NY State Ed. proposes regulatory changes to impartial hearing process

This is a must read for New York State special education attorneys. As practitioners of special ed law are aware, State Ed. has heightened enforcement efforts with respect to timeline requirements for the conduct of impartial hearings. Most recently, the SRO has come down hard on a number of IHOs who have done little more than what just about every IHO does – i.e. schedule hearings on dates that work for the parties and the attorneys and grant extensions when it makes sense to do so (see SRO 11-091 and 11-112). What was ordinary course of procedure may be and certainly was perceived to have been at odds, however, with the statutory and regulatory timeline requirements. Now, State Ed. has proposed significant changes to the regulations governing the conduct of hearings. The proposed changes address:

1. Certification and appointment of IHOs;
2. Consolidation of multiple due process requests for the same student ( subsequent hearing requests assigned to same IHO if original complaint is still pending) ;
3. Prehearing conferences (if the proposed changes are to go into effect, these changes could dramatically restrict the scope of and evidence permitted at hearing);
4. Withdrawals of requests for due process hearings (withdrawal without prejudice permitted as a matter of course only prior to the commencement of the hearing or prehearing conference; resubmission of a similar hearing request within one year will result in the assignment of the same IHO)
5. Extensions to the timelines for an impartial hearing decision (one 30 extension would now be permitted for settlement negotiations);and
6. Timeline to render a decision.

There are some very positive changes proposed including:

1. The proposed regulations would expressly authorize IHOs to issue consent orders, something that is presently routine across New York State, but which has been fiercely resisted in NYC.
2. The regs governing the granting of extensions would now permit an extension to allow for negotiations as noted above. Also, the factors to be considered by the IHO in determining whether to grant the extension include “whether the delay in the hearing will facilitate other matters that will positively contribute to the child’s educational interest or well-being.”

The proposed amendments are presently before the P-12 Education Committee for discussion in January 2012 after which there will be a period of public comment. They are scheduled to be submitted for action at the April Board of Regents meeting with a proposed effective date of May 16, 2012.

WDNY reaffirms 3 year statute of limitations on Attorney fee claims

P.M. v. EVANS-BRANT CEN. SCH. DIST. (W.D.N.Y. 1-9-2012): In what might be the first case post–2007 amendments to the IDEA to closely consider this issue, the Court determined that the statute of limitations for an attorney fee claim in a special education matter is 3 years.