The parent/person in parental relation of a student with a disability may file a written request with the Board for an impartial due process hearing with respect to any matter relating to the identification, evaluation, educational placement, provision of a free appropriate public education, manifestation determination or other matter relating to discipline. The Board may also initiate such hearing.

 

Rotational Selection List of Impartial Hearing Officers

 

The  Board  of  Education  will  utilize  the  New  York  State  Education  Department's  Impartial Hearing  Reporting  System  (IHRS)  to  access  the  alphabetical  list  of  the  name  of  each  Impartial Hearing Officer (IHO) who is certified by the Commissioner of Education and available to serve in the District.

 

Selection shall be made on a rotational basis beginning with the first name after the IHO who last served the District. If no IHO on the list has previously served the District, the first IHO on the list must be contacted.

 

Selection of the IHO

 

1)     The  Superintendent's  Secretary/District  Clerk  must  immediately  (but  not  later  than  two  (2) business days after receipt of the due process complaint notice or mailing of the due process complaint notice to the parent) initiate the process to select an IHO. The District selects the IHO through a rotational selection process in accordance with regulatory timelines.

 

2)    The IHO may not accept appointment unless he/she is available to make a determination of sufficiency of a due process complaint notice within five (5) days of receiving such a request and (unless an extension is granted) to initiate the hearing in a timely fashion:

 

a.       When  the  District  files  the  due  process  complaint  notice,  the  hearing  or  pre-hearing conference must commence within the first fourteen (14) days after the date the IHO is appointed;

 

b.        When a parent files the due process complaint notice, the hearing or pre-hearing conference must commence within the first fourteen (14) days after whichever of the following occurs first:

 

(1)     The date the IHO receives the parties' written waiver of the resolution meeting; or

(2)    The IHO receives the  parties'  written confirmation  that a mediation  or resolution meeting was held but no agreement could be reached; or

 

(3)    The expiration  of the thirty  (30) day resolution period unless the parties agree in writing to continue mediation at the end of the thirty (30) day resolution period. In such case,  the  hearing  or  pre-hearing  conference  will  commence  within  the  first fourteen (14) days after the IHO is notified in writing that either party withdrew from mediation.

 

3)      The  Superintendent's  Secretary/District  Clerk  will  contact  the  first  IHO  per  the  District's rotational  list  and  ask  him/her  if  he/she  is  available  for  appointment;  able  to  make  a determination of sufficiency of a due process complaint notice within five (5)days of receiving such a request; able to convene the hearing within the fourteen (14) day time:frame specified in

2) above (unless an extension is granted); and able to conclude the hearing within forty-five (45)

days after the date required for commencement of the impartial due process hearing specified in

2) above.  For expedited  hearings the deadline  for starting  the hearing is within twenty  (20)

school days of the date the complaint requesting the hearing was filed; for preschool hearings the time:frame is thirty (30) days after the receipt by the Board of a request for a hearing or after the initiation of such hearing by the Board.

 

4)     If the first IHO selected from the rotational list declines appointment, or within twenty-four (24) hours of the District's documented attempt to contact him/her fails to respond, or is unreachable despite reasonable efforts by the District, the next IHO on the list shall be offered appointment until the appointment is accepted by an IHO.

 

5)     IHOs  may  respond  to the District  via facsimile,  electronic  mail, certified  overnight  mail or telephone contact that is recorded and confirmed in writing.

 

Appointment ofiHO/Schedulingof Hearing or Prehearing Conference

 

When the selected IHO indicates availability, the Board of Education must immediately appoint the IHO. To expedite this process the Board may designate one (1) or more of its members to appoint the IHO on behalf of the Board. Along with the appointment letter, the Board will forward:

 

1)      A copy of its policy regarding compensation rates for IHOs and reimbursement of hearing related expenses including travel;

 

 2)     A copy of the date-stamped written request for the hearing or a copy of the written notice to the parent that the District is initiating the request;

 

3)     The name, address and telephone number of the individual representing the School District at the impartial due process hearing;

 

4)      The name, address and telephone number of the individual representing the parent of the student, if available; and

 

5)     Any other information that will facilitate contact between representatives of the parties.

 

Impartial Due Process Procedure

 

The request for an impartial due process hearing must be submitted within two (2) years of the date the parent or the District knew or should have known about the alleged action forming the basis of the complaint. However, the two (2) year timeline does not apply if the parent was prevented from requesting the hearing due to specific misrepresentations by the District that it had resolved the problem or the District's withholding of information from the parent that is required by Commissioner's Regulations.

 

The parent or the School District may request an impartial due process hearing by first submitting a due process complaint notice.

 

Due Process Complaint Notification

 

1)    A hearing may not be held until a due process complaint notice is filed. Either the parent, the District, or the attorney representing either party may present a complaint with respect to any matter relating to the identification, evaluation or educational placement of a student with a disability or a student suspected of having a disability, or the provision of a free appropriate public education to such student.

 

This written due process complaint notice must include:

 

a.      The name of the student;

 

b.      The address of the student's residence or, in the case of a homeless student, available contact information;

c.       The name of the school the child is attending;

 

d.      A description of the nature of the problem of the student relating to the proposed or refused initiation or change, including facts relating to the problem; and

 

e.       A proposed resolution of the problem to the extent known and available to the party at the time.

 

2)     The due process complaint notice will be deemed sufficient unless the party receiving the notice notifies the other party and the IHO inwriting within fifteen (15) days of receiving the notice that they believe the notice requirements have not been met.

 

3)     Within  five  (5)  days  of  the  receipt  of  the  notice  of  insufficiency,  the  IHO  shall  make  a determination on the face of the notice of whether the notification meets the notice requirements and shall immediately notify the parties in writing of the determination.

 

4)     If  the  District  has not  sent a  prior  written  notice  (notice  of  recommendation)  to the  parent regarding  the subject matter of the complaint notice, the District will send a response  to the parent within ten (10) days of receiving the complaint which includes:

 

a.       Anexplanation  of why the District proposed or refused to take the action  raised in the complaint;

 

b.       A description of other options the Committee on Special Education(CSE)/Committee  on

Preschool Special Education (CPSE) considered and why those options were rejected;

 

c.       A description of each evaluation procedure, assessment, record, or report the District used as a basis for the proposed or refused action; and

 

d.       A description of the factors relevant to the District's proposal or refusal.

 

5)      Upon  receipt  or  filing  of  the  due  process  complaint  notice,  the  District  will  provide  the procedural safeguards notice to the parents. The District will also inform parents in writing of the availability of mediation and of any free or low-cost legal and other relevant services available in the area.

 

6)      Within ten (10) days of receiving the complaint notice, the non-complaining party must send a response specifically addressing the issues raised in the notice.7)      A party may amend its due process complaint notice only if:

 

a.        The other party consents in writing and is given the opportunity to resolve the complaint through a resolution process;

 

b.       The IHO grants permission, but not later than five (5) days before the impartial due process hearing commences.

 

Applicable timelines for the impartial due process hearing will recommence at the time of the filing of the amended notice.

 

8)     No issues may be raised at the impartial due process hearing that were not raised in the due process complaint notice.

 

Resolution Process

 

1)     Within fifteen (15) days of receiving the due process complaint notice from the parent and prior to the due  process hearing  itself,  the District  shall convene a meeting  with  the parents  and relevant members of the CSE/CPSE, as determined by the District and the parent, who have specific knowledge of the facts identified in the complaint. A representative of the District who has decision-making authority must attend. The attorney for the District may not attend unless the  parent  is  accompanied  by  an  attorney.  At  this  resolution  meeting,  the  District  has  the opportunity  to resolve  the complaint  after  the  parents  discuss  their  complaint  and the  facts forming its basis.

 

The  District  will take steps  to ensure that  one or  both of  the parents of  the student  with a disability are present at the resolution meeting, including notifying parents of the meeting early enough to ensure that they will have the opportunity to attend and scheduling the resolution meeting at a mutually agreed on time and place and in a location that is physically accessible to the parents.

 

2)     When conducting  meetings and carrying out administrative  matters (such as scheduling), the parent and District may agree to use alternative means of meeting participation such as video conferences or conference calls.

 

3)     The parent and District may agree in writing to waive the resolution process or agree to use the mediation process to resolve the dispute.4)     If a settlement is reached, the parties shall execute a legally binding agreement signed by the parent  and  the  representative  of  the  District  who  has  authority  to  bind  the  District.  This agreement is enforceable in court. However, either party may void the agreement within three (3) business days of the agreement's execution.

 

5)     If the District has not resolved the due process complaint to the satisfaction of the parents within thirty (30) days of receipt ofthe complaint notice, the impartial hearing process may begin.

 

6)     Except where the parties have jointly agreed to waive the resolution process or use mediation, the failure of a parent filing a due process complaint to participate in the resolution meeting will delay the timeline for the resolution process and due process hearing until the meeting is held:

 

a.       If the District is unable to obtain the participation of the parent in the resolution meeting after  reasonable  efforts  have  been  made  (and  documented),  the  District  may,  at  the conclusion of the thirty (30) day period, request that an impartial hearing officer dismiss the parents due process complaint.

 

b.      If the District fails to hold the resolution meeting within fifteen (15) days of receipt of the parents' due process complaint or fails to participate in the resolution meeting, the parent may seek the intervention of the IHO to begin the due process hearing timeline.

 

Pre-Hearing Conference

 

A pre-hearing conference (which may take place via telephone) may be scheduled by the IHO to simplify or clarify issues; establish dates for the completion of the hearing; identify evidence to be entered into the record; identify witnesses expected to provide testimony; and/or address other administrative issues. A transcript or written summary of the pre-hearing conference shall be entered into the record by the IHO.

 

Impartial Due Process Hearings

 

In the event the complaint is not resolved in a resolution process, the Board will arrange for an impartial due process hearing to be conducted. When carrying out administrative matters relating to an impartial due process hearing, such as scheduling, exchange of witness lists and status conferences, the parent and District may agree to use alternative means of meeting participation such as video conferences or conference calls.1)     Hearings  and  pre-hearing  conferences  will  be  conducted  at  a  time  and  place  reasonably convenient to the parent and the student involved. Preferred locations are the school the student attends or the District Office.

 

2)      The hearing shall be closed to the public unless the parent requests an open hearing. The parents determine whether the student will attend the hearing.

 

3)     Where required, the District  will provide interpreters of the deaf or interpreters fluent in the native language ofthe  student's parent at all stages of the proceeding.

 

4)       The IHO is authorized to administer oaths and issue subpoenas relating to the proceedings.

 

5)     A written, or at the option of the parent, electronic verbatim record of the proceeding shall be maintained and made available to the parties.

 

6)     The IHO,  wherever practicable,  shall enter into the record a stipulation of facts and/or joint exhibits agreed to by the parties.

 

7)     The  IHO  may  receive  any  oral,  documentary  or  tangible  evidence  including  testimony  by telephone, provided that such testimony shall be made under oath and shall be subject to cross­ examination.  Also,  the  IHO  may  take  direct  testimony  by  affidavit  in  lieu  of  in-hearing testimony, provided that the witness giving such testimony shall be made available for cross­ examination. Further, the IHO shall exclude evidence that he/she determines to be irrelevant, immaterial, unreliable or unduly repetitious.

 

8)     The  IHO  may  limit  examination  of  a  witness  by  either  party  if  whose  testimony  the  IHO determines to be irrelevant, immaterial or unduly repetitious. The IHO may limit the number of additional witnesses to avoid unduly repetitious testimony.

 

9)     Each party shall have up to one (1)day to  present its case  unless the IHO determines  that additional  time  is  necessary  for  a full,  fair  disclosure  of  the facts required  to  arrive  at  the decision. Additional hearing days, if required, shall be scheduled on consecutive days wherever practicable.

 

10)   The parties may be accompanied and advised by legal counsel and by individuals with special knowledge or training regarding students with disabilities.

  

11)   At all  stages of  the proceeding, the IHO  may assist an  unrepresented party by providing information relating only to the hearing process. However, this shall not be construed to impair or limit the authority of an IHO to ask questions of counsel or witnesses for the purpose of clarification or completeness of the record.

 

12)   The parties will have an opportunity to present evidence, compel the attendance of witnesses and confront and question all witnesses at the hearing.

 

13)   Not less than five (5)business days before the hearing, each party shall disclose evidence that will be presented at the hearing, including all evaluations completed by that date and recommendations based on such evaluations. The IHO may bar any party that fails to comply with  such requirement from introducing the relevant evaluation or  recommendation if  not disclosed to the other party prior to the hearing, unless the other party consents.

 

14)   If the IHO requests an independent educational evaluation as part of a hearing, the cost of the evaluation must be at public expense.

 

15)   If by mutual agreement the parties deem the IHO to be incapacitated or otherwise unavailable or unwilling to continue the hearing or issue the decision, the Board shall rescind the appointment of the IHO and appoint a new IHO.

 

16)  The student remains in his/her current placement during the pendency of the impartial due process hearing unless both parties agree or except as otherwise provided for expedited impartial due  process hearings for  certain disciplinary suspensions or  removals of  a  student. For a preschool child not currently receiving special education services and programs, he/she may, during any impartial due process hearings or appeals, receive special education services and programs if the parent/person in parental relation and the District agree. However, during the pendency of an appeal for a preschool child who is transitioning from an Early Intervention (EI) program and is no longer eligible for the EI program due to age, the District is not required to provide the services the child had been receiving under EI. If found eligible for special education as a preschool student with a disability, and if the parent consents to the initial provision of services, the District will provide those programs and services that are not in dispute.

 

17)  A decision made by the IHO must be made on substantive grounds based on a determination of whether the student received a free appropriate public education (FAPE).

18)  In matters alleging  procedural  violations,  the IHO may only find that the student  did not receive a  FAPE  if  the  procedural  inadequacies impeded  the  student's  right  to  a  FAPE,  significantly impeded  the  parent's  opportunity to  participate  in  the  decision-making process  regarding  the provision of a FAPE, or caused a deprivation of educational  benefits. However, the IHO may nonetheless  order the District to comply with appropriate procedural  requirements.

 

19)   The IHO  renders  and  forwards  the finding  of fact  and decision  to the parties  and  to the State Education  Department  in accordance  with regulatory  timelines  but not later than forty-five  (45) days after the date required  for commencement of the impartial  due process hearing  specified  3)  of  the  subheading   "Selection   of  the  IHO"  in  this  regulation.  For  expedited  hearings  the deadline  is within ten (10) school days after the hearing; for preschool  hearings the timeframe  is thirty (30) days after the receipt by the Board of a request for a hearing or after the initiation  of in such hearing by the Board.

 

20)    The decision of the IHO is final and binding on both parties unless appealed  to the State Review

Officer (SRO).

 

Burden of Proof

 

In accordance  with New York State law, the burden of proof and persuasion  in an impartial  due process  hearing  dispute  relative  to  a  student's  special  education   placement   rests  upon  the  school district.  However, a parent/person in parental  relation  seeking  tuition  reimbursement  for a unilateral parental placement  shall have the burden of persuasion  as to the appropriateness of the placement.

 

Guardians ad Litem

 

Unless a surrogate  parent  has been previously  appointed,  the IHO must appoint  a guardian  ad litem when he/she determines that the interests of the parent(s)  are opposed  to or are inconsistent  with those  of  the  student  or  whenever   the  interests   of  the  student   would  be  best  protected   by  such appointment.

 

Extensions of Time

 

The IHO may grant a request for an extension  only after fully considering  the cumulative  impact ofthe following factors:

 

1)      The impact on the child's educational  interest  or well-being  which might be occasioned  by the delay;2)     The need of a party for additional time to prepare or present the party's position at the hearing in accordance with the requirements of due process;

 

3)     Any financial or other detrimental consequences likely to be suffered by a party in the event of delay; and

 

4)      Whether there has already been a delay in the proceeding through the actions of one of the parties.

 

Each extension may be for no more than thirty (30) days, and not more than one extension at a time may be granted.

 

No extension may be granted to an expedited impartial hearing timeline.

 

Agreement of the parties is not a sufficient basis for granting an extension. Absent a compelling reason or a specific showing of substantial hardship, a request for an extension shall not be granted for the following reasons:

 

1)      School vacations;

 

2)     A lack of availability resulting from the parties' and/or representatives' scheduling conflicts;

 

3)      Settlement discussions between the parties; or

 

4)      Other similar reasons.

 

The IHO shall respond in writing to each request for an extension. The response shall become part of the record. The IHO may render an oral decision to an oral request for an extension, but shall subsequently provide that decision in writing and include it as part of the record. For each extension granted, the IHO shall set a new date for rendering his/her decision, and notify the parties in writing of such date.

 

Decision and Appeal

 

The IHO renders and mails a copy of the written, or at the option of the parents, electronic findings of fact and the decision to the parties and to Vocational and Educational Services for Individuals with Disabilities (VESID) not later than forty-five (45) days [thirty (30) days for preschool hearings] from the date required for commencement of the impartial due process hearing. For expedited hearings these findings must be distributed within ten (10) school days after the hearing. The record and findings will

 be provided at no cost to the parents and all personally identifiable information shall be deleted from the copy forwarded to VESID.

 

In cases where extensions of time have been granted beyond the applicable required timelines, the decision must be rendered and mailed no later than fourteen (14) days from the date the IHO closes the record. The date the record is closed shall be indicated in the decision.

 

The IHO shall determine when the record is closed and notify the parties of the date the record is closed. The decision of the IHO shall be based solely upon the record of the proceedings before the IHO, and shall set forth the reasons and the factual basis for the determination.

 

The decision shall reference the hearing record to support the findings of fact. The IHO shall attach to the decision a list identifying each exhibit admitted into evidence. Such list shall identify each exhibit by date, number of pages and exhibit number or letter. In addition, the decision shall include an identification of all other items the IHO has entered into the record.

 

The decision shall also include a statement advising the parents and the Board of Education of the right of any party involved in the hearing to obtain a review of such a decision by the State Review Officer in accordance with Commissioner's Regulations.

 

The decision of the IHO shall be binding upon both parties unless appealed to the State Review

Officer.

 

Confidentiality

 

All issues relating to a request for and conduct of an impartial due process hearing must be kept confidential by all District staff.

 

Compensation of Impartial Hearing Officers

 

The District will be responsible for compensating  the IHO for pre-hearing, hearing and post­ hearing  activities  at  the  rate  agreed  upon  at  the  time  of  the  IHO's  appointment.  The  rate  of compensation  may not exceed  the maximum  rate approved  by the Director of the Division of the Budget. The District will also reimburse the IHO for travel and other hearing-related expenses (e.g., duplication and telephone costs) pursuant to an annually determined schedule.

 

At the completion of the impartial due process hearing, the IHO should submit an itemized bill of hourly charges and expenses which will be promptly paid by the District.On an annual basis the District will forward a copy of its compensation rates to each IHO on the

District's rotational list.

 

Mediation

 

The District will inform the parent, in writing, of the availability of mediation and any free or low-cost legal and other relevant services available in the area at the request of the parent or when an impartial due process hearing is requested.

 

Mediation is voluntary and does not deny or delay a parent's right to an impartial due process hearing. If mediation is initiated after a request for an impartial due process hearing has been received, the impartial due process hearing must continue unless the request for the impartial due process hearing is withdrawn. However, a party may request an extension to an impartial due process hearing in order to pursue mediation.

 

Expedited Due Process Hearings

 

Expediteddue process hearings shall be conducted at the request: Of the District

1)     To place a student with a disability in an interim alternative educational setting (IAES) where school personnel maintain it is dangerous for the student to remain in his/her current education placement; or

 

2)     To place a student with a disability in an IAES during the pendency of due process hearings where school personnel maintain it is dangerous for the student to remain in his/her current education placement; or

 

Of the Parent

 

1)    From a  determination that the  student's behavior was not a  manifestation of the student's disability; or

 

2)     Relating to any decision regarding a disciplinary change in placement including, but not limited to, a decision to place the student in an IAES.

 

Anexpedited due process hearing must occur within twenty (20) school days of the date the complaint requesting the hearing was filed. The IHO renders and mails the fmding of fact and decision to the parties and to VESID within ten (10) school days after the last hearing date. The parents may

 opt to receive this information  in electronic  form. No extension to an expedited  impartial hearing timeline may be granted.

 

Recordkeeping and Reporting

 

The  District  will record  and  report  to the State  Education  Department  required  information relating to impartial due process hearings according to the manner and schedule specified by the State Education Department.

 

Web-based Reporting System

 

The Superintendent will designate a staff member(s) to be responsible for reporting such information as required relating to the impartial hearing process into the State Education Department's web-based reporting system.

 

Pursuant  to this requirement,  the School District must enter certain enumerated data into the web-based reporting system beginning as soon as a request for an impartial due process hearing is received by the Board of Education. The District will also need to enter information on the progress of each case until the case is either decided, settled,withdrawn, or dismissed.

 

District Rotational List

 

The  District  will  utilize  the  New  York  State  Education  Department's  Impartial  Hearing

Reporting System to access the current District specific list of IHO names.

 

Initiation of Request for Hearing

 

The  Superintendent's  Secretary/District  Clerk  will  date  stamp  and  record  on  Impartial  Due Process Hearing Record Sheet (Form #7670F) the receipt of the written request for an impartial due process  hearing.  The Superintendent's  Secretary/District  Clerk  will  also  record  on  Impartial  Due Process Hearing Record Sheet (Form #7670F) the date the parent is sent the procedural safeguards notice and information about mediation and legal representation.

 

IHO Selection and Appointment

 

The Superintendent's Secretary/District  Clerk will document on Impartial Due Process Hearing Record Sheet (Form #7670F) each contact of and response by each potential IHO from the rotational list, the date of the appointment letter and the actual dates of the hearing.

 Conductand Result of Hearing

 

Additional information to be recorded on Impartial Due Process Hearing Record Sheet (Form

#7670F) is as follows:

 

1)      Anticipated date the IHO will render a decision;

 

2)       Dates for any requests for extensions of the required timelines of 45/30/15 days;

 

3)       Which party requested the extension(s);

 

4)       Whether the extension(s) was granted or denied;

 

5)      The reason for the grant or denial;

 

6)       The new decision date if an extension was granted;

 

7)      The date the finding of fact and decision was rendered; and

 

8)       The date the decision was implemented.

 

 

 

 

 

 

NOTE:      For  New  York  State Education  Department Due  Process Complaint Notice Form  to Request an Impartial Due Process Hearing,see website: http://www.vesid.nysed.gov/specialedlpublications/policy/dueprocess7105.htm