleconference. Further, such amendment was revised to clarify that such consent may be obtained at a pre-hearing conference, rather than the pre-hearing conference, as pre-hearing conferences are not required.

1. STATUTORY AUTHORITY:

Education Law § 101 (not subdivided) charges the Department with the general management and supervision of all public schools and of all the educational work of the state.

Education Law § 207 (not subdivided) grants general rule-making authority to the Regents to carry into effect State educational laws and policies.

Education Law § 305(1) authorizes the Commissioner to enforce laws relating to the State educational system and execute Regents educational policies. Section 305(2) provides the Commissioner with general supervision over schools and authority to advise and guide school district officers in their duties and the general management of their schools.

Education Law § 3214(3)(g) establishes the authority of an impartial hearing officer relating to a change in placement to interim alternative educational settings.

Education Law § 4403 outlines the Department’s responsibilities regarding special education programs and services to students with disabilities. Section 4403(3) authorizes the Department to adopt regulations as the Commissioner deems in their best interest.

Education Law § 4404 establishes the appeal procedures for students with disabilities. Subdivision (1) authorizes and requires the Commissioner to promulgate regulations relating to the qualifications, procedures and timelines for impartial hearings, as well as procedures for the suspension or revocation of impartial hearing officer certification for good cause.

Education Law § 4410(7) provides that a parent may file a written request with the board of education for an impartial hearing with respect to any matter relating to the identification, evaluation or educational placement of, or provision of a free appropriate public education to preschool students with disabilities. Subdivision (14) authorizes the Commissioner to adopt regulations to implement the such statute.

2. LEGISLATIVE OBJECTIVES:

Consistent with the above statutory authority, the purpose of the proposed amendments are to: (1) expand the pool of potential impartial hearing officer (IHO) applicants in New York City by removing the restriction that all IHO attorney candidates be licensed in New York State; (2) ensure that IHOs maintain student confidentiality of students’ personally identifiable information and render decisions in a format consistent with NYSED guidelines that comply with the Family Educational Rights and Privacy Act; and (3) permit IHOs to receive testimony by video conference, and to conduct hearings by video conference.

3. NEEDS AND BENEFITS:

In January 2020, the Board of Regents was presented with a discussion item regarding expanding the pool of applicants of Impartial Hearing Officers (IHOs) to hear special education due process complaints filed in New York City. A presentation by the New York State Education Department’s (NYSED’s) Office of Special Education’s (OSE) consultant, Deusdedi Merced from Special Education Solutions, LLC, provided data on the number of due process complaints filed in New York State compared to the rest of the country. New York exceeds by 63 percent the next most active state (California) with due process complaint filings.

Additionally, within New York State, the overwhelming majority of due process complaints are filed in New York City. In the 2018-2019 school year, 10,189 special education due process complaints were filed in New York State; of these, 9,694 filings, or 95 percent, were in New York City. That amount is expected to increase during the 2019-2020 school year. This unprecedented volume of special education due process complaints is overwhelming the New York City due process system.

NYSED is proposing certain regulatory changes to expand the pool of IHO applicants in New York City and to clarify certain IHO duties and responsibilities. Many of these additional changes were listed in the January 2020 Regents item as possible amendments to address deficiencies in the hearing process that might help alleviate some of the pressure on the New York City Department of Education’s special education due process system.

Expanding the Pool of Potential IHO Applicants in New York City

In accordance with the Individuals with Disabilities Education Act (IDEA), all IHOs must be held to a standard of appropriate legal practice when presiding over and rendering decisions in special education due process hearings. However, as discussed at the January 2020 Board of Regents meeting, New York State’s current requirements for IHOs far exceed those required by IDEA to address the unprecedented number of open special education due process complaints in New York City.

1) Widening the Pool of Attorney IHO Candidates to Become IHOs:

NYSED proposes to amend section 200.1(x) of the Regulations of the Commissioner of Education to remove the restriction that all IHO attorney candidates be licensed in New York State, thereby providing for the certification of qualified candidates from neighboring states. These candidates must be in good standing in their licensed state. The amendment would further expand the areas of relevant law practice and experience for attorney candidates to better align with the requirements of IDEA by eliminating reference to civil rights law and more appropriately including reference to include experience in administrative law. The proposed amendment would also reduce the number of years of experience and/or practice for attorney candidates from two years to one year. While these proposed changes may widen the pool of applicant IHOs, it is important to note that when seeking a new cohort of IHOs for certification, NYSED seeks resumes, an extensive application, a writing sample, and three references, as well as conducting interviews of candidates, before inviting the applicant to attend a rigorous five-day training program. In other words, IHO candidates are rigorously vetted.

Privacy

1) IHOs must maintain student confidentiality:

NYSED proposes to amend section 200.5(e) of the Regulations of the Commissioner of Education to add IHOs to this section listing out who is required to maintain confidentiality of students’ personally identifiable information.

2) IHOs must render decisions in a consistent format:

Additionally, and in accordance with section 200.5(e), NYSED proposes to amend section 200.5(j) requiring IHOs to render decisions in a format consistent with NYSED guidelines that comply with the Family Educational Rights and Privacy Act (FERPA). This requirement will eliminate the need for local educational agencies or NYSED to have to redact decisions so that they comply with FERPA before making the decisions publicly available as required by IDEA.

Use of Video Conference

1) IHOs may receive testimony by video conference:

The regulations currently allow IHOs to receive testimony by telephone. NYSED proposes amending section 200.5(j)(3)(xii)(c) of the Regulations of the Commissioner of Education to allow IHOs to receive testimony via video conference to better accommodate needed witnesses, provided that such testimony shall be made under oath and shall be subject to cross-examination.

2) IHOs may conduct hearings by teleconference or video conference:

To address concerns of the more than 10,000 due process cases in New York City, NYSED proposes to add clause (h) to section 200.5(j)(3)(xii) to allow an IHO to conduct hearings by teleconference or video conference with the consent of parties so long as all personally identifiable data, information, or records pertaining to students with disabilities during such hearing is subject to section 200.5(e), pertaining to privacy, described above.

4. COSTS:

(a) Costs to State government: There are no additional costs to State government beyond those inherent in statute.

(b) Costs to local government: There are no additional costs to local government beyond those inherent in statute.

(c) Cost to private regulated parties: There are no additional costs to private regulated parties.

(d) Cost to the regulatory agency: There are no additional costs to the State Education Department.

5. LOCAL GOVERNMENT MANDATES:

The proposed amendment expands the pool of IHO applicants in New York City and clarifies certain IHO duties and responsibilities and does not impose any program, service, duty or responsibility upon any county, city, town, village, school district, fire district or other special district.

6. PAPERWORK: The proposed amendment does not impose any reporting or other paperwork requirements.

7. DUPLICATION:

The proposed amendment does not duplicate any other existing State or federal requirements.

8. ALTERNATIVES:

The proposed amendment is necessary to address the deficiencies in the impartial hearing process and clarifying certain IHO duties and responsibilities. There were no significant alternatives and none were considered.

9. FEDERAL STANDARDS:

There are no applicable Federal standards.

10. COMPLIANCE SCHEDULE:

It is anticipated that the revised proposed amendment will be presented for permanent adoption at the March 2021 Regents meeting, after publication of the revised proposed amendment in the State Register and expiration of the 45-day public comment period required under the State Administrative Procedure Act for revised rulemaking. If adopted at the March 2021 meeting, the revised proposed rule will become effective on March 31, 2021.

Since publication of Notice of Revised Rule Making was published in the State Register on July 29, 2020, substantial revisions were made to the proposed rule. The Department revised the proposed amendment to section 200.1 of the Regulations of the Commissioner to remove the provision allowing for the certification of non-attorney IHOs in New York City. Additionally, the Department revised the proposed amendment to section 200.5(j)(3)(xii) of the Regulations of the Commissioner to reflect that, in accordance with 34 CFR § 300.515(d) and section 200.5(j)(x) of the Regulations of the Commissioner, only the parent need consent to hold a hearing by video or teleconference. Further, such amendment was revised to clarify that such consent may be held at a pre-hearing conference, rather than the pre-hearing conference, as pre-hearing conferences are not required.

These substantial revisions do not require any changes to the previously published Regulatory Flexibility Analysis for Small Businesses and Local Government.

Since publication of a Notice of Revised Rule Making in the State Register on July 29, 2020, substantial revisions were made to the proposed rule. The Department revised the proposed amendment to section 200.1 of the Regulations of the Commissioner to remove the provision allowing for the certification of non-attorney IHOs in New York City. Additionally, the Department revised the proposed amendment to section 200.5(j)(3)(xii) of the Regulations of the Commissioner to reflect that, in accordance with 34 CFR § 300.515(d) and section 200.5(j)(x) of the Regulations of the Commissioner, only the parent need consent to hold a hearing by video or teleconference. Further, such amendment was revised to clarify that such consent may be held at a pre-hearing conference, rather than the pre-hearing conference, as pre-hearing conferences are not required.

1. TYPES AND ESTIMATED NUMBER OF RURAL AREAS:

The proposed amendments applies to certification of impartial hearing officers (IHOs) who conduct special education impartial hearings where the district or a parent initiates a due process complaint at any public school located in New York State, including those located in the 44 rural counties with less than 200,000 inhabitants and the 71 towns in urban counties with a population density of 150 per square mile or less.

2. REPORTING, RECORDKEEPING AND OTHER COMPLIANCE REQUIREMENTS; AND PROFESSIONAL SERVICES:

The proposed amendment does not impose any additional compliance requirements or professional services requirements on entities in rural areas.

The proposed amendments would: (1) expand the pool of potential impartial hearing officer (IHO) applicants in New York City by removing the restriction that all IHO attorney candidates be licensed in New York; (2) ensure that IHOs maintain student confidentiality of students’ personally identifiable information and render decisions in a format consistent with NYSED guidelines that comply with the Family Educational Rights and Privacy Act; and (3) permit IHOs to receive testimony by video conference, and to conduct hearings by video conference or teleconference.

3. COMPLIANCE COSTS:

The proposed amendment does not impose any additional costs on entities in rural areas.

4. MINIMIZING ADVERSE IMPACT:

The proposed amendment is necessary to address the unprecedented volume of special education due process complaints in the New York City due process system by expanding the pool of IHO applicants in New York city. The proposed amendment is also necessary to clarify certain IHO duties and responsibilities. Therefore, no alternatives were considered for those located in rural areas of the State.

5. RURAL AREA PARTICIPATION:

Three public hearings were conducted to obtain comment on the proposed amendments. In addition, the proposed amendment was submitted for comment to school districts through the offices of the district superintendents of each supervisory district in the State including those in rural areas.

The proposed rule expands the pool of impartial hearing officer (IHO) applicants to hear special education due process complaints filed in New York City and clarifies certain IHO duties and responsibilities. The proposed amendment will not have a substantial impact on jobs and employment opportunities. Because it is evident from the nature of the proposed amendment that it will have no impact on jobs or employment opportunities attributable to its adoption or only a positive impact, no affirmative steps were needed to ascertain these facts and none were taken. Accordingly, a job impact statement is not required and one has not been prepared.

Since publication of a Notice of Revised Rule Making in the State Register on July 29, 2020, the State Education Department (SED or the Department) received the following comments.

Allowing for Certification of Non-Attorney Impartial Hearing Officers (IHO) in New York City (NYC)

1. COMMENT:

Numerous commenters opposed certification and use of non-attorney IHOs indicating that:

• Non-attorneys do not have training or expertise required to conduct research and effectively understand, interpret, and apply federal and State law to cases, run a hearing in accordance with standard legal practice and tackle complex legal issues; will not be able to interpret the legislative intent of the Individuals with Disabilities Education Act (IDEA) and analyze complex body of law; do not have requisite knowledge and skills to adjudicate special education claim;

• Necessary skills cannot be learned in a brief “turn-key” training;

• Difficult to ascertain how a typical layperson who has not completed law school would be able to fulfill the mandates of 20 U.S.C. § 1415(f)(3)(A)(i)-(iv) which requires knowledge and ability to understand federal and State regulation, legal interpretations and court decisions regarding IDEA, conduct hearings and possess knowledge and render and write decisions in accordance with appropriate, standard legal practice;

• IDEA also requires an understanding of federal and State law, rules of evidence and how to apply applicable case law; non-lawyers cannot meet these requirements;

• IDEA uses the term “standard legal practice” requirement; non-lawyers cannot meet IDEA requirements;

• Due to legal complexity, attorneys are required to adjudicate special education due process hearings to ensure that legal procedures are properly followed, and the law is correctly applied;

• Someone with experience interpreting law must be the person who is ruling at hearings;

• Decision will result in IHOs who do not have the requisite knowledge and skills to adjudicate special education claims;

• Background in psychology, special education, or education administration may be qualification for service as a school psychologist, special education teacher or school administrator - such education and experience are not per se qualifications for service as an administrative law judge;

• No one would presume that a lawyer could step into the role of a clinician or educator, why is the reverse acceptable;

• Cases heard by non-attorney IHOs could contribute to increased appeals to a State Review Officer and federal court;

• Assigning non-attorney IHOs exclusively to NYC is indefensible;

• Proposal will prolong the already lengthy road to resolution; parents of students with disabilities have already suffered due to delays at the Office of State Review;

• Other State agencies find well-qualified attorneys to serve as hearing officers in their administrative tribunals, SED should be able to also;

• Proposal is disparate compared to the rest of the State which would have IHOs that are attorneys;

• Proposal would result in students and litigants in NYC having IHOs who are less qualified than IHOs hearing cases in the rest of New York State (NYS);

• This is a change in SED’s position from 2001 when it stated that it had concerns that non-attorneys did not have the requisite skills and expertise; hearings are even more complex than in 2001;

• NYS abandoned using non-attorneys in 2001, SED is reversing a well-reasoned policy that NYSED put in place more than 20 years ago without justification;

• Change would be inconsistent with nationwide trend (42 states require attorney IHOs);

• Bringing back a failed policy as a solution to a problem in NYC is a disservice to parents and vulnerable children;

• Negative effects of certifying non-attorney IHOs will disproportionately impact low-income families and communities of color;

• Proposal creates a two-tiered system of educational justice and will result in de facto racial segregation and educational inequality;

• Proposal invites significant bias into the impartial hearing process;

• COVID-19 demonstrates that hearings can be held remotely, there is no need to establish watered-down qualifications;

• Courts give deference to IHO decisions, this will dilute the nature of the process;

• Pro-se parents would be reliant on IHOs to guide them through the legal processes;

• Non-lawyers are not bound by the rules of professional conduct; and

• Non-lawyers are not subject to continuing legal education.

DEPARTMENT RESPONSE:

The Department has considered the multitudinous comments received regarding the proposal to certify non-attorneys as IHOs in NYC and determined, after much forethought, to revise its proposed amendment and remove this provision.

2. COMMENT:

Dismayed that SED has failed to respond to overwhelming public comment in opposition to the proposed regulation permitting non-attorneys to serve as IHOs. The response SED published in the July 29, 2020 NYS Register merely stated that the “Department is currently reviewing these comments.”

DEPARTMENT RESPONSE:

See response to Comment 1. The Department has determined that it will withdraw its proposal to have non-attorneys certified to become IHOs in NYC.

3. COMMENT:

Agree that the State and NYC must take urgent action and appreciate SED’s recognition of the need to address the delays in impartial hearings; however, NYS must still have IHOs that are attorneys so that law is correctly applied.

DEPARTMENT RESPONSE:

See response to Comment 1. The Department has determined that it will withdraw its proposal to have non-attorneys certified to become IHOs in NYC.

4. COMMENT:

Any system wherein non-attorney IHOs are assigned “simpler” cases or would receive the same compensation as attorney IHOs is problematic. A system where non-attorney IHOs handle certain cases would violate the rotation system requirements.

DEPARTMENT RESPONSE:

See response to Comment 1. The Department has determined that it will withdraw its proposal to have non-attorneys certified to become IHOs in NYC.

5. COMMENT:

Proposal does not address inadequate compensation of IHOs. Problem with system is that IHOs have to get paid better.

DEPARTMENT RESPONSE:

Comments regarding NYC IHO Compensation policy are beyond scope of rule.

6. COMMENT:

Backlog does not justify resorting to non-attorney IHOs. Returning to already failed policy does not address underlying causes of problems. Proposal to allow certification of non-attorneys does not address the problem at its source – the New York City Department of Education’s (DOE) widespread inability to provide appropriate evaluations, individualized education programs, services and placements to all children with disabilities. SED should explore other solutions. Suggest adding impartial personnel to facilitate meaningful resolution periods, resolve cases where the DOE has no defense; pay for the parents’ provider where the DOE has failed to find one; get DOE to timely complete its investigations. Endorse radical change throughout the system to streamline the process and cut down on the number of cases every year. Compliance assurance plan has done nothing as NYS continues to fail to repair the broken educational system.

DEPARTMENT RESPONSE:

See response to Comment 1. The Department has determined that it will withdraw its proposal to have non-attorneys certified to become IHOs in NYC. The Comprehensive Compliance Assurance Plan addresses numerous systemic failures by NYCDOE pertaining to its implementation of IDEA. The Department agrees that all possible solutions must be explored to reduce the excessive volume of special education due process complaints filed in NYC.

7. COMMENT:

Proposed amendment was driven by need to expand the pool of certified IHOs. There are better ways to work through the backlog of cases including certifying more attorney IHOs. SED has certified 35 new IHOs who are attorneys and just needs to use more aggressive recruitment efforts. Use attorneys from all over the world. Include entire country because telephone and video are now allowed.

DEPARTMENT RESPONSE:

The Department’s proposed regulations include allowing attorneys from other states to become certified IHOs, and the Department has begun to train attorneys from other states. The Department agrees with the comment that the use of video and telephonic hearings, in combination with certifying attorneys outside of the State of New York, should help to expand the pool of IHOs who may conduct hearings in NYC.

Use of Video Conference to Receive Testimony and Conduct Hearings

8. COMMENT:

Many commenters generally support the use of video conferencing technology in impartial hearings. Videoconferencing could alleviate travel burden for families, lessen space constraints, and allow for scheduling of more meetings in a day. Many commenters also supported the addition of telephonic hearings and pointed out that hearings have been run successfully in NYC in this manner during COVID-19 shut-downs.

DEPARTMENT RESPONSE:

Comments supportive; therefore, no response needed.

9. COMMENT:

The proposed amendment to section 200.5(j)(3)(xii) of the Regulations of the Commissioner which requires both parties to consent to a video or telephonic hearing a minimum of 10 days before the scheduled hearing date will present problems because the NYCDOE often does not respond to emails or communicate before the day of the scheduled hearing. This requirement gives school districts veto power to allowing hearings to take place by video or telephone. Requiring the consent of the parent only is consistent with 8 NYCRR § 200.5(j)(3)(x) which requires that the hearing be conducted at a place convenient to the parent and student. Requiring both parties to consent to a hearing by video or telephone violates 34 CFR § 300.515(d) which states that oral arguments must take place at a time and place that is reasonably convenient to the parents and child.

DEPARTMENT RESPONSE:

In consideration of several comments received and in conformance with 34 CFR § 300.515(d) and section 200.5(j)(3)(x) of the Regulations of the Commissioner, the Department has revised section 200.5(j)(3)(xii) to reflect that only the parent need to consent to the use of telephonic or video hearings ten days before the hearing.