Board of Regents Considering Non-Attorneys as Hearing Officers in Special Ed Due Process Hearings

The New York State Board of Regents is considering changing the requirement that an impartial hearing officer (“IHO”) in special education disputes (i.e., “due process hearings”) be an attorney admitted to practice in New York due to a severe backlog of cases in New York City. The Board of Regents is also considering increasing the hourly rate paid to IHOs, in an effort to increase the number of IHOs available to hear due process proceedings in New York City. It is unclear from the discussions at this time if the Board of Regents would lessen the requirements and allow all IHOs throughout the State to be non-attorneys, or if the change would apply only to IHOs hearing cases in New York City. Likewise, it is unclear if a rate change would be effective outside of New York City; currently, the going rate for an IHO is $100 per hour.

Due process hearings are held generally when parents/guardians dispute the identification, evaluation, educational placement of a student with a disability, or challenge whether or not a student with a disability received or is receiving a “free appropriate public education”. A due process hearing is provided for under the federal Individuals with Disabilities Education Act (IDEA) and New York State Education Law. In New York, a school district bears the expense of the hearing itself, including paying the hearing officer. Although not required under the IDEA, New York requires that an IHO “be an individual admitted to the practice of law in the State of New York who is in good standing and has a minimum of two years practice and/or experience in the areas of education, special education, disability rights or civil rights”, among other things. (8 NYCRR 200.1(x)(1).)

This was not always the case. Prior to 2001, non-attorneys were permitted to serve as IHOs and once the law changed in 2001, those non-attorneys already working as IHOs were “grandfathered in” and continued to work as IHOs. New York added further requirements mandating that IHOs be attorneys, “to increase the timeliness and quality of impartial hearings and the decisions and, additionally, to improve the ‘integrity of the impartial hearing process’.” (Memo from NYSED to the P-12 Education Committee, dated January 7, 2020.)

The IHO in a due process hearing acts as the judge. In that capacity, the IHO is involved in pre-hearing rulings, conducts pre-hearing conferences and presides over the hearing itself, including admission of documentary evidence, testimony and ruling on objections. Although an impartial hearing is an administrative proceeding and the rules of evidence are not strictly enforced, rulings regarding a student’s pendency placement, the statute of limitations, evidence and testimony are made throughout the course of the hearing itself and are reviewable on appeal. At the close of the due process hearing, the IHO will render a written decision setting forth the reasons and the factual basis for the decision and referencing the hearing record to support findings of fact. (8 NYCRR 200.5(5)(v).) After the IHO has rendered a written decision, either party has the opportunity to appeal parts or all of the decision to the Office of State Review.

In addition to the potential problems associated with permitting non-attorneys to serve as IHOs, raising fees to be paid by schools would place an additional financial burden on districts defending due process claims.

The Board of Regents is slated to discuss these matters further at their meeting in March 2020.

We will keep you updated about any developments in this regard. In the meantime, if you have questions, please do not hesitate to contact us at one of the numbers listed below.