NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A7943
SPONSOR: Weinstein TITLE OF BILL:
An act to amend the education law, in relation to impartial hearings in
school districts in cities with a population of one million or more
SUMMARY OF PROVISIONS OF BILL:
Bill sections 1 and 2 amend Education Law § 4404(1)(c) to authorize the
New York City Office of Administrative Trials and Hearings (OATH) to
appoint independent adjudicators (who would be primarily be employees of
OATH, and may also include independent contractors) to conduct impartial
hearings concerning placements of students with disabilities. OATH would
train and certify the independent adjudicators. These sections also
codify current State regulations that authorize impartial hearing offi-
cers to conduct hearings remotely.
Bill section 3 adds a new section 1049-c to Chapter 45 of the New York
City Charter, creating a new Special Education Hearings Division within
OATH responsible for functions conducted by impartial hearing officers
pursuant to Education Law § S 4404 and 4410. Under § 1049-c(b), OATH's
chief administrative law judge would direct the division; and would
appoint, train, certify, evaluate, discipline and remove independent
adjudicators, and determine their compensation. The chief administra-
tive law judge would assign cases to the independent adjudicators on a
rotational basis; set deadlines and other requirements for the disposi-
tion of cases as needed to comply with applicable mandates; and have
authority to issue regulations to supplement regulations of the State
Commissioner of Education.
Section 1049-c(c) requires the independent adjudicators to conduct hear-
ings in a manner consistent with regulations issued by the State Educa-
tion Commissioner and any additional regulations issued by the chief
administrative law judge,and authorizes hearings to be conducted remote-
ly.
Bill section 4 provides that existing rights and remedies will not be
affected by reason of the adoption of this act. Bill section 5 provides
that actions and proceedings pending at the effective date of this act
will not be affected or abated by its adoption. Bill section 6 author-
izes the State Commissioner of Education, OATH's chief administrative
judge, and the New York City School District's Chancellor to promulgate
rules necessary to effectuate the act consistent with applicable federal
law.
Bill section 7 establishes an immediate effective date with a transition
period that starts on the effective date and ends on the later of Janu-
ary 1, 2022 or 30 days after the date when OATH's chief administrative
law judge certifies to the State Education Commissioner that OATH has
taken all steps necessary to assume the responsibilities conferred on it
by this act. Impartial hearing officers already assigned to cases prior
to the effective date would continue to handle those cases. During the
transition period, the City School District may refer cases to impartial
hearing officers in accordance with provisions of the Education Law in
effect prior to the transition period, or to OATH, in accordance with a
random assignment system agreed upon between the City School District
and OATH. After the conclusion of the transition period, impartial hear-
ing officers would not be assigned new cases arising from City School
District except by OATH. Bill section 7(3) provides for the amendments
to Education Law § 4404 to be subject to the sunset of provisions of
that section pursuant to Chapter 352 of the Laws of 2005.
JUSTIFICATION:
The City School District for the City of New York (the "City School
District") annually provides public education to over 1.1 million
students who reside in New York City, and fully supports this bill.
Under both the Individuals with Disabilities Education Act, and Article
89 of the Education Law, the New York City Department of Education (DOE)
is required to evaluate and offer each student who resides in the City
School District and is a student with a disability (as defined under
federal and state law) a free appropriate public education ("FAPE"). The
offer of FAPE is set forth in a written document known as an individual-
ized education program ("IEP"), which is updated annually. Under the
IDEA and Article 89, a parent of a student with a disability may chal-
lenge the identification, evaluation, or educational placement of the
student, or the provision of a FAPE to the student, by filing a due
process complaint ("DPC"), which commences an impartial due process
hearing. The City School District may also bring a challenge on some of
these grounds. See 20 U.S.C. §§ 1415(b)(6), (c), (f)- (i). The statuto-
ry schedule for the due process proceeding begins with a 30-day resol-
ution period, during which the parties to the DPC are to try to amicably
resolve their dispute. If resolution is unsuccessful (and/or the parties
do not agree to mediation), there is a 45-day period (excluding lawfully
granted extensions) for the trial of the due process complaint.
The New York City Impartial Hearing Office is currently charged with the
administration of the impartial due process hearing system for the City
District. However, the recruitment, training, certification, appointment
and discipline of impartial hearing officers ("IHOs") is committed to
the State Education Commissioner ("SED"). In addition, state regulations
govern the practice before the IHOs.
Currently, there are thousands of due process complaints that have been
filed with the New York City Impartial Hearing Office for which an IHO
has not been assigned. This is the result of several factors. First, to
maintain certification, an impartial hearing officer need only accept
one case every two years. Second, between roughly July and October every
school year, thousands of DPCs are filed with the New York City Impar-
tial Hearing Office (from July - October 2020 there were around 6500).
Thus, not only is the current number of DPC filings extremely large, but
also each year's DPC filings adds to the backlog. Third, the current
roster of IHOs assigned to the New York City Impartial Hearing Office is
insufficient to handle the caseload. There is no requirement that an
IHO carry a minimum case load; indeed more than half of IHOs carry
twelve or fewer cases. Thus, the current system is not working, with the
result that all parties are being deprived of timely due process.
The proposed legislation would replace the current system for the City
School District with a full-time administrative adjudicatory system,
with the goal of efficaciously eliminating the backlog and providing
timely hearings going forward. The New York City Office of Administra-
tive Trials and Hearings ("OATH"), a component of New York City govern-
ment, not DOE, would be responsible for the new system.
OATH would be responsible for the recruitment, training, certification
and appointment of a cadre of full-time hearing officers to hear both
pending and newly filed DPCs. The officers would be required to have
practiced law for at least 5 years, as compared to the one year current-
ly required under State regulations, but as in State regulations they
would be required to have at least one year of practice or experience in
fields of particular relevance to the DPCs. OATH would also be responsi-
ble for implementing procedural rules concerning extensions of time,
conduct of hearings, etc. as well as the discipline of IHOs. Because
OATH is not part of DOE, there is no appearance of impropriety. More-
over, because OATH plans to staff its impartial hearing division with
full-time administrative hearing adjudicators, it will have the staff
and a dministrative structure to make it possible to have impartial
hearings fairly and timely adjudicated, including trials on consecutive
days, and to generate well-reasoned decisions based on the facts appli-
cable to the student's current special education placement.
LEGISLATIVE HISTORY:
New bill.
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:
None to the State of New York. Undetermined to the City of New York.
EFFECTIVE DATE:
Immediately, provided that:
1. Impartial hearing officers assigned prior to the conclusion of the
transition period described in subdivision two of this section to review
a due process complaint or preside over a due process hearing pursuant
to sections 4404 and 4410 of the education law shall continue to have
jurisdiction with respect to such cases. After the conclusion of the
transition period, impartial hearing officers shall not be assigned new
cases arising from the city school district of the city of New York
except by the office of administrative trials and hearings of the city
of New York.
2. A transition period shall commence upon the effective date of this
act. During such transition period, the city school district of the city
of New York may refer cases to impartial hearing officers in accordance
with provisions of the education law in effect prior to the transition
period, or to the office of administrative trials and hearings of the
city of New York. Such referrals shall be made in accordance with a
random assignment system agreed upon between the city school district
and such office. Such transition period shall end on the later of Janu-
ary 1, 2022 or 30 days after the date when the chief administrative law
judge of the New York city office of administrative trials and hearings
certifies to the state education commissioner that such office has taken
all steps necessary to assume the responsibilities conferred on such
office by this act.
3. The amendments to paragraph c of subdivision 1 of section 4404 of the
education law made by section one of this act shall be subject to the
expiration and reversion of such subdivision pursuant to section 22 of
chapter 352 of the laws of 2005, as amended, when upon such date the
provisions of section two of this act shall take effect.
