0604bra6

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 officer determinations for students with disabilities
DATE OF SUBMISSION:	June 9, 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 is being proposed for adoption as an emergency measure. A Statement of Facts and Circumstances Which Necessitates Emergency Action is attached. It is anticipated that the proposed amendment will be presented to the Board of Regents for adoption as a permanent rule at the September 9-10, 2004 Regents meeting, effective September 30, 2004. A Notice of Emergency Adoption and Proposed Rule Making will be published in the State Register on July 14, 2004.

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 June 25, 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 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.

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

Emergency action to adopt the proposed rule is necessary 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. It is anticipated that the proposed amendment will be presented to the Board of Regents for adoption as a permanent rule at the September 9-10, 2004 Regents meeting, effective September 30, 2004.

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 June 25, 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.

The Honorable the Members of the Board of Regents