Impartial Hearing Officer | Policy 7670

The School District is committed to making every effort to amicably resolve differences involving the educational programs for students with disabilities. When outside assistance is needed to aid in resolving a disagreement about the identification, evaluation, educational placement or provision of a free appropriate education for a student with a disability, mediation is encouraged. For those exceptional circumstances where a more formal method is required, the impartial hearing process will be utilized. The impartial hearing officer (IHO) renders a written decision after the parties present and refute evidence before him/her. The decision of the IHO is final and binding on both parties unless appealed to the State Review Officer (SRO).

Impartial Hearing Process

The following is an overview of the Impartial Hearing process:

a) Either the parent or the School District may request an impartial hearing. If a parent makes the request it must be in writing to the Board of Education describing the nature of the dispute and a proposed resolution of the problem. The District will provide a form for this purpose. However, the District may not deny or delay a parent’s right to an impartial hearing if the written request is not complete.

If the District is the party initiating an impartial hearing, the District will provide prior written notice to the parent including a statement of the action proposed and any explanation of why the District proposes to take such action.

b) Upon receipt of or initiation of a request for an impartial hearing, the District will inform the parent of the availability of mediation, of any free or low-cost legal and other relevant services available in the area, and provide them with a copy of the District’s Procedural Safeguards Notice.

c) The District must immediately [but not later than two (2) business days after receipt of the written request] initiate the process to select an IHO. The District selects the IHO through a rotational selection process in accordance with regulatory timelines. The Superintendent’s Secretary/District Clerk will be responsible for contacting IHOs and maintaining appropriate records.

d) The IHO must be certified by the Commissioner of Education, be independent and have access to the support and equipment necessary to perform the duties of an IHO. When the selected IHO indicates availability, the Board of Education must immediately appoint him/her. To expedite this process the Board may designate one or more of its members to appoint the IHO on behalf of the Board.

e) The impartial hearing will be conducted at a location that is reasonable and convenient to the parent and the student involved. The hearing shall be closed to the public unless the parent requests an open hearing.

f) The IHO presides over the hearing at which the parties have an opportunity to present evidence and testimony.

g) The student remains in his/her current placement during the pendency of the impartial hearing unless both parties agree and except as otherwise provided for expedited impartial hearings for certain disciplinary suspensions or removals of a student.

h) 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.

i) The decision of the IHO is final and binding on both parties unless appealed to the State Review Officer (SRO).

Recordkeeping and Reporting

The District will maintain an alphabetical list of the names of each IHO who is certified in New York State and available to serve in the District. The District will record and report to the State Education Department required information relating to the selection of IHOs and the conduct of impartial hearings according to the manner and schedule specified by the department.

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. On an annual basis, the District will forward a copy of its compensation rates to each IHO on the District’s rotational list.

Mediation

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

Guardians ad Litem at Impartial Hearings

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 inconsistent with those of the student or whenever the interests of the student would be best protected by such appointment.

Confidentiality

All issues relating to a request for and conduct of an Impartial Hearing must be kept confidential by all District staff.

Administrative Procedures

Administrative procedures will be developed for the selection and appointment of an IHO consistent with regulatory requirements.

Education Law Sections 4404(1) and 4410(7) 8 New York Code of Rules and Regulations
(NYCRR) Sections 200.1, 200.2, 200.5, 200.16, 200.21 and 201.11

Adopted 09/27/00
Revised 11/26/01
Revised 04/29/02

Rotational Selection List of Impartial Hearing Officers

The Board of Education shall maintain an alphabetical list of the name of each IHO who is certified by the Commissioner of Education and available to serve in the District. This list shall also include a statement of the qualifications of each IHO; specifically that each IHO on the District’s rotational list is currently certified by SED. Any newly certified IHO available to serve in the District shall be inserted into the list in alphabetical order.

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.

Impartial Hearing Process

Initiation

Either the parent or the School District may request an impartial hearing.

If the parent makes the request it must be made in writing to the Board of Education describing the nature of the dispute and a proposed resolution of the problem. The District will provide a form for this purpose (Form #7670F Request for Due Process Proceedings).

The District may not deny or delay a parent’s right to an impartial hearing if the written request is not complete. However, if the parent or attorney does not provide such information, a court may reduce any award of attorney’s fees.

Any District representative who receives a written request from a parent for an impartial hearing will immediately forward it to the Superintendent’s Secretary/District Clerk who will record receipt and begin the process for selection of an IHO. A written request is considered “received” and will be date stamped and logged on the first business day it is delivered to the district.

If the District is the party initiating an impartial hearing, the District will provide a prior written notice to the parent including a statement of the action proposed and any explanation of why the District proposes to take such action.
Upon receipt of or initiation of a request for an impartial hearing, the Superintendent’s Secretary/District Clerk will immediately inform the parent of the availability of mediation, of any free or low-cost legal and other relevant services available in the area, and provide them with a copy of the District’s Procedural Safeguards Notice.

Selection of IHO

The Superintendent’s Secretary/District Clerk must immediately [but not later than two (2) business days after receipt of the written request] initiate the process to select an IHO. The District selects the IHO through a rotational selection process in accordance with regulatory timelines.

The IHO may only accept appointment if he/she is available to initiate the hearing within the first fourteen (14) calendar days of being contacted by the School District.

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 convene the hearing within fourteen (14) days of being contacted by the District and able to conclude the hearing within forty-five calendar days of the initiation of the request [thirty (30) calendar days for preschool hearings or fifteen (15) business days for expedited hearings]. 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.

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

Appointment of IHO

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 a copy of its policy regarding compensation rates for IHOs and reimbursement of hearing related expenses including travel; a copy of the date-stamped written request for the hearing or copy of the written notice to the parent that the district is initiating the request; the name, address and telephone number of the individual representing the School District at the impartial hearing; the name, address and telephone number of the individual representing the parent of the student, if available; and any other information that will facilitate contact between representatives of the parties.

Impartial Hearing Locations

Impartial hearings will be conducted at a location reasonably convenient to the parent and the student involved. Preferred locations are the school the student attends or the District Office.

Proceeding

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.

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

The IHO presides over the hearing at which the parties have an opportunity to present evidence and testimony. The IHO is authorized to administer oaths and issue subpoenas relating to the proceedings.

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

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

At least five (5) business days before the hearing [three (3) business days for an expedited 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.

The student remains in his/her current placement during the pendency of the impartial hearing unless both parties agree and except as otherwise provided for expedited impartial hearings for certain disciplinary suspensions or removals of a student.

Guardians ad Litem at Impartial Hearings

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 inconsistent with those of the student or whenever the interests of the student would be best protected by such appointment.

Extensions

An IHO may grant specific extensions of time at the request of either the School District or the parent.

Decision and Appeal

The IHO renders and mails the finding of fact and decision to the parties and to VESID not later than forty-five (45) calendar days [thirty (30) calendar days in the case of preschool students] after the date of receipt of the request from the parent by the Board of Education or the initiation of the hearing by the Board. The parents may opt to receive this information in electronic form. The record and findings will be provided at no cost to the parents.

The IHO may grant specific extensions of time at the request of either the District or the parents. In this case the decision must be rendered and provided to the parties no later than fourteen (14) calendar days from the date the record is closed and the transcript is received by the IHO.

The decision of the IHO shall be based solely upon the record of the proceeding before him/her. The decision shall set forth the reasons and factual basis of the determination and include a statement advising the parties of the right of any party involved in the hearing to obtain a review by the State Review Officer (SRO).

The decision of the IHO is final and binding upon both parties unless appealed to the SRO.

Confidentiality

All issues relating to a request for and conduct of an Impartial 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 current maximum rate is $100 per hour with no maximum per diem. 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 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

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

Expedited Due Process Hearings

Expedited due process hearings shall be conducted at the request:

By 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

By 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 including but not limited to a decision to place the student in an IAES.

An expedited due process hearing must be completed within fifteen (15) business days of receipt of request for the hearing, unless specific extensions are granted. If an extension has been granted, the IHO renders and mails the finding of fact and decision to the parties and to VESID within five (5) business days after the last hearing date, but not later than forty-five (45) calendar days after the date of receipt of the request from the parent by the board of education or the initiation of the hearing by the board. The parents may opt to receive this information in electronic form.

Recordkeeping and Reporting

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

District Rotational List

The District will assure that its established IHO list remains current by reflecting name additions and deletions which may occur during the year. The District will use as its base the most recently updated rotational selection list of certified IHOs issued by SED. All IHOs on this list designated to serve in the county in which the District is situated will be included on the District’s list unless the IHO notifies the District in writing that he/she is unavailable or unwilling to remain on the District’s rotational list. In addition, the District must insert into the list in alphabetical order the name of any certified IHO who contacts the District directly to indicate his/her availability to serve.

The District IHO list will indicate the date of appointment of each IHO to a District hearing.

Initiation of Request for Hearing

The Superintendent’s Secretary/District Clerk will date stamp and record on Form #7670F.l the receipt of the written request for an impartial hearing. The Superintendent’s Secretary/ District Clerk will also record on Form #7670F.1 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 Form #7670F.1 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.

Conduct and Result of Hearing

Additional information to be recorded on Form #7670F.1 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.

Timelines

See attached.