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.
- 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.