Meeting of the Board of Regents | July 2008

THE STATE EDUCATION DEPARTMENT / THE UNIVERSITY OF THE STATE OF NEW YORK / ALBANY, NY 12234

 

TO:	The Honorable the Members of the Board of Regents
FROM:	Theresa E. Savo
SUBJECT:	Proposed Amendment of Part 279 of the Regulations of the Commissioner of Education Relating to State level Review of Impartial Hearing Officer Determinations for Students With Disabilities.
DATE:	July 18, 2008
STRATEGIC GOAL:	Goal 4
AUTHORIZATION(S):

 

 

Summary

 

Issue for Discussion

 

              Should the Board of Regents amend Part 279 of the Regulations of the Commissioner of Education, to provide clarification of the procedures concerning appeals of impartial hearing officer decisions to a State Review Officer, correct citations and references and expedite and otherwise facilitate the processing of petitions for review to State Review Officers?

 

Reason for Consideration

 

              Review of Policy.

             

Proposed Handling

             

              The proposed amendment is before the board for discussion at the July Regents meeting and will be submitted for action at the September Regents meeting.

 

Procedural History

 

              N/A

 

Background Information

 

              The proposed amendment is needed to correct citations and references, provide clarification of the procedures concerning appeals of impartial hearing officer decisions to a State Review Officer, and to expedite and otherwise facilitate the processing of petitions for review to State Review Officers.  The amendments include:

 

• directing that true copies of decisions of the impartial hearing officer and the impartial hearing record be filed with the Office of State Review (OSR);

 

• clarifying that both a notice of intention to seek review and a petition for review must be personally served upon the opposing party to initiate a review; and that a petition for review be filed with the Office of State Review; 

 

• clarifying timelines for serving and filing a reply, cross appeal, and hearing record to reduce confusion experienced by parties;

 

• clarify that filing papers with the Office of State Review cannot be achieved through electronic means such as electronic mail;

 

• provide greater specificity with regard to the current format requirements for pleadings and memoranda;  and

 

• clarify requirements for hearing records consistent with the notice provisions currently set forth in section 279.2.

 

A Notice of Proposed Rulemaking was published in the State Register on May 14, 2008.  Public hearings were held in Albany and Rochester on June 11, 2008 and in Albany and Brooklyn on June 12, 2008.  The last day for receipt of public comment was June 30, 2008.  A copy of the express terms and Assessment of Public Comment is attached.  Supporting materials for the proposed regulation are available upon request from the Secretary to the Board of Regents.

 

Recommendation

 

              N/A

 

Timetable for Implementation

 

              The proposed amendment is before the board for discussion in July and will be submitted for action at the September meeting.  If adopted in September, the amendment will become effective on October 9, 2008.

 

 

Attachment

 

 

PROPOSED AMENDMENT TO PART 279 OF THE REGULATIONS OF THE COMMISSIONER OF EDUCATION, PURSUANT TO SECTIONS 101, 207, 311, 4403, 4404 AND 4410 OF THE EDUCATION LAW, RELATING TO PROCEDURES FOR STATE LEVEL REVIEW OF IMPARTIAL HEARING OFFICER DETERMINATIONS REGARDING SERVICES FOR STUDENTS WITH DISABILITIES

ASSESSMENT OF PUBLIC COMMENT

              Since publication of a Notice of Proposed Rule Making in the State Register on May 14, 2008 the State Education Department has received the following comments.

1.  COMMENT: 

Regarding the proposed change to have districts provide true copies of the hearing record to the State Review Office, a commenter urges that the regulations require both impartial hearing officers and the district to forward the originals.  The commenter states that in practice, the hearing officer is the only person who has the official and original documents which include an exhibit marker completed, in most cases, by the stenographer.  The commenter indicates that although both parties should have copies of exhibits, the parties would not have a copy of the original with the identifier. The commenter believes that having to certify that she is providing the Office of State Review with an exact copy would require her to secure it from the impartial hearing officer.  The commenter asks the Board of Regents to maintain the integrity of the process by instructing impartial hearing officers of their obligation to return to the district the original record and requiring districts to continue to forward them to the State Review Officer, upon its receipt of a notice of review or upon filing a petition. 

DEPARTMENT RESPONSE:

              The purpose of the proposed amendment is to clarify procedures for practice on State Level review of impartial hearing officer determinations for students with disabilities.  Although the commenter's suggestion has been given careful consideration,  no changes to the proposed regulation have been made due to the interest of ensuring that the integrity of the student's educational record remains intact in their local school district and because the Office of State Review is not equipped or staffed to house or store original documents that may be considered part of a student's educational record on behalf of all school districts statewide that may appear before the Office.  It is further noted that the commenter's suggestions regarding the obligation of impartial hearing officers and her request that the Office of State Review instruct the hearing officers in their duties pertaining to hearing records is not within the scope of duties of the Office of State Review.  The commenter may provide such suggestions regarding impartial hearing officers to the Office of Vocational and Educational Services for Individuals with Disabilities, which provides oversight of the first tier impartial hearing system.     

2.  COMMENT:

Regarding the requirement for personal service, a commenter proposes that the Board of Regents adopt rules similar to those adopted by both state and federal courts which allow for service by mail (Federal Rules of Civil Practice Rule 4(d); State Rules of Civil Procedures §312(a)) and service upon an attorney of a party represented at hearing, upon confirmation of continuing representation.  Recognizing that the rules would have to reflect Individuals with Disabilities Education Act's unique area of practice regarding timelines and the inability to charge the parent a fee for refusing services by mail, the commenter suggests that the option be available, particularly where a party is represented by counsel.  The commenter indicates that unless it is absolutely necessary, neither a parent nor a district should incur the additional cost of personal service nor should a district have to serve a parent in person where the parent’s attorney represents that he/she will continue to represent them on appeal.  The commenter feels that, if given a choice, people generally would prefer not to be personally served.  To the extent this would require parties to prepare papers earlier to avoid the need for last minute personal service; the commenter feels that that would be up to the party.  By offering the option the commenter feels that it also eliminates potentially the need to forward copies of papers to attorneys who only have ten days from the date of service to answer them.    

DEPARTMENT RESPONSE:

              We have carefully considered the commenter's suggestions.  At this time personal service is required by regulation for a notice of intention to seek review and a petition for review and is not required for responsive papers.  Pertaining to the notice of intention to seek review and a petition for review, decisions by the State Review Officer have allowed for service by mail upon consent of the parties (seeApplication of the NYC Dep't of Educ., Appeal No. 07-037, Application of the Bd. of Educ., Appeal No. 04-058).  This practice will continue under the proposed new regulations.  Therefore, there is no current need to change the practice regulations at this time.  However, we may consider them in a future amendment to the Part 279 Regulations

3.  COMMENT:

              Regarding current formatting for pleadings and memoranda, a commenter suggests that the State Review Officer be given discretion, as State and federal court judges currently have, to extend the page limits under extraordinary circumstances. 

DEPARTMENT RESPONSE:

              The commenter's suggestion has been considered and we see no reason to modify the regulations at this time as the current system is functioning efficiently.

4.  COMMENT:

              A commenter is concerned that the proposed changes to the regulations may be confusing to a party initiating an appeal because the changes could be construed to mean that a petitioner would only be permitted to file a petition and notice with petition with the Office of State Review and would be precluded from filing any written argument, memorandum of law and/or additional documentary evidence.  The commenter points out that other sections of the regulations explicitly permit the filing of a memorandum of law and/or additional documentary exhibits.

DEPARTMENT RESPONSE:

The Office of State Review has reviewed the commenter's concerns and we feel that the regulations are clear that the filing of a memorandum of law, written argument, and/or documentary evidence with the Office of State Review is permitted under the regulations (seee.g. 279.4, 279.5, 279.6)

5.  COMMENT:

              While not specifically addressed by the proposed changes in 279.11 of the regulations, the commenter is concerned that questions regarding the computation of timelines should be addressed.  Specifically, while the regulation contemplates that the computation of time for the last day of service of papers shall be business, not calendar days (excluding weekends and holidays), the commenter feels that there is no correlating specific provision for the filing of papers with the Office of State Review.  The commenter would prefer that this issue be explicitly addressed in the regulations.

DEPARTMENT RESPONSE:

              The commenter's suggestion has been carefully considered and, while we find no urgent need to modify the proposed regulations at this time, we may consider the commenter's suggestion upon a future amendment to the Part 279 Regulations.

6.  COMMENT:

              While not specifically addressed by the proposed changes to the regulations, a commenter raises questions regarding the computation of time to serve an answer to a cross-appeal that was served on a petitioner by mail.  The commenter believes that, when read together, Part 279.5 and 279.11 provide that the time to serve such an answer would be thirteen (13) days after the postmarked date of the cross-appeal (ten days to answer a petition plus the date of mailing and two subsequent days excluded to respond to a pleading served by mail).  The commenter would prefer that the regulations explicitly address this issue.

DEPARTMENT RESPONSE:

              The Office of State Review has considered the commenter's suggestions for clarification and, while there is no urgent need to make such modifications at this time, we may consider the commenter's suggestion upon a future amendment to the Part 279 Regulations.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

AMENDMENT OF THE REGULATIONS OF THE COMMISSIONER OF EDUCATION

Pursuant to Education Law sections 101, 207, 301, 311, 4403, 4404 and 4410

Part 279 of the Regulations of the Commissioner of Education is amended, effective October 9, 2008, as follows:

PART 279

PRACTICE ON REVIEW OF HEARINGS FOR STUDENTS WITH DISABILITIES

§279.1 Scope of Part.

(a)  .   .   .

(b)  As used in this Part, State Review Officer means an employee of the State Education Department designated by the commissioner to conduct impartial State-level review pursuant to Education Law, section [4402(2)] 4404(2) of the determination of an impartial hearing officer in a hearing related to the identification, evaluation, program or placement of a student with a disability.

(c)  .   .   .

(d)  .   .   .

§ 279.2 Notice of intention to seek review.

(a) The parent or person in parental relationship of a student with a disability who intends to seek review by a State Review Officer of the State Education Department of the decision of an impartial hearing officer shall personally serve upon the school district, in the manner prescribed for the service of a petition pursuant to section 275.8(a) of this Title, a notice of intention to seek review in the following form:

Notice:

The undersigned intends to seek review of the determination of the impartial hearing officer concerning the identification, evaluation, program or placement of (name of student with a disability).  Upon receipt of this notice, you are required to have prepared a written transcript of the proceedings before the impartial hearing officer in this matter.  A copy of any interim and the final decision of the impartial hearing officer, a bound copy of the written transcript, including a word index for the written transcript, as well [ad] as an electronic transcript, and a true copy of the original exhibits accepted into evidence at the hearing and an index to the exhibits must be filed by the Board of Education, together with certification of the completed record, with the Office of State Review of the New York State Education Department within 10 days after service of this notice.

(b)  The notice of intention to seek review shall be personally served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed.  The petition for review shall be personally served upon the school district within 35 days from the date of the decision sought to be reviewed.  If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period.

• (c)  A notice of intention to seek review shall not be required when the board of education initiates an appeal from an impartial hearing officer's decision.  A copy of the board's notice of petition, petition, memorandum of law and any additional documentary evidence shall be personally served upon the parent within 35 days from the date of the impartial hearing officer's decision.  If the decision has been served by mail upon the board, the date of mailing and the four days subsequent thereto shall be excluded in computing the 35-day period.

§279.3 Notice with petition.

Each petition must contain the following notice:

Notice:

You are hereby required to appear in this review and to answer the allegations contained in this petition. Your answer must conform with the provisions of the regulations of the Commissioner of Education relating to reviews of this nature, copies of which are available from the Office of State Review of the New York State Education Department, [1450 Western Avenue] 80 Wolf Road, Suite 203, Albany, NY [12203] 12205.

Please take notice that such regulations require that an answer to the petition must be served upon the petitioner, or if petitioner is represented by counsel, upon such counsel, within 10 days after the service of the petition for review, and that a copy of such answer must, within two days after such service, be filed with the Office of State Review of the New York State Education Department, [1450 Western Avenue] 80 Wolf Road, Suite 203, Albany, NY [12203] 12205.

The decision of the State Review Officer shall be based solely on the record before the State Review Officer and shall be final, unless an aggrieved party seeks judicial review.

§279.4 Initiation of review.

(a) Petition for review.  The party seeking review shall file with the Office of State Review of the State Education Department the petition for review, [including any written argument, memorandum of law, and additional documentary evidence,] and the notice of intention to seek review where required, [together with proof of service of a copy of such documents upon the other party to the hearing] together with proof of service upon the other party to the hearing, within three days after service is complete.  No filing by facsimile or electronic transmission shall be permitted.  The petition for review shall clearly indicate the reasons for challenging the impartial hearing officer's decision, identifying the findings, conclusions and orders to which exceptions are taken, and shall [briefly] indicate what relief should be granted by the State Review Officer to the petitioner. 

• (b) Cross-appeals.  A respondent who wishes to seek review of an impartial hearing officer's decision may cross-appeal from all or a portion of the decision by setting forth the cross-appeal in respondent's answer.  A cross-appeal shall be deemed to be timely if it is included in an answer which is served within the time permitted by section 279.5 of this Part.  The petitioner shall answer respondent's cross-appeal within 10 days after service of a copy of the answer and cross-appeal upon petitioner, and shall file the answer to the cross-appeal, together with proof of service, with the Office of State Review of the State Education Department, within two days after service is complete.  No filing by facsimile or electronic transmission shall be permitted.

§ 279.5 Service of answer.

The respondent shall, within 10 days after the date of service of a copy of the petition, answer the same, either by concurring in a statement of facts with petitioner or by service of an answer, with any written argument, memorandum of law, and additional documentary evidence.  Such answer or agreed statement of facts, together with proof of service of a copy of such documents upon the petitioner, shall be filed with the Office of State Review of the State Education Department, within two days after such service.  No filing by facsimile or electronic transmission shall be permitted.

§279.6 Additional pleadings.

No pleading other than the petition or answer will be accepted or considered by a State Review Officer of the State Education Department, except a reply by the petitioner to any procedural defenses interposed by respondent or to any additional documentary evidence served with the answer.  Such reply shall be served [and filed] upon the opposing party within three days after service of the answer is complete.  Such reply, together with proof of service, shall be filed with the Office of State Review within two days after service of the reply is complete.  No filing by facsimile or electronic transmission shall be permitted.

§279.7  .   .   .

§279.8 Pleadings and memoranda of law.

(a)  Form of pleadings and memoranda of law.  Documents that do not comply with the requirements listed in this subdivision may be rejected in the sole discretion of the State Review Officer.  All pleadings and memoranda of law shall be in the following form:

(1)  .   .   .

(2)  typewritten in black ink, single sided, and text double-spaced (block quotation and footnotes may be single-spaced) [with typed material in].  All text, with the exception of page numbering, shall appear on pages containing margins of at least one inch.  Text shall appear as minimum 12-point type in the Times New Roman font (footnotes may appear as minimum 10-point type in the Times New Roman font) [and not exceeding 6 1/2 by 9 1/2 inches on each page].  Compacted or other compressed printing features are prohibited;

(3)  .   .   .

(4)  .   .   .

(5)  the petition, answer, or memorandum of law shall not exceed 20 pages in length; [the] a reply shall not exceed 10 pages in length.  A party shall not circumvent page limitations through incorporation by reference.  Extensive footnotes may not be used to circumvent page limitations; and

(6)  .   .   .

• (b)  The petition, answer, reply and memorandum of law shall each [reference] set forth citations to the record on appeal, [identifying] and shall identify the relevant page [number] number(s) in the hearing decision, [and] transcript, [the ]exhibit number or letter and, if the exhibit consists of multiple pages, the exhibit page number.

§279.9 Record of the proceeding before the impartial hearing officer.

(a) [It shall be the responsibility of the] The board of education shall, whether it is the petitioner or the respondent, [to] file with the Office of State Review of the State Education Department[,] a copy of the decision of the impartial hearing officer, a bound copy of the written hearing transcript before the impartial hearing officer [, including a] that includes a word index for the written transcript, [as well as] an electronic copy of the written transcript, copies of prehearing conference summaries or transcripts, [and] a copy of the original exhibits accepted into evidence at the hearing and an index to the exhibits[, together with the petition or answer submitted on behalf of such board].  The board of education shall submit a signed certification with the record, that the record submitted is a true and [is the]complete copy of the hearing record before the impartial hearing officer.

(b) Where the petitioner is a party other than the board of education, the board of education shall file the completed and certified record with the Office of State Review within 10 days after service of the notice of the intention to seek review.

(c) Where the board of education is the petitioner, such board shall file the record before the hearing officer together with the petition for review.  [Where the board of education is the respondent, such board shall file the record before the hearing officer within 10 days after the date of service of the notice of intention to seek review.]  A State Review Officer may, at his or her discretion, dismiss [, at his or her discretion,] an appeal by the board of education when a [complete] completed and certified hearing record is not filed [within such timelines] with the petition for review.

§279.10 Rules of practice.

(a)  .   .   .

(b)  Additional evidence.  The State Review Officer may seek additional oral testimony or documentary evidence if the State Review Officer determines that such additional evidence is necessary.  Hearings for the purpose of taking additional evidence will be conducted before the State Review Officer at a time and place which is reasonably convenient to the parties, and procedures at such hearings shall be consistent with the requirements of section [200.5(i)(3)] 200.5(j)(3) of this Title.

(c)  Stay of proceedings.  The provisions of section 276.1 of this Title regarding stay of proceedings shall not apply to appeals brought pursuant to section 4404 of the Education Law seeking review of a determination of an impartial hearing officer.  The provisions of subdivision 4 of section 4404 of the Education Law and section [200.5(l)] 200.5(m) (regarding a student's status during proceedings) of this Title shall apply exclusively in such appeals.  A determination of pendency pursuant to subdivision 4 of section 4404 of the Education Law ­and section 200.5(m) of this Title shall be made in writing, in the first instance, by the impartial hearing officer and may be reviewed by a State Review Officer.

(d)  .   .   .

(e)  Extensions of time to answer or reply.  No extension of time to answer the petition for review, interpose a cross-appeal, or to reply to an answer will be granted by the State Review Officer unless timely application is made therefor, upon written notice to all parties.  Such application shall be in writing, addressed to the Office of State Review, must be postmarked not later than the date on which the time to answer or reply will expire, [and ]shall set forth in full the reasons for the request, and shall briefly state whether the other party consents to or opposes the application for extension.  The time to [answer] respond to a pleading may not be extended solely by stipulation of the parties or their counsel.

§279.11 Computation of days within which service must be made.

The date upon which personal service of the petition was made upon the respondent shall be excluded in the computation of the 10-day period in which service of the answer and cross-appeal must be made.  If the answer has been served by mail upon petitioner or petitioner's counsel, the date of mailing and the two days subsequent thereto shall be excluded in the computation of the three-day period in which a reply to procedural defenses or a response to additional documentary evidence served with the answer may be served and filed by the petitioner.  If the last day for service of a notice of intention to seek review, a petition for review, an answer or a response to an answer falls on a Saturday or Sunday, service may be made on the following Monday; and if the last day for such service falls on a legal holiday, service may be made on the following business day.

§279.12  .   .   .

§279.13 Limitation of time for initiation of appeal.

• A petition for review to [the] a State Review Officer must be [filed] served and filed within the timelines specified in section 279.2 of this Part.  [The] A State Review Officer may dismiss sua sponte a late petition for review.  [The] A State Review Officer, in his or her sole discretion, may excuse a failure to timely serve or file a petition for review within the time specified for good cause shown.  The reasons for such failure shall be set forth in the petition for review.

§279.14  .   .   .