New Proposed Regulations Thwart Allocation of Burden of Proof in Impartial Hearings in New YorkOctober 26th, 2012
The New York State Board of Regents is considering amendments to Part 200 Regulations which will effect how special education impartial hearings are conducted in New York. When parents of students with disabilities disagree with the placement or services for their child, they have the right to initiate a due process complaint for a hearing, in front of a trained Impartial Hearing Officer (“IHO”). As advocates for students with disabilities, we have concerns that that the Proposed Regulations make settlements more difficult and make the process of a hearing more cumbersome, particularly for pro se litigants.
The Proposed Regulations mandate pre-hearing conferences even in cases in which the parties inform the IHO that they are engaged in settlement discussions. Even more significantly, this imposition of a pre-hearing conference has the potential to thwart the allocation of the burden of proof in New York State. New York Education Law clearly places the burden of proving a free appropriate public education (“FAPE”) on the school district. Parents initiating a complaint have the responsibility to frame the issues and the proposed problems. However, if the law now mandates a prehearing conference that requires the IHO to review the issues framed in the complaint and empowers him or her to modify the issues before the school district has meet its prima facie burden, this will interfere with the parents’ responsibilities in framing the issues and the school district’s in responding to it. For example, in an impartial hearing request, suppose a parent claims that a school district denied her child a FAPE by failing to provide ABA services. In the hearing, the school district would have the burden of proving that it offered a FAPE and that the child was receiving educational benefit from the existing program. But it is possible that an IHO could “simplify” the issues and essentially override the burden of proof and frame the issues to simply to determine if the child needed ABA services to progress. Legally this would be reversible error, but many parents cannot afford a costly appeal.
Thus, we recommend that parents and students advocate against the adoption of the Proposed Regulations. The Regents will make a final decision on SED’s latest attempt at their meeting on November 5 and 6. It is important to get to the Regents prior to that meeting in any way possible but at least send/email your comments directly to them. Individuals can go to http://www.regents.nysed.gov/members/ for contact information. Here is a statement to consider sending to the Board of Regents:
I oppose the adoption of the proposed amendments to the Proposed Regulations on governing impartial hearings at this time, on prehearing conferences. I believe that they should be withdrawn for comprehensive review in light of the law’s principals which favor settlement and support pro se litigants. I am particularly concerned that the proposed amendments could allow an Impartial Hearing Officer to frame the issues in a hearing in such a way as to thwart the proper allocation of the burden of proof in impartial hearings in New York. Thus, I am respectfully requesting that the Board of Regents not adopt the proposed regulations on prehearing conferences at this time. Thank you for your consideration.