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: |
Kathy A. Ahearn |
COMMITTEE: |
Full Board |
TITLE OF
ITEM: |
State level review of impartial hearing officer determinations for students with disabilities |
DATE OF
SUBMISSION: |
July 30, 2004 |
PROPOSED
HANDLING: |
Approval |
RATIONALE FOR
ITEM: |
To ensure compliance with Federal requirements |
STRATEGIC
GOAL: |
4 |
AUTHORIZATION(S): |
|
SUMMARY:
Attached is a proposed amendment of section 279.12 of the Regulations of the Commissioner of Education. Supporting materials for the proposed amendment are available upon request from the Secretary to the Board of Regents.
The proposed amendment is necessary
to conform
section 279.12 of the Commissioner's Regulations to the Federal Individuals with
Disabilities Education Act (IDEA) and 34 CFR section 300.511, by deleting a
provision that authorizes the State
Review Officer to extend the timelines for issuing a decision to allow
additional time to review an extensive record on appeal. The U.S. Department of Education has
notified the State Education Department that this provision is out of compliance
with CFR section 300.511.
The proposed amendment was adopted as an
emergency action at the June Regents meeting and is now being proposed for
adoption as a permanent rule, effective September 30, 2004. A Notice of Emergency
Adoption and Proposed Rule Making was published in the State Register on July
14, 2004. In addition to adopting the amendment as a
permanent rule, a second emergency adoption is necessary to ensure that the rule
remains continuously in effect until the effective date of the permanent
rule. A Statement of the Facts and
Circumstances Which Necessitate Emergency Action is
attached.
RECOMMENDATION: It is
recommended that the Board of Regents take the following
action:
VOTED: That section 279.12 of the Regulations of the Commissioner of Education be amended as submitted, effective September 14, 2004, as an emergency action upon a finding by the Board of Regents that such action is necessary for the preservation of the general welfare in order to ensure that the rule remains continuously in effect until the effective date of its adoption as a permanent rule, and thereby ensure compliance with Federal requirements for receipt of funds under the IDEA.
VOTED: That section 279.12 of the Regulations
of the Commissioner of Education be amended as submitted, effective September
30, 2004
Attachment
PROPOSED AMENDMENT TO SECTION 279.12 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
STATEMENT OF FACTS AND CIRCUMSTANCES WHICH
NECESSITATE EMERGENCY ACTION
The proposed amendment is necessary
to conform
section 279.12 of the Commissioner's Regulations to the Federal Individuals with
Disabilities Education Act (IDEA) and 34 CFR section 300.511, by deleting a
provision that authorizes the State
Review Officer to extend the timelines for issuing a decision to allow
additional time to review an extensive record on appeal. The U.S. Department of Education has
notified the State Education Department that this provision is out of compliance
with CFR section 300.511.
The proposed rule was adopted at the June 21-22, 2004 Regents meeting, as an emergency measure, effective June 25, 2004, for the preservation of the general welfare to immediately conform the Commissioner's Regulations to the Federal Individuals with Disabilities Education Act (IDEA) and 34 CFR §300.511, and thereby ensure compliance with Federal requirements for receipt of funds under the IDEA.
The proposed rule is being presented to the Board of Regents for adoption as a permanent rule at their September 9-10, 2004 meeting, which is the first scheduled meeting after expiration of the 45-day public comment period mandated by the State Administrative Procedure Act. Pursuant to SAPA section 202(5), the permanent adoption cannot become effective until after its publication in the State Register on September 29, 2004. However, the June emergency adoption will expire on September 22, 2004, 90 days after its filing with the Department of State on June 25, 2004. A second emergency adoption is therefore necessary to ensure that the rule remains continuously in effect until the effective date of its adoption as a permanent rule, and thereby ensure compliance with Federal requirements for receipt of funds under the IDEA.
AMENDMENT OF THE REGULATIONS OF THE
COMMISSIONER OF EDUCATION
Pursuant to Education Law sections 101, 207,
311, 4403, 4404 and 4410
Section 279.12 of the Regulations of the
Commissioner of Education is amended, effective September 14, 2004, as follows:
§279.12
Decision of State Review Officer.
(a)
. .
.
(b)
[The timelines in which the State Review Officer must issue a decision
may be extended once for a period not to exceed 60 days from the date upon which
the decision was originally due to be issued upon request by the Office of State
Review and upon consent of both petitioner and respondent for the purpose of
allowing a State Review Officer sufficient time to review an extensive record on
appeal. For purposes of this
subdivision, an extensive record on appeal is a record that contains more than
1,000 pages of transcript. The
timeline for issuing a decision may also be extended by the Office of State
Review: (i) for a period of time
equal to the additional time that the Office of State Review has granted
respondent and petitioner for the filing of an answer and reply, and/or (ii) in
appeals in which the petitioner is the board of education, for the period of
time during which the hearing record on appeal filed pursuant to section 279.9
of this Part is not complete.
(c)]
The decision of the State Review Officer shall be mailed by the Office of
State Review to counsel for petitioner and respondent, parties appearing pro se,
and the superintendent of the school district involved as a party in the appeal
or the superintendent's designee.
The superintendent, or the superintendent's designee, shall forward a
copy of the decision as soon as practicable to the principal and chairperson of
the committee on special education of the school involved in developing the most
recent individualized education program (IEP) that was in contention in the
appeal.
AMENDMENT OF THE REGULATIONS OF THE
COMMISSIONER OF EDUCATION
Pursuant to Education Law sections 101, 207,
311, 4403, 4404 and 4410
Section 279.12 of the Regulations of the
Commissioner of Education is amended, effective September 30, 2004, as follows:
§279.12
Decision of State Review Officer.
(a)
. .
.
(b)
[The timelines in which the State Review Officer must issue a decision
may be extended once for a period not to exceed 60 days from the date upon which
the decision was originally due to be issued upon request by the Office of State
Review and upon consent of both petitioner and respondent for the purpose of
allowing a State Review Officer sufficient time to review an extensive record on
appeal. For purposes of this
subdivision, an extensive record on appeal is a record that contains more than
1,000 pages of transcript. The
timeline for issuing a decision may also be extended by the Office of State
Review: (i) for a period of time
equal to the additional time that the Office of State Review has granted
respondent and petitioner for the filing of an answer and reply, and/or (ii) in
appeals in which the petitioner is the board of education, for the period of
time during which the hearing record on appeal filed pursuant to section 279.9
of this Part is not complete.
(c)]
The decision of the State Review Officer shall be mailed by the Office of
State Review to counsel for petitioner and respondent, parties appearing pro se,
and the superintendent of the school district involved as a party in the appeal
or the superintendent's designee.
The superintendent, or the superintendent's designee, shall forward a
copy of the decision as soon as practicable to the principal and chairperson of
the committee on special education of the school involved in developing the most
recent individualized education program (IEP) that was in contention in the
appeal.