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

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 within 30 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 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, within 30 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 aggrieved party to the federal court pursuant to 34 C.F.R. § 300.516

§ 3. This act shall take effect immediately and shall apply equally to cases that have been pending before the Office of State Review for more than 30 days following the receipt of a request for a review without issuance of a decision as of the date this act shall have become a law and to cases in which the 30-day period elapses without issuance of a decision on or after the date this act shall have become law.

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.