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USDOE Hears Testimony on SRO Delays and Proposed Compliance Agreement

July 21st, 2014

By Marion Walsh, Esq.

The New York State Department of Education’s Office of State Review (“SRO”), which hears appeals of special education proceedings after an Impartial Hearing Officer (“IHO”) decision, has been out of compliance with federal mandates to issue timely decisions within 30 days, since April of 2012. This delay has impeded the right of many children with disabilities to a free appropriate public education. Some cases in our office, for example, have been pending with the SRO for two years, and we believe that the SRO must come into compliance with federal mandates immediately or at the very least, within one year.

NYSED Requests Compliance Agreement

On Wednesday, July 16, the United States Department of Education (“USDOE”) conducted a public hearing in Manhattan to hear comments from the public on a proposed Compliance Agreement to be entered into by the New York State Education Department (“NYSED”) and the USDOE. Specifically, NYSED has requested that the Department allow NYSED to enter into a Compliance Agreement to resolve its noncompliance within three years. NYSED has stated that it is not able to correct this noncompliance within one year due to the significant and unanticipated increase in the number of appeals of due process hearing decisions under the IDEA. In testimony on July 16th, NYSED also attributed the delay to the quality of Impartial Hearing Officers (“IHOs”) decisions.

NYSED’s Commissioner John B. King formally requested, in an April 9, 2014 letter, that the USDOE consider allowing NYSED to enter into the Compliance Agreement. Specifically, in the letter, NYSED acknowledged that the SRO was not in compliance with IDEA mandates and identified several reasons why the State is unable to come into compliance within one year, such as the number of NYSED identified current and proposed actions to bring NYSED into compliance with the 30-day timeline requirement within three years, such as hiring more staff members.

USDOE Sought Comment on Two Questions

At the public hearing, the USDOE panel asked the public to comment on two questions:

1. Can NYSED come into compliance within one year with the IDEA Part B requirement to issue within 30 days, unless a party requests and is granted a specific extension, a State-level independent decision in an appeal of a due process hearing officer’s decision (i.e., is compliance with this requirement not feasible until a future date beyond one year)

2. Will NYSED, within a period of no more than three years, be able to come into compliance with this IDEA Part B requirement (30 days for a State-level independent decision), and, if so, what provisions should be included in the Compliance Agreement to ensure that compliance is achieved as quickly as possible?

NYSED Must Come into Compliance within One Year

NYSED must come into compliance with the IDEA requirement to issue a decision within 30 days, within one year. All stakeholders who practice in the areas—school districts, parents, attorneys and IHOs– understand the importance of IDEA timelines. In enacting IDEA, Congress recognized that timeliness is central to the IDEA and a failure to meet its procedural deadlines can be tantamount to a denial of FAPE. The SRO should not be excused for non-compliance. The SRO’s delay causes a lack of predictability, trust and accountability of the process for all stakeholders. But most importantly, the delay causes unconscionable and irreparable harm to vulnerable children who have a limited time to receive a free appropriate public education. Due to the delay, many students lose their chance for appropriate placements. As one parent at the public hearing noted, “Justice delayed is justice denied.”

The SRO, which for 2013, has rendered approximately 238 decisions, has the ability to come into compliance with simple structural and practice changes. These changes could include:

  • a schedule that sets clear, mandated expectations for the number of days available to review the record, the number of days to draft a decision and the number of days to issue it;
  • a directive that dismissals do not require decisions and;
  • a directive to adopt, in accordance with New York Civil Practice Laws and Rules standards, a greater deference for review of decisions of IHOs, as the fact-finders.

If USDOE Allows Compliance Agreement, Must be Strong and Vigilant Federal Oversight

If the USDOE approves a three year time window to allow the SRO come into compliance, it must exercise relentless oversight over NYSED and monitor practice changes. Among other things, the USDOE should include in its compliance agreement, provisions which:

  • Ensure that the NYSED implements structural changes and policies to set clear expectations for the number of days taken to review the record, write a decision and issue a decision;
  • Direct the SRO to examine its review practices and issue a directive that dismissals do not require decisions and a directive to adopt, in accordance with New York Civil Practice Laws and Rules standards, a greater deference for review of decisions of IHOs;
  • Investigate claims of bias in favor of local educational agencies (“LEA’s”) and ensure that SRO decisions are impartial and sufficiently deferential to IHO fact-finding, as SRO practices and bias toward LEAs could be contributing to a greater number of appeals;
  • Address student rights lost by the delay and direct NYSED to allow IHOs increased discretion to revise pendency standards so that if any SRO decision takes more than 30 days, the prior IHO decision may become final;
  • Monitor and examine decisions and practice to ensure reasonable progress, with goals and benchmarks;
  • Create an advisory panel of New York stakeholders including LEA representatives, parents, attorneys, advocates, eligible students and other stakeholders, to have input and assist with monitoring.

In short, the SRO delays are inexcusable and have impeded the rights of many children to a free appropriate public education. The USDOE must take immediate and appropriate steps to ensure that the SRO comes into compliance with IDEA mandates with all deliberate speed, and, if it considers a compliance agreement, it must ensure that it protects the rights of New York’s most vulnerable children.

There is still time to give input. The USDOE is accepting comments. Written testimony or public comments may be submitted until July 26, 2014 by email to:  OSEPnysedhearinginfo@ed.gov by mail (postmark by July 26, 2014) to Jocelyn Logan-Friend, United States Department of Education, Office of Special Education Programs, Potomac Plaza, Room 4132, 550 12th Street, S.W., Washington, D.C. 20202.  The USDOE notes that commenters will not receive acknowledgement of receipt of written testimony and your testimony will be part of the public record that may be obtained through the Freedom of Information Act as appropriate.

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New Proposed Regulations Thwart Allocation of Burden of Proof in Impartial Hearings in New York

October 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.

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