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  determinations for students with disabilities

DATE OF SUBMISSION:

July 30, 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 was adopted as an emergency action at the June Regents meeting and is now being proposed for adoption as a permanent rule, effective September 30, 2004.  A Notice of Emergency Adoption and Proposed Rule Making was published in the State Register on July 14, 2004.  In addition to adopting the amendment as a permanent rule, a second emergency adoption is necessary to ensure that the rule remains continuously in effect until the effective date of the permanent rule.  A Statement of the Facts and Circumstances Which Necessitate Emergency Action is attached.

 

            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 September 14, 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 ensure that the rule remains continuously in effect until the effective date of its adoption as a permanent rule, and thereby ensure compliance with Federal requirements for receipt of funds under the IDEA. 

 

VOTED: That section 279.12 of the Regulations of the Commissioner of Education be amended as submitted, effective September 30, 2004

 

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

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 rule was adopted at the June 21-22, 2004 Regents meeting, as an emergency measure, effective June 25, 2004, 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. 

The proposed rule is being presented to the Board of Regents for adoption as a permanent rule at their September 9-10, 2004 meeting, which is the first scheduled meeting after expiration of the 45-day public comment period mandated by the State Administrative Procedure Act.  Pursuant to SAPA section 202(5), the permanent adoption cannot become effective until after its publication in the State Register on September 29, 2004.  However, the June emergency adoption will expire on September 22, 2004, 90 days after its filing with the Department of State on June 25, 2004.  A second emergency adoption is therefore necessary to ensure that the rule remains continuously in effect until the effective date of its adoption as a permanent rule, and thereby ensure compliance with Federal requirements for receipt of funds under the IDEA. 

 

 

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 September 14, 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.

 

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 September 30, 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.