This bill has been amended

Bill S6567-2013

Requires the office of state review to render decisions on certain appeals pertaining to children with handicapping conditions within thirty days of receipt of such appeals

Requires the office of state review to render decisions on certain appeals pertaining to children with handicapping conditions within thirty days of receipt of such appeals and authorizes parties to file appeals in federal court at the expiration of the thirty days.

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  • Feb 6, 2014: REFERRED TO EDUCATION

Memo

BILL NUMBER:S6567

TITLE OF BILL: An act to amend the education law, in relation to requiring the office of state review to render decisions on certain appeals pertaining to children with handicapping conditions within thirty days of receipt of such appeals

PURPOSE:

This legislation will insure that not later than 30 days after receipt of a request for review, a final decision is reached and a copy of the decision rendered is mailed to all appropriate parties.

SUMMARY OF PROVISIONS:

Section 1. Paragraph (d) of subdivision 7 of section 4410 of the education law, as amended by section 57 of part H of chapter 83 of the laws of 2002, is amended to read as follows;

(ii) Appeals taken to the office of state review shall be decided in the order in which they were received. In the event the state review officer does not render a decision within the allotted 30 days, the decision of the impartial hearing officer shall be substituted with a decision for administrative purposes without prejudice to any further appeal that may be taken by aggrieved party to the federal court pursuant to 34 C.F.R. § 300.516.

§ 2 Subdivision 2 of section 4404 of the education law, as amended by chapter 53 of the laws of 1990, is amended as follows:

b. Appeals taken to the office of state review shall be decided in the order in which they were received. In the event the state review officer does not render a decision within the allotted 30 days, the decision of the impartial hearing officer shall be substituted with a decision for administrative purposes without prejudice to any further appeal that may be taken by aggrieved party to the federal court pursuant to 34 C.F.R. § 300.516

EXISTING LAW:

Existing law does require submittal of decision by the reviewing officer within 30 days but does not allow for those hearing officers that fail to submit a decision for administrative purposes without prejudice to any further appeal that may be taken by aggrieved party to the federal court pursuant to 34 C.F.R. § 300.516

JUSTIFICATION:

In 41 states, once the Impartial Hearing Officer rules, any appeal from that decision goes directly to federal court. However, New York and in 8 other states any appeal from the I.H.O.'s decision first goes to an intermediate administrative appeal tribunal, which in New York is the "Office of State Review", located in Albany, New York. There are two State Review Officers (S.R.O.'s). They are charged with deciding such appeals, and under federal and state law, such appeals are required to be decided on a 30 day basis unless all parties

consent to extend the 30 day time line. 34 C.F.R. § 300.515(b); N.Y. Educ. Law 4410(7)(d); 8 N.Y.C.R.R. § 200.5(k)(2).

The relevant federal regulation states that the state educational agency ( here, the New York State Education Department ) "must ensure that not later than 30 days after the receipt of a request for review - (1) A final decision is reached in the review; and (2) A copy of the decision is mailed to each of the parties". 34 C.F.R. § 300.515(b). The parties may however request extensions of this 30 day period 34 C.F.R. § 300.515(c).

The office of State Review (OSR) has admitted to N.Y.S.E.D., practically all the appeals being filed with the O.S.R.'s are not being decided within 30 days. Over the last two years, O.R.S has accumulated a backlog of approximately 200 appeal cases that are now materially late for their decisions. Depending on which cases the S.R.O. selects to decide, some but not all, of these appeals have been languishing without a decision for more than a year. This untenable situation is keeping parents and school districts alike in a state of limbo and it is the cause of a class action and other lawsuits being filed in the federal court.

This legislation will help to expedite these appeals in a fair and reasonable manner by moving those cases not heard by the impartial hearing officer and substituting his/her decision with a decision, for administrative purposes, without prejudice to any further appeal that may be taken by aggrieved party to the federal court.

LEGISLATIVE HISTORY:

None

FISCAL IMPLICATIONS:

To be determined.

LOCAL FISCAL IMPLICATIONS:

None.

EFFECTIVE DATE:

This legislation will take effect immediately.


Text

STATE OF NEW YORK ________________________________________________________________________ 6567 IN SENATE February 6, 2014 ___________
Introduced by Sen. LATIMER -- read twice and ordered printed, and when printed to be committed to the Committee on Education AN ACT to amend the education law, in relation to requiring the office of state review to render decisions on certain appeals pertaining to children with handicapping conditions within thirty days of receipt of such appeals THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Paragraph (d) of subdivision 7 of section 4410 of the education law, as amended by section 57 of part H of chapter 83 of the laws of 2002, is amended to read as follows: d. (I) A state review officer of the education department shall review the decision of the impartial hearing officer in the manner prescribed in subdivision two of section forty-four hundred four of this article and render a decision no later than thirty days after the decision of such hearing officer. (II) APPEALS TAKEN TO THE OFFICE OF STATE REVIEW SHALL BE DECIDED IN THE ORDER IN WHICH THEY ARE RECEIVED. IN THE EVENT THAT THE STATE REVIEW OFFICER DOES NOT, WITHIN THIRTY DAYS, RENDER A FINAL DECISION AND FORWARD SUCH DECISION TO THE PARTIES, THEN THE DECISION OF THE IMPARTIAL HEARING OFFICER SHALL BE SUBSTITUTED FOR THE DECISION THAT SHOULD HAVE BEEN TIMELY RENDERED BY THE STATE REVIEW OFFICER AND DEEMED TO BE FINAL FOR ADMINISTRATIVE PURPOSES, WITHOUT PREJUDICE TO ANY FURTHER APPEAL THAT MAY BE TAKEN BY ANY AGGRIEVED PARTY TO THE FEDERAL COURT PURSUANT TO 34 C.F.R. S 300.516. S 2. Subdivision 2 of section 4404 of the education law, as amended by chapter 53 of the laws of 1990, is amended to read as follows: 2. Review by state review officer. A. A state review officer of the education department shall review and may modify, in such cases and to the extent that the review officer deems necessary, in order to properly effectuate the purposes of this article, any determination of the impar- tial hearing officer relating to the determination of the nature of a child's handicapping condition, selection of an appropriate special education program or service and the failure to provide such program and
require such board to comply with the provisions of such modification. The commissioner shall adopt regulations governing the practice and procedure in such appeals to the state review officer; provided, howev- er, that in no event shall any fee or charge whatsoever be imposed for any appeal taken pursuant to this subdivision. The state review officer is empowered to make all orders which are proper or necessary to give effect to the decision of the review officer. B. APPEALS TAKEN TO THE OFFICE OF STATE REVIEW SHALL BE DECIDED IN THE ORDER IN WHICH THEY ARE RECEIVED. IN THE EVENT THAT THE STATE REVIEW OFFICER DOES NOT, WITHIN THIRTY DAYS, RENDER A FINAL DECISION AND FORWARD SUCH DECISION TO THE PARTIES, THEN THE DECISION OF THE IMPARTIAL HEARING OFFICER SHALL BE SUBSTITUTED FOR THE DECISION THAT SHOULD HAVE BEEN TIMELY RENDERED BY THE STATE REVIEW OFFICER AND DEEMED TO BE FINAL FOR ADMINISTRATIVE PURPOSES, WITHOUT PREJUDICE TO ANY FURTHER APPEAL THAT MAY BE TAKEN BY ANY AGGRIEVED PARTY TO THE FEDERAL COURT PURSUANT TO 34 C.F.R. S 300.516. S 3. This act shall take effect immediately.

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