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:		Rebecca H. Cort
COMMITTEE:		EMSC - VESID
TITLE OF ITEM:		Judicial Review of a Written Decision of a State Review Officer
DATE OF SUBMISSION:		April 23, 2004
PROPOSED HANDLING:		Approval
RATIONALE FOR ITEM:		To align Commissioner’s Regulations with Education Law
STRATEGIC GOAL:		#4
AUTHORIZATION(S):

 

SUMMARY:
 

Attached is a proposed amendment of sections 200.5, 200.6 and 200.7 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 purpose of the proposed amendment is to align the Commissioner's Regulations with section 4404(3) of the Education Law, as amended by Chapter 492 of the Laws of 2003.  Chapter 492 amended section 4404(3) to provide that judicial review of the final determination or order of a State Review Officer be conducted in a proceeding pursuant to Article 4 of the Civil Practice Law and Rules (CPLR) rather than pursuant to Article 78 of the CPLR.  Judicial review under CPLR Article 4 ensures the State's compliance with the federal Individuals with Disabilities Education Act (IDEA) and its implementing regulations, which require that a review of the final determination or order be made on the entire record, with any additional evidence heard at the request of the party, and be based upon a preponderance of the evidence.  

 

 A Notice of Proposed Rule Making was published in the State Register on March 3, 2004.  An assessment of public comment is attached.  The regulations have a proposed effective date of June 10, 2004.

 

RECOMMENDATION:

            It is recommended that the Board of Regents take the following action:

 

VOTED:

            That paragraph (3) of subdivision (j) of section 200.5, subparagraph (iii) of paragraph (5) of subdivision (i) of section 200.6 and paragraph (4) of subdivision (d) of section 200.7 of the Regulations of the Commissioner be amended, as submitted, effective June 10, 2004.

 

Attachment

AMENDMENT TO THE REGULATIONS OF THE COMMISSIONER OF EDUCATION

                        Pursuant to sections 101, 207, 311, 4403, 4404 and 4410 of the Education Law and Chapter 492 of the Laws of 2003.

                        1.  Paragraph 3 of subdivision (j) of section 200.5 is amended, effective June 10, 2004, as follows:

                        (3)  The written decision of the State review officer shall be final, provided that either party may seek judicial review by means of a proceeding pursuant to article [78] 4 of the Civil Practice Law and Rules or 20 U.S.C. section 1415.

                        2.  Subparagraph (iii) of paragraph (5) of subdivision (i) of section 200.6 is amended, effective June 10, 2004, as follows:

                        (iii)  Where the department requires, as corrective action, that a board of education obtain prior approval for private day and residential school placements, the department’s determination to approve or deny any such application shall be made within 10 business days of a request by the board of education for such approval.  Where the department disapproves such a placement recommendation for an individual student, the parent may file with the department a written request for a hearing before an impartial hearing officer who will be designated by the department.  The procedures relating to notice and review of the disapproval of the recommended private or residential school placement shall be comparable to those set forth in section 200.5 of this Part, and shall be provided by the department.  Review of the determination of the hearing officer shall be available by means of a proceeding pursuant to article [78] 4 of the Civil Practice Law and Rules or 20 USC 1415, and may be instituted by any party to the hearing.

                        3.  Paragraph (4) of subdivision (d) of section 200.7 of the Regulations of the Commissioner of Education is amended, effective June 10, 2004, as follows:

                        (4)  If the commissioner declines to make a State appointment of a student who has been recommended for appointment by a State-operated or State-supported school, or if the Commissioner seeks to change a student's classification or placement against the recommendation of the State-operated or State-supported school which such student attends, the parent may request mediation or file with the department a written request for a hearing before an impartial hearing officer who will be designated by the department. Such a hearing officer shall not be an employee of the department.  The procedures relating to notice and review of a refusal of State appointment or of a change of classification or placement by the commissioner shall be comparable to those set forth in section 200.5(a) through (f) of this Part, and shall be provided by the Education Department. Review of the determination of the hearing officer shall be available by means of a proceeding pursuant to article [78] 4 of the Civil Practice Law and Rules or 20 USC 1415, and may be instituted by any party to the hearing.

PROPOSED AMENDMENT OF SECTIONS 200.5, 200.6 AND 200.7 OF THE REGULATIONS OF THE COMMISSIONER OF EDUCATION PURSUANT TO SECTIONS 101, 207, 4403 AND 4404 OF THE EDUCATION LAW AND CHAPTER 492 OF THE LAWS OF 2003, RELATING TO JUDICIAL REVIEW OF A WRITTEN DECISION OF A STATE REVIEW OFFICER.

ASSESSMENT OF PUBLIC COMMENT

            Since publication of a Notice of Revised Rulemaking on March 3, 2004, the Department received the following public comment:

COMMENT:

            The Buffalo City School District submitted a comment that proposed amendment appears to be technical in nature and therefore the district has no concerns regarding these changes.

DEPARTMENT RESPONSE:

            The proposed amendment aligns the Commissioner's Regulations with section 4404(3) of the Education Law, as amended by Chapter 492 of the Laws of 2003, and is technical in nature.

COMMENT:

            The Department of Correctional Services submitted a comment that the new language in the proposed rules provides clarity.

DEPARTMENT RESPONSE:

            The Department concurs with the comment.