Comptroller Will Require DOE To Secure Authority Before Starting Settlement Negotiations

The NYC Comptroller's Office will now require the Department of Education (DOE) to obtain comptroller approval for the terms of a settlement before starting settlement negotiations with parents' counsel.  

Previously, the DOE's practice was to negotiate, reach an agreement, and then seek approval from the comptroller for the agreed-upon terms.  This was problematic, however, for a number of reasons and caused significant delays in the legal process.  Some of these reasons are detailed in an April 29, 2020 letter from the Comptroller's office to the DOE Chancellor, accessible here.

As noted in the letter, city agencies, and even the DOE itself in certain types of negotiations, are already following this practice of securing comptroller approval in advance.  

We welcome this change and are optimistic, based on past experience, that this will result in efficiencies in the process of negotiating, settling, and paying parents' claims.  

Public Hearings On Proposed Amendments To Commissioner’s Regulations

Today I participated in the first of two public hearings on the proposed amendments to Sections 200.1 and 200.5 of the Commissioner’s regulations relating to special education Impartial Hearing Officers (IHOs) and the special education due process system procedures.  

The purpose of these hearings is to obtain public comment on the proposed regulations relating to special education due process and impartial hearing officer qualifications in the New York City special education due process system that were discussed at the January 2020 and March 2020 Board of Regents meetings. 

In particular, the New York State Education Department (NYSED) is proposing to modify the regulations in the following key ways: 

• Amending 200.1(x) to remove the restriction that all IHO candidates be licensed in New York State; 
• Further amending 200.1(x) to reduce the number of years of experience and/or practice for attorney candidates from two years to one year; 
• Further amending 200.1(x) to allow for the certification of non-attorney IHOs to hear complaints filed in New York City only; 
• Amending 200.5(e) to require IHOs to maintain student confidentiality; 
• Amending 200.5(j) to require IHOs to render decisions in a consistent format; and
• Amending 200.5(j)(3)(xii) to allow IHOs to conduct hearings by video conference. 

Here are some of the points that were raised during today's hearing: 

• Allowing for the certification of non-attorney IHOs would raise serious concerns because: 
• Adjudicating special education due process matters requires analyzing testimony and evidence, following the rules of civil procedure and motion practice, and ruling on objections, which a non-attorney would not be sufficiently equipped to do; 
• An IHO must be familiar with and understand how to apply legal precedent, including case law governing the procedures pertaining to litigation in this field (e.g., Jose P. and L.V.); 
• IDEA cases involve complicated and nuanced matters that require careful analysis; 
• Pro se parents who are not being represented by an attorney themselves have a right to the good judgment of adjudicators who have legal backgrounds; 
• Allowing non-attorney IHOs could result in a greater number of appeals, which would be costly for school districts. 

• Allowing hearings to be conducted by videoconference would be beneficial in many ways: 
• Greater efficiencies in the impartial hearing process, as has been observed with the emergency measures implemented during COVID-19; 
• Reduction in the current backlog by streamlining cases; 
• Convenience for parents and those needing to balance childcare or work responsibilities; 
• Safety considerations as people would not have to attend hearings in person at the impartial hearing office, which may not yet have proper protocols to address COVID-19.   

Another pubic hearing is scheduled for June 11 at 10:00 a.m.  The June 11 meeting can be accessed by Webex with the Meeting number (access code): 804 135 862 Meeting password: 29AYbBVwkA2 or by phone at 1-844-633-8697 (US Toll Free) or 1-518-549-0500 (Local) with the access code 804 135 862.

Data, views, or arguments may be submitted until June 16, 2020 to: Christopher Suriano, Office of Special Education, NYS Education Department, 89 Washington Avenue, 301M EB, Albany, NY 12234, (518) 473-4818, email: REGCOMMENTS@nysed.gov.