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A07943 Memo:

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.
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