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Special Education
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: 
Sharon Cates-Williams
Subject: 
Proposed Amendment of Part 279 of the Regulations of the Commissioner of Education Relating to Procedures Concerning Appeals of Impartial Hearing Officer Determinations for Students with Disabilities to a State Review Officer
Date: 
September 1, 2016

SUMMARY

Issue for Decision (Consent Agenda)

Should the Board of Regents amend Part 279 of the Regulations of the Commissioner of Education, to provide clarifications and updates to the procedures concerning appeals of impartial hearing officer determinations for students with disabilities to a State Review Officer?

Reason(s) for Consideration

Review of Policy.

Proposed Handling

The proposed amendment is submitted to the Full Board for adoption as a permanent rule at its September 2016 meeting. A copy of the proposed amendment is included as Attachment A. Procedural History The proposed amendments to Part 279 were initially discussed by the P-12 Education Committee at the January 2016 Regents meeting. In February 2016, comment was taken at public hearings, which were conducted in New York City, Albany, and Rochester, and a number of written public comments were received. An assessment of the public comments was presented to the P-12 Education Committee at the June 2016 Regents meeting. Based on the comments received, the Board of Regents adopted several revisions to the proposed amendments at its June meeting to alleviate several of the concerns that were identified in the public comment process.

A Notice of Revised Rulemaking was published in the State Register on June 29, 2016. A copy of the proposed amendment is included as Attachment A. Supporting materials for the proposed regulation are available upon request from the Secretary to the Board of Regents.
 
Following the 30-day public comment period required for revised rule makings under the State Administrative Procedure Act, the Department received one comment. An assessment of the public comment is included as Attachment B. 
 

Background

At its January meeting, the Board of Regents discussed the proposed amendment which updates citations and references, provides clarification and updates to the procedures concerning appeals of impartial hearing officer decisions to a State Review Officer, and expedites and otherwise facilitates the processing of petitions for review to State Review Officers. The proposed amendments also clarify the procedures for filing the record of the impartial hearing, serving the notice of intention to seek review, the time for a party to serve responsive pleadings in an appeal, the procedures for filing an appeal and responsive pleadings with the Office of State Review, and the format requirements for papers filed with the Office of State Review.
 
Based on comments received from the field, the Board of Regents adopted the following revisions to the proposed amendment at its June 2016 meeting:
  • clarifying the scope of a State Review Officer's subject matter jurisdiction including the provision for a free appropriate public education to a student with a disability;
  • withdrawing the proposed amendment that would have required parties to state any challenges to the impartiality of a State Review Officer in their respective pleadings;
  • withdrawing the proposed amendment that would have permitted a school district to initiate an appeal by affixing the request for review to the door of a parent's residence and mailing a duplicate copy to the parent;
  • revising the proposed time to answer a cross-appeal to be consistent with the time to answer the request for review; withdrawing a new proposal to require the filing of electronic copies of pleadings and memoranda; and
  • withdrawing the proposal that the filing of a pleading would be complete upon receipt by the Office of State Review (which would diminish the amount of time that a party has to transmit the pleading) and reverting to the previous standard that a filing is deemed complete upon the party's transmission of the document to the Office of State Review.

Following the 30-day public comment period required under the State Administrative Procedure Act, the Department received one comment. The Department does not believe any further revisions to regulation are needed.

Related Regents Items

 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
 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

Recommendation

It is recommended that the Board of Regents take the following action:
 
VOTED: that Part 279 of the Regulations of the Commissioner of Education be amended, as submitted, effective January 1, 2017.

Timetable for Implementation

If the Board of Regents adopts the proposed amendment at the September
meeting, the proposed amendment will take effect on January 1, 2017.
 
Attachments