AMENDMENT TO THE REGULATIONS OF THE COMMISSIONER OF
EDUCATION
Pursuant to sections 101, 207, 305, 4402, 4403 and 4404 of the Education
Law.
1. Paragraph (3) of
subdivision (i) of section 200.5 of the Regulations of the Commissioner is
amended, effective May 1, 2004, as follows:
(3) The board of education
shall arrange for such a hearing to be conducted in accordance with the
following rules:
(i) Appointment from the
impartial hearing officer list must be made in accordance with the rotational
selection process established in section 200.2(e)(1) of this Part and the
administrative procedures established by the board of education pursuant to
section 200.2(b)(9) of this Part.
(a) The rotational selection
process must be initiated immediately, but not later than two business days
after receipt by the school district of the written request for the
hearing.
(b) The impartial hearing
officer may not accept appointment unless he or she is available to initiate the
hearing within the first 14 days of being appointed [contacted] by the
school district.
(ii) The board of education
or trustees shall immediately appoint an impartial hearing officer to conduct
the hearing. A board of education
may designate one or more of its members to appoint the impartial hearing
officer.
(iii) The hearing, or a
prehearing conference, shall be scheduled to begin within the first 14 days of
the impartial hearing officer's appointment, unless an extension is granted
pursuant to subparagraph (i) of paragraph (4) of this
subdivision.
(iv) The impartial
hearing officer shall be authorized to administer oaths and to issue subpoenas
in connection with the administrative proceedings before
him/her.
[(iv)](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.
[(v)] (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.
[(vi) The impartial hearing
officer shall preside at the hearing and shall provide all parties an
opportunity to present evidence and testimony.]
(vii) The parties to the
proceeding may be accompanied and advised by legal counsel and by individuals
with special knowledge or training with respect to the problems of students with
disabilities. At all stages of
the proceeding, the impartial hearing officer may assist an unrepresented party
by providing information relating only to the hearing
process.
(viii) In the event the impartial hearing officer requests an
independent evaluation as part of a hearing, the cost of the evaluation must be
at public expense.
(ix) In the event the
impartial hearing officer determines that the interests of the parent are
opposed to or 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 dates(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. [At] Except as
provided for in section 201.11 of this Title, at least five business days
prior to a hearing, each party shall disclose to all other parties all
evaluations completed by that date and recommendations based on the offering
party’s evaluations that the party intends to use at the hearing. An impartial hearing officer may bar any
party that fails to comply with this requirement from introducing the relevant
evaluation or recommendation at the hearing without the consent of the other
party.
(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, 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 6 1/2 by 9 1/2 inches on each page.
(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.
[(xii)](xiv) The parents shall have the right to determine whether
the student shall attend the hearing.
[(xiii)](xiv) If, by
mutual agreement of the parties, the impartial hearing officer is deemed
incapacitated or otherwise unavailable or unwilling to continue the hearing or
issue the decision, the board of education shall rescind the appointment of the
impartial hearing officer and appoint a new impartial hearing officer in
accordance with the procedures as set forth in this
subdivision.
[(xiv)](xvi)
Commencing July l, 2002, each board of education shall report information
relating to the impartial hearing process, including but not limited to the
request for, initiation and completion of each impartial hearing, to the Office
of Vocational and Educational Services for Individuals with Disabilities of the
State Education Department in a format and at an interval prescribed by the
commissioner.
2. Paragraph (4) of
subdivision (i) of section 200.5 of the Regulations of the Commissioner is
amended, effective May 1, 2004, as follows:
(4) Except as provided in
section [200.16(g)(a)]
200.16(g)(9) of this Part and section 201.11 of this Title, the
impartial hearing officer shall render a decision, and mail a copy of the
written, or at the option of the parents, electronic findings of fact and the
decision to the parents, to the board of education, and to the Office of
Vocational and Educational Services for Individuals with Disabilities (VESID) of
the State Education Department, not later than 45 days after the receipt by the
board of education of a request for a hearing or after the initiation of such a
hearing by the board. 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. The record
of the hearing and the findings of fact and the decision shall be provided at no
cost to the parents. All personally
identifiable information shall be deleted from the copy forwarded to
VESID.
(i) An impartial hearing officer may grant specific extensions of time
beyond the periods set out in this paragraph, in subparagraph (iii) of paragraph (3) of
this
subdivision, or in section
200.l6(g)(9) of this Part at the request of either the school district or the
parent. Each extension shall be
for no more than 30 days. The
reason for [the] each extension must be documented in the hearing record.
[In such case, the impartial hearing officer shall render the decision and mail
a copy of the written, or at the option of the parents, electronic findings of
fact and the decision to the parents, to the board of education, and to VESID no
later than 14 days from the date the record is closed, including any post
hearing submissions, and the transcript is received by the impartial hearing
officer.]
(ii) The impartial hearing officer may grant a request for an
extension only after fully considering the cumulative impact of the following
factors:
(a) the impact on the
child’s educational interest or well-being which might be occasioned by the
delay;
(b) the need of a party
for additional time to prepare or present the party’s position at the hearing in
accordance with the requirements of due process;
(c) any financial or
other detrimental consequences likely to be suffered by a party in the event of
delay; and
(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, settlement discussions between the parties or other
similar reasons. Agreement of the
parties is not a sufficient basis for granting an
extension.
(iv) The impartial hearing officer shall respond in writing to each
request for an extension. The
response, shall become part of the record.
The impartial hearing officer may render an oral decision to an oral
request for an extension, 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, and notify the parties in writing of such
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 (j) of this
section. The decision of the
impartial hearing officer shall be binding upon both parties unless appealed to
the State review officer.
