AMENDMENT
OF THE REGULATIONS OF THE COMMISSIONER OF EDUCATION
Pursuant
to Education Law sections 101, 207, 301, 311, 4403, 4404 and
4410
Part
279 of the Regulations of the Commissioner of Education is amended, effective
August 21, 2008, as follows:
PART
279
PRACTICE
ON REVIEW OF HEARINGS FOR STUDENTS WITH DISABILITIES
§279.1
Scope of Part.
(a) . . .
(b) As used in this Part, State Review
Officer means an employee of the State Education Department designated by the
commissioner to conduct impartial State-level review pursuant to Education Law,
section [4402(2)] 4404(2) of the determination of an impartial hearing
officer in a hearing related to the identification, evaluation, program or
placement of a student with a disability.
(c) . . .
(d) . . .
§
279.2 Notice of intention to seek review.
(a)
The parent or person in parental relationship of a student with a disability who
intends to seek review by a State Review Officer of the State Education
Department of the decision of an impartial hearing officer shall personally
serve upon the school district, in the manner prescribed for the service of
a petition pursuant to section 275.8(a) of this Title, a notice of intention to
seek review in the following form:
Notice:
The
undersigned intends to seek review of the determination of the impartial hearing
officer concerning the identification, evaluation, program or placement of (name
of student with a disability). Upon
receipt of this notice, you are required to have prepared a written transcript
of the proceedings before the impartial hearing officer in this matter. A copy of any interim and the
final decision of the impartial hearing officer, a bound copy of the
written transcript, including a word index for the written transcript, as well
[ad] as an electronic transcript, and a true copy of the original
exhibits accepted into evidence at the hearing and an index to the exhibits must
be filed by the Board of Education, together with certification of the
completed record, with the Office of State Review of the New York State
Education Department within 10 days after service of this
notice.
(b)
The notice of intention to seek
review shall be personally served upon the school district not less than
10 days before service of a copy of the petition for review upon such school
district, and within 25 days from the date of the decision sought to be
reviewed. The petition for review
shall be personally served upon the school district within 35 days from
the date of the decision sought to be reviewed. If the decision has been served by mail
upon petitioner, the date of mailing and the four days subsequent thereto shall
be excluded in computing the 25- or 35-day period.
(c)
A notice of intention to seek
review shall not be required when the board of education initiates an appeal
from an impartial hearing officer's decision. A copy of the board's notice of
petition, petition, memorandum of law and any additional documentary evidence
shall be personally served upon the parent within 35 days from the date
of the impartial hearing officer's decision. If the decision has been served by mail
upon the board, the date of mailing and the four days subsequent thereto shall
be excluded in computing the 35-day period.
§279.3
Notice with petition.
Each
petition must contain the following notice:
Notice:
You
are hereby required to appear in this review and to answer the allegations
contained in this petition. Your answer must conform with the provisions of the
regulations of the Commissioner of Education relating to reviews of this nature,
copies of which are available from the Office of State Review of the New York
State Education Department, [1450 Western Avenue] 80 Wolf Road, Suite
203, Albany, NY [12203] 12205.
Please
take notice that such regulations require that an answer to the petition must be
served upon the petitioner, or if petitioner is represented by counsel, upon
such counsel, within 10 days after the service of the petition for review, and
that a copy of such answer must, within two days after such service, be filed
with the Office of State Review of the New York State Education Department,
[1450 Western Avenue] 80 Wolf Road, Suite 203, Albany, NY [12203]
12205.
The
decision of the State Review Officer shall be based solely on the record before
the State Review Officer and shall be final, unless an aggrieved party seeks
judicial review.
§279.4
Initiation of review.
(a)
Petition for review. The party
seeking review shall file with the Office of State Review of the State Education
Department the petition for review, [including any written argument, memorandum
of law, and additional documentary evidence,] and the notice of intention to
seek review where required, [together with proof of service of a copy of such
documents upon the other party to the hearing] together with proof of service
upon the other party to the hearing, within three days after service is
complete. No filing by
facsimile or electronic transmission shall be permitted. The petition for review shall clearly
indicate the reasons for challenging the impartial hearing officer's decision,
identifying the findings, conclusions and orders to which exceptions are taken,
and shall [briefly] indicate what relief should be granted by the State Review
Officer to the petitioner.
(b)
Cross-appeals. A respondent who
wishes to seek review of an impartial hearing officer's decision may
cross-appeal from all or a portion of the decision by setting forth the
cross-appeal in respondent's answer.
A cross-appeal shall be deemed to be timely if it is included in an
answer which is served within the time permitted by section 279.5 of this
Part. The petitioner shall answer
respondent's cross-appeal within 10 days after service of a copy of the answer
and cross-appeal upon petitioner, and shall file the answer to the cross-appeal,
together with proof of service, with the Office of State Review of the State
Education Department, within two days after service is complete. No filing by facsimile or
electronic transmission shall be permitted.
§
279.5 Service of answer.
The
respondent shall, within 10 days after the date of service of a copy of the
petition, answer the same, either by concurring in a statement of facts with
petitioner or by service of an answer, with any written argument, memorandum of
law, and additional documentary evidence.
Such answer or agreed statement of facts, together with proof of service
of a copy of such documents upon the petitioner, shall be filed with the Office
of State Review of the State Education Department, within two days after such
service. No filing by facsimile
or electronic transmission shall be permitted.
§279.6
Additional pleadings.
No
pleading other than the petition or answer will be accepted or considered by a
State Review Officer of the State Education Department, except a reply by the
petitioner to any procedural defenses interposed by respondent or to any
additional documentary evidence served with the answer. Such reply shall be served [and filed]
upon the opposing party within three days after service of the answer
is complete. Such reply, together
with proof of service, shall be filed with the Office of State Review within two
days after service of the reply is complete. No filing by facsimile or electronic
transmission shall be permitted.
§279.7 . . .
§279.8
Pleadings and memoranda of law.
(a) Form of pleadings and memoranda of
law. Documents that do not comply
with the requirements listed in this subdivision may be rejected in the sole
discretion of the State Review Officer.
All pleadings and memoranda of law shall be in the following
form:
(1) . . .
(2) typewritten in black ink, single
sided, and text double-spaced (block quotation and footnotes may be
single-spaced) [with typed material in]. All text, with the exception of page
numbering, shall appear on pages containing margins of at least one inch. Text shall appear as minimum
12-point type in the Times New Roman font (footnotes may appear as
minimum 10-point type in the Times New Roman font) [and not exceeding 6
1/2 by 9 1/2 inches on each page].
Compacted or other compressed printing features are
prohibited;
(3) . . .
(4) . . .
(5) the petition, answer, or memorandum of
law shall not exceed 20 pages in length; [the] a reply shall not exceed
10 pages in length. A party
shall not circumvent page limitations through incorporation by
reference. Extensive footnotes
may not be used to circumvent page limitations; and
(6) . . .
(b)
The petition, answer, reply and
memorandum of law shall each [reference] set forth citations to the
record on appeal, [identifying] and shall identify the relevant
page [number] number(s) in the hearing decision, [and] transcript,
[the ]exhibit number or letter and, if the exhibit consists of multiple pages,
the exhibit page number.
§279.9
Record of the proceeding before the impartial hearing
officer.
(a)
[It shall be the responsibility of the] The board of education
shall, whether it is the petitioner or the respondent, [to] file with the
Office of State Review of the State Education Department[,] a copy of the
decision of the impartial hearing officer, a bound copy of the written hearing
transcript before the impartial hearing officer [, including a] that includes
a word index for the written transcript, [as well as] an electronic copy
of the written transcript, copies of prehearing conference summaries or
transcripts, [and] a copy of the original exhibits accepted into
evidence at the hearing and an index to the exhibits[, together with the
petition or answer submitted on behalf of such board]. The board of education shall submit a
signed certification with the record, that the record submitted is a
true and [is the]complete copy of the hearing record before the
impartial hearing officer.
(b)
Where the petitioner is a party other than the board of education, the board
of education shall file the completed and certified record with the Office of
State Review within 10 days after service of the notice of the intention to seek
review.
(c) Where
the board of education is the petitioner, such board shall file the record
before the hearing officer together with the petition for review. [Where the board of education is the
respondent, such board shall file the record before the hearing officer within
10 days after the date of service of the notice of intention to seek
review.] A State Review Officer
may, at his or her discretion, dismiss [, at his or her discretion,] an
appeal by the board of education when a [complete] completed and
certified hearing record is not filed [within such timelines] with the
petition for review.
§279.10
Rules of practice.
(a) . . .
(b)
Additional evidence. The State Review Officer may seek
additional oral testimony or documentary evidence if the State Review Officer
determines that such additional evidence is necessary. Hearings for the purpose of taking
additional evidence will be conducted before the State Review Officer at a time
and place which is reasonably convenient to the parties, and procedures at such
hearings shall be consistent with the requirements of section [200.5(i)(3)]
200.5(j)(3) of this Title.
(c) Stay of proceedings. The provisions of section 276.1 of this
Title regarding stay of proceedings shall not apply to appeals brought pursuant
to section 4404 of the Education Law seeking review of a determination of an
impartial hearing officer. The
provisions of subdivision 4 of section 4404 of the Education Law and section
[200.5(l)] 200.5(m) (regarding a student's status during proceedings) of
this Title shall apply exclusively in such appeals. A determination of pendency pursuant to
subdivision 4 of section 4404 of the Education Law and section 200.5(m)
of this Title shall be made in writing, in the first instance, by the
impartial hearing officer and may be reviewed by a State Review
Officer.
(d) . . .
(e)
Extensions of time to answer or
reply. No extension of time to
answer the petition for review, interpose a cross-appeal, or to reply to
an answer will be granted by the State Review Officer unless timely application
is made therefor, upon written notice to all parties. Such application shall be in writing,
addressed to the Office of State Review, must be postmarked not later than the
date on which the time to answer or reply will expire, [and ]shall set forth in
full the reasons for the request, and shall briefly state whether the other
party consents to or opposes the application for extension. The time to [answer] respond to a
pleading may not be extended solely by stipulation of the parties or their
counsel.
§279.11
Computation of days within which service must be made.
The
date upon which personal service of the petition was made upon the respondent
shall be excluded in the computation of the 10-day period in which service of
the answer and cross-appeal must be made. If the answer has been served by mail
upon petitioner or petitioner's counsel, the date of mailing and the two days
subsequent thereto shall be excluded in the computation of the three-day period
in which a reply to procedural defenses or a response to additional
documentary evidence served with the answer may be served and filed by the
petitioner. If the last day for
service of a notice of intention to seek review, a petition for review, an
answer or a response to an answer falls on a Saturday or Sunday, service may be
made on the following Monday; and if the last day for such service falls on a
legal holiday, service may be made on the following business
day.
§279.12 . . .
§279.13
Limitation of time for initiation of appeal.
A
petition for review to [the] a State Review Officer must be [filed]
served and filed within the timelines specified in section 279.2 of this
Part. [The] A State Review
Officer may dismiss sua sponte a late petition for review. [The] A State Review Officer, in
his or her sole discretion, may excuse a failure to timely serve or file
a petition for review within the time specified for good cause shown. The reasons for such failure shall be
set forth in the petition for review.
§279.14 . .
.