A Hearing Officer Initiates an Otr Review Ny

Questions and Answers on Impartial Due Process Hearings for Students with Disabilities

Questions and Answers on Impartial Due Process Hearings for Students with Disabilities   PDF

INTRODUCTION

A.  REQUESTING AN IMPARTIAL HEARING

B.  Appointment OF AN IHO

C.  RESOLUTION PERIOD

D. IMPARTIAL HEARING PROCEDURES

E. IMPARTIAL HEARING OFFICERS

F. EXPEDITED IMPARTIAL HEARINGS

G. IMPARTIAL HEARING DECISIONS AND APPEALS

Consistent with the Individuals with Disabilities Education Act (Idea), the New York Country Educational activity Department (NYSED) has established due procedure procedures that provide specific options for concerns or disagreements that arise between parents(footnote1) and school districts nigh the identification, evaluation, educational placement of, or the provision of a complimentary appropriate public teaching (FAPE) to, a educatee with a disability or a student suspected of having a disability. NYSED encourages school districts and parents to work cooperatively to resolve disagreements that may occur through non-adversarial means whenever possible.  For example, parents may contact their child's teacher or ask for a coming together with school administrators or the Committee on Preschool Special Education (CPSE) or Commission on Special Instruction (CSE) to discuss concerns nearly their child's educational activity.

When disagreements cannot be resolved through informal means, parents or schoolhouse districts may request special pedagogy arbitration.  Arbitration is a voluntary procedure in which parents of students with disabilities and school district personnel meet with a peculiarly trained, impartial individual (i.e., a mediator) to resolve disputes that may ascend about a pupil's special didactics program.  A qualified and impartial mediator conducts the mediation sessions but does not issue a decision.  An understanding reached by the parents and the schoolhouse district is ready forth in a written arbitration agreement, which is binding upon the parties.  All discussions that occur during the mediation process must be confidential and may not exist used as evidence in any subsequent due procedure hearings or courtroom proceedings.  Mediation is more often than not a less expensive, less fourth dimension-consuming alternative to dispute resolution for both parties, allows the parties to discuss the issues and work together to develop a mutually agreeable solution and is a highly constructive process in resolving problems related to special education matters. For more than information on the mediation process, refer to NYSED's Special Teaching Mediation webpage.   (https://www.p12.nysed.gov/specialed/dueprocess/documents/special-education-arbitration.htm)

If a parent, private or organization believes that a school district or public bureau has violated a requirement of the IDEA, the federal regulations or Country law/regulations related to the education of students with disabilities, they may submit a written, signed State complaint to NYSED.  The Land complaint must allege a violation that occurred not more than one year prior to the appointment that the State complaint is received.  Upon receipt of a written complaint by an individual or agency, NYSED must decide if the alleged violation occurred and issue a written decision of its findings inside 60 agenda days of receiving the State complaint.  For more information on Country complaints, refer to the New York State Complaint Procedures – Questions and Answers.

(https://www.p12.nysed.gov/specialed/quality/complaintqa.htm)

The parents or a school district may asking an impartial due process hearing (referred to as an "impartial hearing" throughout this certificate) on any matter relating to a proposal or a refusal to initiate or modify the identification, evaluation or educational placement, or the provision of FAPE to a pupil.  An impartial hearing is a formal process in which the parties (i.e., the parents and the school district) nowadays their case and refute evidence earlier an impartial hearing officer (IHO) who issues a written decision. The IHO is not an employee of the school district or NYSED and is specifically trained to hear and decide special education cases. The IHO'southward conclusion is legally binding and enforceable in any Land court of competent jurisdiction (a State courtroom that has authorisation to hear this type of instance) or in a federal district court of the The states.

Overview of the Impartial Hearing Process

• Either the parent or schoolhouse district requests an impartial hearing relating to a disagreement on a special educational activity matter.
• The schoolhouse district informs the parent of the availability of arbitration, provides the parent with a copy of the Procedural Safeguards Notice, and informs the parent of any free or low-cost legal or other relevant services available in the area.
• The schoolhouse commune selects the IHO through a rotational option procedure in accordance with regulatory timelines.  The board of education immediately appoints the IHO.
• The school district convenes a resolution meeting for a parent requested hearing.
• The IHO presides over the hearing at which the parties take an opportunity to present evidence and testimony.
• The student remains in his or her current placement during the impartial hearing proceedings (unless the parents and school district otherwise agree and except as otherwise provided for expedited impartial hearings for certain disciplinary suspensions or removals of a student).
• The IHO makes a decision and mails the finding of fact and decision to the parties and to NYSED in accordance with regulatory timelines.
• The decision of the IHO is final unless appealed to a State Review Officer (SRO) of NYSED.

The following Questions & Answers (Q&A) provide responses to frequently asked questions about the impartial hearing process in New York State and compliments the federal and State legal and regulatory requirements by assisting all parties to better understand their responsibilities relating to impartial hearings so that disputes over special education are resolved in a legally compliant and timely manner. These responses are provided as informal guidance and are not legally bounden but represent the interpretation by NYSED of applicable statutory and regulatory requirements and the circumstances presented.

[viii NYCRR(footnote ii) Sections 200.5(i), 200.5 (j) and 201.11]

1.  How does a parent request an impartial hearing?

A parent requests an impartial hearing by writing to the board of education of the kid's school district. Whatsoever administrative official or other personnel of the school district who receives the written request (also known equally a due process complaint notice) must frontwards it immediately to the lath of teaching, so the school district can immediately, but in no case later than two business concern days after the receipt of the asking, initiate the process to select the IHO.

2. How long does a parent take to file a due process complaint?

The request for an impartial hearing must be submitted within two years of the date the parent or bureau knew or should accept known about the alleged action that forms the basis of the due process complaint, except that the 2-year timeline shall not apply to a parent if the parent was prevented from requesting the impartial hearing due to specific misrepresentations by the schoolhouse district that information technology had resolved the trouble forming the basis of the due process complaint or the school district's withholding of data from the parent that was required to be provided to the parent.

three.If a parent verbally requests an impartial hearing at a CSE or CPSE meeting, does he or she notwithstanding need to submit the request in writing?

Yeah. The request for an impartial hearing must exist in writing.

iv. What information should a parent provide in the written request for an impartial hearing?

The written request for the hearing must include data that describes the nature of the problem and facts relating to the problem, likewise every bit a proposed resolution of the trouble, to the extent known and available to the parent at the time of the written request for the hearing. A request for hearing is deemed sufficient unless at that place is an accusation that information technology is non.  It is important for the parent or the attorney representing the parent to provide the school district with specific data about the student and the basis of the dispute. This notice to the school district will provide the school district with an understanding of the parent's concerns and may event in the school district and the parent working together to resolve the problem, perhaps removing the need to keep to an impartial hearing.  The parent, or the attorney representing the parent, may not have a hearing unless the written asking for the hearing includes the required data.

A request for an impartial hearing must include:

• the proper noun of the student;
• the address of the residence of the student;
• the name of the school the student is attending;
• a description of the nature of the problem of the student relating to the proposed or refused initiation or alter, including facts relating to the problem; and
• a proposed resolution of the problem to the extent known and available to the parents at the fourth dimension.

five. Is in that location a sample form to request an impartial hearing?

Yes, NYSED is required under federal constabulary and regulations to develop a Sample Due Process Complaint Notice course that may be used to asking an impartial hearing to resolve a disagreement almost the referral, evaluation or placement of a educatee or regarding the provision of FAPE for a student under the Thought. (https://www.p12.nysed.gov/specialed/formsnotices/dueprocesscomplaint/cover314.htm) School districts must provide information to parents about the availability of this class. Schoolhouse districts, parents or their attorneys may choose to use this form or provide the required information in Question #iv in some other format.

6.How does a schoolhouse district notify a parent if the district is the party initiating an impartial hearing?

The parent will receive a re-create of the schoolhouse district'due south due process complaint notice.

7. May a school commune deny a parent'due south request for an impartial hearing?

No. The school district does not have say-so to deny a parent'south written request for an impartial hearing upon receipt of a due procedure complaint notice. The board of instruction of the school district must engage an IHO even if a political party believes that the nature of the disagreement is not appropriate for an impartial hearing. An IHO is the only person with authorisation to decide whether an issue is subject to the due procedure complaint procedure and whether a written request for an impartial hearing is sufficient.

8. Can a schoolhouse district claiming a parent'south due procedure complaint notice?

If the party receiving the due process complaint notice believes the notice does not include all the required data, information technology must notify the IHO and the other party in writing within 15 days of receiving the due process complaint discover. Within five days of the receipt of the notice of insufficiency, the IHO must make a determination on the face of the discover of whether the notification meets the requirements and must immediately notify the parties in writing of such determination.

9. What happens if an IHO determines that a parent's due process complaint find is bereft?

A due process complaint discover that is found insufficient must be amended and resubmitted. A political party may amend its due process complaint only if:

• the other party consents in writing to such amendment and is given the opportunity to resolve the complaint through a resolution meeting; or
• the IHO grants permission, except that the IHO may only grant such permission at whatsoever time not afterwards than five days earlier an impartial hearing commences.

10. What happens to the timeline of the hearing if the due process complaint is amended?

The applicative timelines for an impartial hearing, including the timelines for the resolution process, must recommence at the time the political party files the amended due process complaint notice.  The timelines do not recommence at the fourth dimension the party initially requests to amend its complaint or amends the complaint without written agreement by the other political party or permission from the IHO as referenced above.

11. When is a written request past a parent for an impartial hearing considered "received" by the school commune?

A written request past a parent for an impartial hearing is considered "received" on the first business concern solar day it is delivered to the schoolhouse district. A business day means Monday through Friday, except for federal and State holidays (unless holidays are specifically included in the designation of business solar day).

12. What must a school commune exercise when information technology receives the parent's written request for an impartial hearing?

Upon receipt, the parent's written asking for an impartial hearing must exist engagement stamped and immediately forwarded to the person(s) the board of educational activity has designated to brainstorm the rotational selection procedure for an IHO. The school district must then inform the parent of the availability of mediation and provide a copy of New York Country'south Procedural Safeguards Find: Rights for Parents of Children with Disabilities, Ages 3-21 and a list of low-cost legal and other relevant services in the area available to the parent(s). (https://www.p12.nysed.gov/specialed/formsnotices/procedural-safeguards-detect.htm)

xiii. May a lath of pedagogy of the school district delay the initiation of an impartial hearing to see if the CSE or CPSE and parent(south) can resolve the matter outside of the impartial hearing, through mediation or participation in the resolution procedure?

No. A school district and the parent should continue to work together to resolve the trouble that forms the basis of the due procedure complaint find.  The school commune must invite the parent to participate in a CSE/CPSE meeting and/or encourage mediation.  However, the board of pedagogy cannot delay initiating the impartial hearing once a written asking for the hearing is received. The process to select the IHO must begin immediately, but in no case afterwards than ii business days after receipt of the written request for the hearing. The board of education must then immediately appoint the IHO. The school district and parent may pursue a CSE/CPSE meeting and/or mediation while maintaining the request for an impartial hearing.  The parent may also choose to withdraw his or her request for an impartial hearing while he or she pursues a CSE/CPSE meeting, mediation, and/or a land complaint using the procedures indicated beneath referencing withdrawals.  The withdrawal should be in writing.

[viii NYCRR Sections 200.2(e) and 200.five(j)]

1. How is an IHO appointed?

Pick of an IHO must be fabricated on a rotational basis from an alphabetical list showtime with the first name after the IHO who concluding served in the schoolhouse district, proceeding through the listing until an engagement is accustomed. If no IHO on the list has served in that school district, then selection must be made beginning with the first proper name on the listing.

2. When must the process to select the IHO begin?

Following receipt of a written request for an impartial hearing from a parent, or the filing of a request by a school district, the school commune must immediately, but not later than two business days, initiate the process to select an IHO using a rotational pick process in accordance with State regulatory requirements. Once initiated, the selection process should continue in an expeditious manner. Once selected, the IHO must be immediately appointed by the board of education or by the designated representatives from the board.

3. Does a school commune need to look until the board of education meets and appoints the IHO?

No. The lath of education or trustees must immediately engage an IHO to conduct the hearing. A board of instruction may designate one or more of its members to appoint the IHO.

iv. Must an IHO be immediately available to hear a instance in order to be appointed?

An IHO may non take date of a case unless he or she is bachelor to make a determination of sufficiency of a due process complaint detect within five days of receiving such a asking and to initiate the hearing.

• When a school district files a due procedure complaint find, the hearing or prehearing conference must embark inside 14 days later on the date upon which the IHO is appointed; or
• when a parent files a due procedure complaint notice, the hearing or pre-hearing conference must embark with the first 14 days after:
  • the IHO receives the parties' written waiver of the resolution meeting; or
  • the IHO received the parties' written confirmation that a mediation or resolution meeting was held but no agreement was reached; or
  • the expiration of the xxx-day resolution period, whichever occurs first, unless the parties concur in writing to go on mediation at the cease of the 30-day resolution period, in which instance, the hearing or pre-hearing conference shall commence within the first fourteen days later on the IHO is notified in writing that either party withdrew from arbitration.

5. May parties to a hearing mutually agree to a particular IHO, disregarding the rotational selection process?

No. The IHO must be selected according to a rotational selection process.

[viii NYCRR Section 200.5(j)(2)]

1.  What is a resolution meeting?

A resolution meeting is a dispute resolution procedure that takes identify after a parent files a due process complaint. Resolution meetings allow parents of the student and the school district the opportunity to resolve issues earlier an impartial hearing happens.  The purpose of the resolution meeting is to achieve a prompt and early resolution of a parent's due process complaint to avoid the demand for a more plush, adversarial, and time-consuming impartial hearing.

2. Who participates in a resolution coming together?

The parent and school district determine the relevant members of the CPSE/CSE to attend the resolution coming together.  The school district must convene a resolution meeting with the parent and relevant members of the CPSE/CSE who have specific knowledge of the facts identified in the parent'south due process complaint.  The resolution meeting must include a representative of the school district who has decision-making potency on behalf of the district.  An attorney of the school district may non attend the resolution meeting unless the parent is accompanied past an attorney.  This is truthful fifty-fifty if a non-attorney abet attends the meeting on behalf of the parent.  Schoolhouse districts and parents are encouraged to cooperate in determining who volition attend the resolution coming together, considering a resolution meeting is unlikely to result in a resolution of the dispute if the parties cannot agree on who should nourish.

3. When does the resolution meeting occur?

The schoolhouse commune must convene a resolution coming together within xv calendar days of receiving the due process complaint notice from the parent. The meeting must occur unless the parent and school district agree, in writing, to waive the resolution procedure, or concord to use the mediation process.

4. Tin can the resolution meeting exist scheduled on a 24-hour interval that schoolhouse is not in session (e.1000., breaks or holidays)?

Yes. Even during periods when school is closed, the school commune must hold the resolution meeting within fifteen days of receiving discover of the parent's due process complaint notice.  The only exceptions to this requirement are if the parent and schoolhouse district agree in writing to waive the resolution coming together, or the parent and school district agree to utilise mediation. The schoolhouse district may not suspend the 15-day timeline for convening a resolution meeting while schools are closed for breaks or holidays.  Such a delay would be inconsistent with the 30-solar day resolution menstruation and would also filibuster the initiation of the 45-day timeline for issuing a final decision in an impartial hearing.

five. What if the parent cannot attend the resolution coming together in person?

The school district must attempt to schedule an in-person coming together with the parent within fifteen days of receiving the parent'south due procedure complaint notice.  If the school district notifies the parent of its intent to schedule a resolution meeting within the fifteen-day timeline and the parent informs the district in accelerate of the meeting that circumstances prevent the parent from attending the meeting in person, it would be advisable for a school commune to offering to use alternative means to ensure parent participation, such every bit video conferences or conference phone calls, subject to the parent's agreement.  Whether the coming together is conducted in person or past alternative ways, the school district must include the required participants and be prepared to discuss with the parent the facts that class the basis of the due procedure complaint and whatever possible resolution of the complaint.

6. What if the parent does non desire to participate in the resolution coming together and the school district does non agree to waive the coming together?

If the parent does non participate in the resolution meeting that the school district attempts to convene within 15 days of receiving the parent'southward due process complaint notice, the schoolhouse district must continue to make diligent efforts throughout the residue of the 30-day resolution flow to ensure the parent's participation in a resolution meeting.  At the conclusion of the 30-day resolution period, the school district may asking that a hearing officer dismiss the complaint when the commune is unable to obtain the participation of a parent in a resolution meeting, despite making reasonable efforts to obtain the parent'south participation and documenting its efforts.

7.  Can the parties waive the resolution meeting?

Yep, simply but by written agreement of both parties.

8. What if the school commune does not schedule the resolution meeting?

If the schoolhouse district fails to schedule and hold the resolution meeting within 15 calendar days of receiving the parent's due procedure complaint observe or fails to participate in the meeting, the parent may seek the intervention of the hearing officer to brainstorm the impartial hearing timeline.

ix. Are discussions at the resolution meeting confidential?

No. Discussions at the resolution meeting are not confidential and may be used as evidence in an impartial hearing or court proceeding.  However, the parent and the schoolhouse district may agree to go along them confidential and may sign a confidentiality agreement or include such agreement in the resolution agreement resolving the dispute.  All the same, the school district cannot require a confidentiality understanding as a status of participation in the resolution meeting.

x.  What if the parties modify their listen about the understanding after the resolution coming together?

Either party may void the resolution understanding within three business organisation days of the agreement'due south execution.

11. What if an agreement is not reached during the resolution meeting?

If the school district has not resolved the due process complaint within thirty days of the receipt of the due process complaint notice, the impartial hearing may occur.

[8 NYCRR Sections 200.5(i), 200.5 (j), 200.16(g) and 201.11]

1.Where are impartial hearings conducted?

An impartial hearing must be conducted at a location that is reasonably convenient to the parent and the student involved. The specific location is commonly adamant by the school district in consultation with the IHO and the parent. The location of the impartial hearing must ensure that information technology is airtight to the public, unless otherwise requested by the parent to be open, and must ensure that the hearing is conducted with confidentiality protected and without unnecessary interruptions. To avoid delays in scheduling hearings, in big school districts, multiple locations for hearings may need to be established. The IHO ultimately determines whether the time and place for the hearing is reasonably user-friendly to the parent and student involved.

2. Who is responsible to arrange for an interpreter of the deaf or an interpreter fluent in the native language of the student's parent if needed?

The school district is responsible for arranging for the presence and payment of interpreters.

3.  Under what circumstances may an IHO communicate with one party without the other party present?

No ex parte communication (communication with ane political party without the other party nowadays) should occur regarding the hearing bug. An IHO may discuss logistical information regarding a hearing with 1 or more of the parties such as the need for interpreters and accommodations, dates and times of the hearing, and whether the hearing is to exist open up or airtight to the public. However, an IHO must refrain from communicating with any party or political party representative virtually an upshot of fact or law related to the hearing except upon detect with opportunity for all parties to participate. Allegations that improper ex parte communication contacts compromised an IHO's impartiality may be brought to the IHO as a basis for recusal or a complaint may be filed under 8 NYCRR Department 200.21 in one case the hearing has concluded (see Section {G} below).

iv.  Must a parent or a schoolhouse district have an attorney to represent them at an impartial hearing?

No. Parents and school districts may represent themselves pro se (i.e., without an chaser) at an impartial hearing or may be represented by a non-attorney advocate.

v.  What does "open hearing" mean?

An "open hearing" means that whatsoever interested private may discover the impartial hearing. A parent may request that the impartial hearing be open to the public. The IHO remains responsible for ensuring that the parties to the hearing and the individuals observing the hearing conduct themselves in an orderly style. Parents should notation that confidentiality is waived in an open hearing.

6.  What happens if mediation is requested later on an impartial hearing has been requested?

If, after a request for an impartial hearing has been received, the parents and schoolhouse district initiate mediation to resolve the dispute that is subject field to the impartial hearing, the impartial hearing must still continue unless the request for the impartial hearing is withdrawn. The utilise of mediation may not deny or filibuster a parent'southward right to an impartial hearing. All the same, a party may request an extension of an impartial hearing in order to pursue mediation.

7. Is the student required to attend the hearing?

No. The parent has the right to determine whether the student attends the hearing.

viii. Is a prehearing conference required?

A prehearing conference is not currently required nether Country regulations yet utilise of a prehearing conference is strongly encouraged.

9. What is the purpose of a prehearing conference?

A prehearing conference is used to simplify and or clarify the issues; establishing date(s) for the completion of the hearing; identifying evidence to be entered into the record; identifying witnesses expected to provide testimony; and/or addressing other authoritative matters every bit the IHO deems necessary to complete a timely and efficient hearing.

10. How may a prehearing conference be conducted?

A prehearing briefing with the parties may be conducted in person or past phone.

eleven. Can a parent present testify at an impartial hearing?

Yeah. The parents, school authorities, and their respective counsel or representative, must have an opportunity to present testify, hogtie the attendance of witnesses and to confront and question all witnesses at the hearing.   Additionally, all show must be disclosed by each party to all other parties at least five business organisation days earlier the hearing. This five-twenty-four hour period disclosure requirement applies to all evidence and an IHO may bar any political party that fails to comply with this requirement from introducing the relevant evidence, including evaluations or recommendations at the hearing without the consent of the other party.

12.  Does the IHO have discretion to grant extensions to the due procedure timeline?

Yes, notwithstanding merely at the request of one of the parties to a hearing may an IHO grant extensions of time beyond the required time menses for the IHO to render and mail the decision. The reason for the extension must be documented in the hearing record. In deciding whether to grant a party's asking for an extension, the IHO should consider whether the filibuster in the hearing will positively contribute to, or adversely affect, the kid's educational interest or whether a party has been afforded a fair opportunity to present its case at the hearing in accordance with the requirements of due procedure; any adverse financial or other detrimental consequences likely to exist suffered by a party in the event of delay; and whether in that location has already been a delay in the proceeding through the actions of one of the parties. The IHO must non solicit extension requests or grant extensions on his or her own behalf or unilaterally issue extensions for any reason.  An extension may be for no more than 30 days and only one extension may exist granted at a time.

thirteen. Does the IHO have to respond in writing to a asking for an extension?

Aye. The IHO must promptly respond in writing to each request for an extension and must set along the facts relied upon for each extension granted.  The response must become role of the record.  If an oral asking for an extension is made on the record, the IHO may render an oral conclusion to that request but must after provide that determination in writing and include it every bit part of the record.

14. What happens to the timeline for a decision when an extension is granted?

For each extension granted, the IHO must set a new appointment for rendering his or her determination, and notify the parties in writing of such date, and as required, revise the schedule of remaining hearing dates to ensure that the IHO's decision is issued by the revised determination due appointment.

xv. Can multiple due procedure complaints apropos the same student be consolidated?

Yes. Due process complaint notices that are filed while an impartial hearing is pending before an IHO involving the same parties and the same pupil with a inability may be consolidated.  Consolidation means that the dissever impartial hearing requests involving the same parties and student with a disability would exist heard past the same IHO.  In one case appointed to a case in accordance with the rotational selection procedure, the IHO with the awaiting due process complaint must be appointed to a subsequent due process complaint unless that IHO is unavailable. This would be an exception to the IHO rotational selection process.

16.  Who determines that cases should or should not be consolidated?

The determination that cases should or should not be consolidated is made solely past the IHO and does not rely on agreement of the parties. The IHO may consolidate the new due procedure complaint with the pending complaint or determine that the new complaint keep separately as an private hearing before the aforementioned IHO. The IHO must consequence a written order equally to whether he or she volition or will not consolidate the complaints.  The written guild must include the reason(southward) (i.e., assay) for the IHO'due south decision.

17. What happens to the timeline of the hearing if due process complaints are consolidated?

If the due process complaints are consolidated, the timeline for issuance of a decision in the earliest awaiting due process complaint will apply.

18. Can a parent or school commune withdraw their request for a due procedure hearing?

Aye. A party may withdraw a asking for a due process hearing equally follows:

• Prior to the commencement of the hearing, a voluntary withdrawal by the party (i.e., parent or school commune) requesting the hearing must be accounted by the IHO to exist without prejudice unless the parties otherwise agree.
  • "Commencement of the hearing" means the get-go date the hearing is held after the initial prehearing conference, if a prehearing conference is conducted.
  • "Without prejudice" means that the party who requested the hearing and subsequently voluntarily withdraws the request can asking the hearing once more on the same issue(s) at a later date provided the subsequent hearing request is made inside the applicable time period set forth in the police force.
• For withdrawals made after get-go of the hearing, the party seeking to withdraw the due process complaint must immediately notify the IHO and the other party. The IHO must consequence a written lodge terminating the hearing.  This written order is known as an "Social club of Termination."
  • The withdrawal is presumed to be without prejudice except that the IHO may, at the asking of the other party and upon observe and an opportunity for the parties to exist heard, upshot a written decision that the withdrawal volition be with prejudice. "With prejudice" ways that the party requesting the hearing cannot request a subsequent hearing on the aforementioned event(due south) included in the outset request for hearing unless the IHO's conclusion is appealed to a State Review Officer (SRO) who rules against the IHO's determination.

19.  Can a due process complaint be re-filed subsequently it has been withdrawn?

Yes, unless withdrawn with prejudice. If the party later on files a due process complaint within one yr of the withdrawal of a complaint that is based on or includes the aforementioned or substantially similar claims as made in a prior due procedure complaint that was previously withdrawn by the party, the schoolhouse district must engage the aforementioned IHO appointed to the prior complaint unless that IHO is no longer bachelor to hear the re-filed due process complaint. This would be an exception to the IHO rotational selection process.

20. What is the pupil's status during an impartial hearing?

During the pendency of any impartial hearing or any subsequent appeal to an SRO, unless the local board of education and the parents otherwise concur, the student must remain in the then-current placement of such student. This does non utilize to hearings involving preschool students with disabilities and/or impartial hearings involving the discipline of students with disabilities. During the pendency for whatever due process proceeding relating to the evaluation and initial placement in special instruction, unless the local lath of didactics and the parents otherwise agree, the pupil shall non exist evaluated and shall remain in the and so-electric current educational placement of such student or, if applying for initial admission to a public schoolhouse, must be placed in the public-school plan until all such proceedings accept been completed.

21. What happens if there is a dispute well-nigh pendency?

If at that place is dispute every bit to the status of the pupil during the impartial hearing (i.e., pendency), this upshot should be raised immediately with the IHO. The IHO may conduct a hearing to determine the student's pendency and should render a written conclusion regarding pendency equally before long every bit possible and prior to determining any other issue relating to the evaluation, identification or placement of a student. The conclusion of the IHO relating to pendency may be immediately appealed to the SRO.

22. Who has the brunt of proof in an impartial hearing?

Pursuant to Land constabulary, the brunt of proof in an impartial due process hearing to challenge the recommendation of a CPSE or CSE, or otherwise challenge actions or omissions relating to the provision of FAPE to a student with a disability, is placed on the school district (or State agency) providing special instruction to the student, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement.

23. Can testimony in an impartial hearing exist given by telephone?

Yep, The IHO may receive testimony by telephone, likewise as by video, provided that such testimony must be made under oath and subject to cross examination.

[8 NYCRR Sections 200.ane(10) and 200.21(b)]

1. What qualifications are needed for an individual to become certified as an IHO?

An IHO must:

1. be an individual admitted to the practice of law in the Country of New York who is currently in good standing and who has a minimum of two years' do and/or experience in the areas of pedagogy, special education, inability rights or ceremonious rights; or exist an individual certified by the Land of New York equally an IHO on September 1, 2001;
2. have access to the support and equipment necessary to perform the duties of an IHO;
3. be independent, shall not be an officer, employee or agent of the school district or of the board of cooperative educational services of which such schoolhouse district is a component, or an employee of NYSED, shall not accept a personal or professional interest which would conflict with his or her objectivity in the hearing, and shall non accept participated in whatever manner in the formulation of the recommendation sought to be reviewed; and
4. be certified by the commissioner of education equally an IHO eligible to bear hearings pursuant to Teaching Law, Section 4404(1) and discipline to break or revocation of such certification by the commissioner for proficient crusade in accordance with the provisions of State regulations.

2. Are there any prohibitions on who tin become an IHO?

Yes, certain prohibitions employ. No individual employed by a schoolhouse district, school or plan serving students with disabilities placed at that place by a school district CPSE or CSE may serve equally an IHO and no individual employed by such schools or programs may serve as an IHO for 2 years following the termination of such employment, provided that a person who otherwise qualifies to carry a hearing under this department must non be deemed an employee of the school district, school or program serving students with disabilities solely because he or she is paid past such schools or programs to serve as an IHO.

3. Tin can a parent or school district enquire an IHO to recuse him/herself from administering an impartial hearing?

Yes, however an IHO is not required to recuse him/herself upon receiving such a request from a parent or schoolhouse district.  If an IHO declines to recuse him/herself upon receipt of a request to do so, the matter may be included in an appeal of the IHO'due south decision to the SRO.

four.  Can a complaint against an IHO be filed past the parent or school district?

Yes, either a parent or a school district may file a complaint against an IHO either individually or jointly.

5. How is a complaint against an IHO filed?

Complaints alleging the misconduct or challenging the competence of an IHO must be made in a signed written statement to the commissioner of education and must contain a concise statement and documentation of the facts upon which the complaint is based equally required by State regulations.

half-dozen. Is there a time limit to filing a complaint confronting an IHO?

A written alphabetic character of a complaint against an IHO should be submitted, if possible, not later than one year after the date of the declared misconduct or incompetence.

7.  What happens if a complaint is founded?

If, upon a review of the facts, the commissioner finds misconduct or incompetence on the role of the IHO, the commissioner of didactics may issue a warning letter of the alphabet to the IHO containing an society for corrective action, or, depending on such factors as the level of misconduct or incompetence and the number of prior findings of misconduct or incompetence against the IHO, the certification of the IHO may be suspended or revoked.

[8 NYCRR Sections 200.5(j), 201.ii(f), 201.11]

ane.  What is an expedited impartial hearing?

An expedited impartial hearing is an impartial hearing conducted in an expedited mode nether certain limited circumstances, commonly involving the placement of a pupil with a disability in an interim alternative educational setting (IAES) because of issues arising from the field of study of such student.

two. Is the timeline the same for an expedited impartial hearing and a non-expedited impartial hearing?

No.  The schoolhouse commune must conform the expedited hearing according to the timeline identified in State regulations, unless the parent and school district concord in writing to waive the resolution meeting or concord to use mediation:

• A resolution meeting must occur inside seven days of receiving detect of the due process complaint notice.
• The expedited due process hearing may proceed unless the affair has been resolved to the satisfaction of both parties within xv days of receipt of the due process complaint observe.
• The expedited due process hearing must occur within 20 school days of the appointment the complaint requesting the hearing is filed.
• The impartial hearing officer must brand a determination within x school days after the hearing.
• The impartial hearing officer shall mail a re-create of the written, or at the option of the parents, electronic findings of fact and the conclusion to the parents, to the board of teaching and to NYSED'south Role of Special Teaching inside x school days afterwards the hearing.

three.  Tin the timeline of an expedited impartial hearing exist extended?

No. There tin be no extension to the timeline of an expedited impartial hearing.

[8 NYCRR Sections 200.v(j), 200.16(h) and 201.11]

1. How long does it accept for an impartial hearing decision to be rendered?

If a schoolhouse district files a due process complaint, the IHO'southward decision must be rendered and mailed or provided electronically to the parties not later than 45 days (thirty-days for a preschool kid) from the day subsequently the school commune'southward complaint is received past the other party and NYSED.

If a parent files a due process complaint, the decision is due non later than 45 days from the day after one of the post-obit events, whichever shall occur first:

1. both parties agree in writing to waive the resolution meeting;
2. later on either the arbitration or resolution meeting starts but before the cease of the thirty-day period, the parties agree in writing that no agreement is possible;
3. if both parties agree in writing to keep the mediation at the end of the 30-day resolution period, just later the parent or school district withdraws from the mediation process; or
4. the expiration of the 30-day resolution menses.

In cases where extensions of fourth dimension accept been granted beyond the applicable required timelines, the conclusion must be rendered and mailed no later than 14 days from the date the IHO closes the tape. Once a record is airtight there may be no further extensions to the hearing timelines.  Consequent with the intent of rendering timely decisions, if the new decision engagement is earlier than the 14th day from the date the IHO closes the record, the earlier appointment should exist the new decision date.

ii.  How is a decision of an IHO enforced?

The decision of an IHO is final and binding upon the parties, unless appealed to NYSED's Office of Land Review (OSR) (as farther discussed in question 4, below). In the event a school district does not implement the conclusion of an IHO, the parent(s) tin file a 60-day State complaint with NYSED or go to court. In the event the parent does not implement the decision of the IHO, the school district may pursue the matter in court.

3. Are impartial hearing decisions publicly available?

Yes. Impartial Hearing Decisions are posted on NYSED's Office of Special Pedagogy website at:(https://www.p12.nysed.gov/specialed/dueprocess/decisions/home.html).These decisions have been redacted to remove all personally identifiable information.

four. Tin an IHO's decision exist appealed?

Yep. Inside 40 days of the date of the decision, the parent and/or the school district has a right to entreatment the decision to an SRO under Education Police Department 4404 and the IDEA.

If either political party plans to appeal the decision, a observe of intention to seek review must be personally served upon the opposing party no later on than 25 days after the date of the decision sought to be reviewed.

An appealing political party's asking for review must be personally served upon the opposing party within 40 days from the date of the conclusion sought to be reviewed. An appealing party must file the discover of intention to seek review, notice of asking for review, request for review, and proof of service with the OSR within two days subsequently service of the request for review is complete. The rules of process for appeals before a SRO are establish in Part 279 of the Regulations of the Commissioner of Didactics. A copy of the rules in Function 279 and model forms are available at the Function of State Review website (http://www.sro.nysed.gov).

5. How long does the appeal process accept?

The SRO must ensure that, not later on than 30 days after the receipt of a request for a review, a final decision is reached and a copy of the written decision, or at the option of the parents, electronic findings of fact and the decision, is mailed to each of the parties, except that a SRO may grant specific extensions of fourth dimension beyond this period at the request of either political party.

six.  Can the decision of the SRO exist appealed?

The written decision of the SRO shall be terminal, however either party may seek judicial review by means of a proceeding pursuant to article 4 of New York's Ceremonious Practise Police and Rules or 20 U.S.C. Department 1415.

Footnote 1: Parent is generally defined every bit a birth natural or adoptive parent, a guardian, a person in parental relationship to the child or a surrogate parent (viii NYCRR § 200.1(ii))

Footnote 2: Championship 8 of the New York Lawmaking of Rules and Regulations

chotheinguing.blogspot.com

Source: https://p12.nysed.gov/specialed/dueprocess/impartial-hearing-guidance-jan-2018.htm

Share this post