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New York 

Monitoring and Support Visit Summary and Next Steps

September 28-30, 2016

Focus Area: Dispute Resolution DMS Designation: Targeted

Background 

In August 2014, the United States Government Accountability Office (GAO) issued a study entitled 

“Special Education-Improved Performance Measures Could Enhance Oversight of Dispute Resolution”

examining the use of dispute resolution methods, including mediation and resolution meetings, since the 

2004 reauthorization, in preparation for the next reauthorization of IDEA.

1 Based on its conclusions, 

GAO recommended that the Secretary of Education direct OSEP to revise its performance measure to 

collect information from States on the amount of time that extensions add to due process hearing 

decisions, in order to increase transparency regarding the timeliness of due process hearing decisions and 

better target its monitoring and technical assistance to States.

In response to this recommendation, OSEP has been conducting desk monitoring with States that reported 

10 or more fully adjudicated hearings in a given year, where at least 75 percent of the decisions were 

issued within extended timelines. This includes States where the decisions were reported as extended 

under 34 CFR §300.515(c), as well as those reported as resolved beyond the 45-day timeline but without 

allowable extensions. OSEP reviewed States’ section 618 data for the 2012-2013 and 2013-2014 

reporting periods. OSEP identified New York (NY) as a State that reported 10 or more fully adjudicated 

hearings with at least 75 percent of decisions issued within an extended timeline for those reporting 

periods, thus requiring desk monitoring and a Targeted DMS designation for Dispute Resolution. 

History

In a March 28, 2014 letter to the NY State Department of Education (NYSED), OSEP informed NYSED 

that it was not in compliance with section 615(g) of the IDEA and its implementing regulations (20 

U.S.C. §1415(g) and 34 CFR §§514(b) and 515(b)), which require States, such as New York, in which 

impartial due process hearings are conducted by a public agency other than the SEA, to conduct an 

impartial review of the initial hearing decision and issue an independent decision based on that review 

within thirty (30) days of the appeal, unless a specific extension of time is requested by a party and 

granted by the reviewing official. New York was instructed to come into compliance with these 

requirements by March 28, 2015, unless NYSED entered into a compliance agreement with the U.S. 

Department of Education (Department) pursuant to section 457 of the General Education Provisions Act 

(GEPA) (20 U.S.C. §1234f). As part of these discussions, NYSED developed a Work Plan (draft dated 

November 14, 2014) to address its failure to issue State-level review decisions in a timely manner.

In an April 27, 2015 letter to NYSED, OSEP informed NYSED that, based on a review of data and 

information demonstrating that NYSED had made substantial progress towards coming into full 

compliance, the Department determined that it would not be appropriate to enter into a compliance 

agreement with NYSED. In the absence of a compliance agreement, the State was required to come into 

full compliance as soon as possible with the IDEA Part B requirements at 20 U.S.C. §1415(g) and 34 

CFR §§300.514(b) and 300.515(b) to issue State-level review decisions for appeals of due process 

complaints within 30 days of receiving a request for review, and to submit data with its FFY 2015 IDEA 

Part B Application demonstrating progress toward full compliance. NYSED did submit data with its FFY 

2015 IDEA Part B Application demonstrating that the State had come into full compliance with the 

 

1 http://www.gao.gov/products/GAO-14-390
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applicable requirements, and was able to provide the assurance for Section II.A.6 in its FFY 2015 IDEA 

Part B application. The April 27, 2015 letter also required NYSED to provide the Department with 

quarterly reports covering a total reporting period of one year, from July 1, 2015 to June 30, 2016, to 

demonstrate continued compliance with these requirements. 

Special Note

To address the recommendation made by the GAO to conduct targeted monitoring related to extensions of 

due process hearing decisions, OSEP conducted a conference call with NYSED on March 31 and May 17, 

2016 to discuss the review process and to request hearing logs for due process hearing decisions at the 

first tier. The State submitted due process hearing logs and due process hearing decision files from the 

first tier to OSEP.

With regard to actions NYSED has taken to reduce the backlog of State-level review decisions to date: 

NYSED provided OSEP with quarterly reports that demonstrated continued compliance with the 

requirements in section 615(g) of the IDEA and its implementing regulations (20 U.S.C. §1415(g) and 34 

CFR §§300.514(b) and 515(b)) to issue State-level review decisions within 30 days of receiving a request 

for a review. As a result, OSEP discontinued NYSED’s quarterly reporting requirement for the FFY 

2016 grant year, after NYSED submitted its final report to OSEP, due July 15, 2016, covering data 

through June 30, 2016, consistent with the requirements set out in the April 27, 2015 letter. The reports 

contained the appeal number for each of the appeals pending review at the close of that quarter, the date 

the appeal was submitted to NYSED, whether an extension had been granted under 34 CFR §300.515(c), 

and the decision due date.

Purpose of Monitoring Activity

The purpose of this monitoring activity was twofold: First, in order to conduct the targeted monitoring

related to extensions of due process hearing decisions, it was important for OSEP to have an 

understanding of New York’s entire two-tier due process system. Second, OSEP discussed the State’s 

ongoing and completed activities to address the backlog of State-level review decisions, as described in 

the State’s Office of State Review (OSR)/OSEP Work Plan, submitted on October 17, 2014, to better 

understand the strategies the State has in place to support continued compliance with State-level review 

decision timelines.

Visit Summary

OSEP met with representatives of the State to discuss the functions of the NY two-tier dispute resolution 

system. The NY State Officials that responded to questions from OSEP included staff from the NY 

Office of Counsel, NYSED, State Review Office (SRO) and the NYC Department of Education. We 

discussed the following topics:

Policies and Procedures of the Two-Tier Dispute Resolution System

NY operates a two-tier dispute resolution system. In New York’s two-tier system, the public agency

directly responsible for the education of the child conducts due process hearings. The determination of 

which entity conducts due process hearings is based on State statute, State regulation, or a written policy 

of the Sate education agency (SEA). 34 CFR §300.511(b). In a two-tier system, an aggrieved party has 

the right to appeal the public agency’s decision to the SEA, which must conduct an impartial review of 

the findings and decision appealed. 34 CFR §300.514(b). A party dissatisfied with the decision of the 

State education agency’s reviewing official has the right to bring a civil action in any State court of 

competent jurisdiction or in a district court of the United States without regard to the amount in 

controversy. 34 CFR §§300.514(d) and 300.516(a). 

The State reported that New York City (NYC) operates differently than districts in other parts of the 

State. NYC has an Impartial Hearing Office that administers the first-tier of the due process system,

including appointing Impartial Hearing Officers (IHOs); arranging for rooms; and entering information 

into the data system. NYC’s data system automatically uploads data to the SEA system two times per 
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day. At the end of the day, the data system transmits redacted copies of dispute resolution documents. In 

NYC, IHOs are automatically appointed for cases, without a mechanism to check the availability of the 

IHO. If IHOs are unavailable, they recuse themselves from the case. However, the State does not have a 

timeline by which IHOs must recuse themselves. If IHOs do not recuse themselves until after the 

expiration of the 45-day timeline for issuing due process hearing decisions in 34 CFR §300.515(a), then 

there is no process in place to address noncompliance with this requirement unless someone files a 

complaint. If IHOs consistently decline or recuse themselves in a two year period, the State may 

investigate the reasons. However, in rural areas of the State, some IHOs that consistently decline or

recuse themselves are not contacted for more than two years. NYSED is considering establishing a policy 

where recusal must happen within a specific timeframe. 

NYSED is responsible for oversight of the IHOs at the first tier; however, the State does not have 

procedures in place to ensure that IHOs are meeting IDEA requirements under 34 CFR §§300.508 –

300.515. NYSED acknowledged that it does not have a formal system of evaluation of IHOs. NYSED 

recently entered into a new five year contract to expand training and develop an evaluation system for 

IHOs. The State has increased the amount of mandatory IHO training to include one in-person training 

session and three webinars per year.

Policies and Procedures for Extension of Due Process Hearing (First-tier) Decisions 

(Focus of GAO Audit) 

NYSED informed OSEP that there is no oversight from the State or Local Educational Agency (LEA)

regarding whether an extension granted in a first tier due process hearing is consistent with IDEA

requirements, unless a party files a complaint. When a procedural complaint is filed under State rules that 

an extension has not been granted in accordance with the requirement in 34 CFR §300.515(c), which 

permits a hearing officer to grant specific extensions of time beyond the 45-day required period at the 

request of either party, the SEA only investigates after the case is closed. While NYSED maintains a list 

of known reasons for extending due process hearings, it does not examine the reasons for hearing 

extensions to determine if such reasons are permissible. The majority of due process hearing decisions in 

the State are issued within an extended timeline. Some of the root causes for extensions, as identified by 

the State, include the volume of requests, scheduling difficulties, and nonconsecutive hearing dates. NYC 

has the greatest number of requests in the State for due process hearing decision timeline extensions.

Backlog of State-level Review (Second-tier) Decisions– Ongoing and Completed Activities

OSEP acknowledged NYSED’s work in addressing the backlog of State-level review decisions cited in 

OSEP’s March 28, 2014 letter to the State (see “History” section above). NYSED attributed their 

elimination of the backlog to the creation of a Backlog Elimination Team. The Team was staffed by 

contractors employed to address the issue of overdue State-level review decisions. 
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Findings of Noncompliance Corrective Action Required

1. Based on interviews with State and local personnel, OSEP determined 

that the State does not ensure that a procedural safeguards notice is 

provided to parents at all the times specified under 34 CFR

§300.504(a). Specifically, personnel from the New York City 

Department of Education stated that the procedural safeguards notice is 

not provided to the parent when the parent files the first due process 

complaint in a school year. 

Citation: Under 34 CFR §300.504(a), a copy of the procedural 

safeguards available to the parents of a child with a disability must be 

given to the parents only one time a school year, except that a copy also 

must be given to the parents –

(1) Upon initial referral or parent request for evaluation;

(2) Upon receipt of the first State complaint under §§300.151 through 

300.153 and upon receipt of the first due process complaint under 

§300.507 in a school year;

(3) In accordance with the discipline procedures in §300.530(h); and

(4) Upon request by a parent.

Within 90 days of the date of this letter, the State must provide documentation 

demonstrating that it has provided written guidance to all LEAs regarding the 

provision of the procedural safeguards notice consistent with 34 CFR 

§300.504(a).

2. Based on the State’s reported 618 data for the 2012-2015 reporting 

years, the State has reported above 75% of fully adjudicated hearings 

with extended timelines. Further, based on the review of documents, 

analysis of data, and interviews with State and local personnel, OSEP 

determined the State does not have procedures in place to ensure that 

independent hearing officers are granting extensions consistent with 34 

CFR §300.515(c).

Citation: Under 34 CFR §300.500, each SEA must ensure that each 

public agency establishes, maintains, and implements procedural 

safeguards that meet the requirements of §§300.500 through 300.536. 

Under 34 CFR §300.515(c), a hearing officer may grant specific 

Within 90 days of the date of this letter, the State must provide: 

(1) Documentation, including statewide procedures, demonstrating that the 

State ensures compliance with the requirement that hearing officers grant 

specific extensions of the 45-day timeline for issuing final decisions in due 

process hearings at the request of a party that specifies either the length of 

the extension or the new date by which the hearing officer must mail the 

decision to the parties; and 

(2) A copy of the memo to be issued to all hearing officers, LEAs, parent 

advocacy groups and other interested parties advising them of the Part B 

regulations at 34 CFR §300.515(c) that require that a hearing officer may 

only grant specific extensions of time beyond the 45-day timeline at the 
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extensions of time beyond the periods set out in 34 CFR §300.515(a) 

and (b) at the request of either party. In order to effectively monitor 

implementation of Part B of the IDEA, as required by IDEA sections 

612(a)(11) and 616, 34 CFR §§300.149 and 300.600, and 20 U.S.C. 

1232d(b)(3)(E), the State must ensure that it is in compliance with the 

requirement that hearing officers grant specific extensions of the 45-day 

timeline for issuing final decisions in due process hearings at the 

request of a party that specify either the length of the extension or the 

new date by which the hearing officer must mail the decision to the 

parties (34 CFR §300.515(a) and (c)).

request of either party.

3. Based on the review of documents, analysis of data, and interviews with 

State and local personnel, OSEP determined the State does not have 

procedures in place to ensure that independent hearing officers at the 

first tier are issuing due process hearing decisions within the 45-day 

timeline required by 34 CFR §300.515(a). In New York City, the 

independent hearing officers are automatically assigned cases without 

knowing the availability of hearing officers, and there is no imposed 

time limit for the hearing officer to recuse himself or herself for lack of 

availability. For example, if the hearing officer does not recuse himself 

or herself until after the 45-day timeline runs, the hearing officer would 

only be flagged if there was a complaint to the State regarding the 

IHO’s conduct. This results in due process hearing decisions not being 

issued within the 45-day timeline because a new hearing officer is not 

appointed until the hearing officer automatically assigned to the case 

recuses himself of herself.

In the rest of the State, it is incumbent upon the IHO to decline an offer 

of appointment if their schedule does not allow for the hearing to be 

convened within 14 calendar days of being contacted by the school 

district. Prior to offering an appointment, the school district must 

request the IHO to assure that his or her schedule is such that the 

hearing can be initiated within the 14 days and concluded within 45 

Within 90 days of the date of this letter, the State must provide: 

(1) Documentation, including statewide procedures, demonstrating that the 

State ensures compliance with the requirement that hearing officers issue 

final decisions within the 45-day timeline or within specific extensions of 

time beyond the periods set out in 34 CFR §300.515(a) at the request of 

either party; and

(2) A copy of the memo to be issued to all hearing officers, LEAs, parent 

advocacy groups and other interested parties advising them of the Part B 

regulations at 34 CFR §300.515 and State rules related to due process 

hearing timelines. 
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calendar days (30 calendar days for preschool hearings and 15 business 

days for expedited hearings) unless extensions are granted at the request 

of either party. However, the State does not have a process to ensure 

that IHOs are following this procedure unless a party files a complaint

under State rules against the hearing officer. Furthermore, the State 

does not investigate until the due process case is closed. Therefore, the 

State is not exercising its general supervisory responsibility to ensure 

that hearing officers adhere to the 45-day timeline for issuing final 

decisions in due process hearings.

Citation: Under 34 CFR §300.500, each SEA must ensure that each 

public agency establishes, maintains, and implements procedural 

safeguards that meet the requirements of §§300.500 through 300.536. In 

order to effectively monitor implementation of Part B of the IDEA, as 

required by IDEA sections 612(a)(11) and 616, 34 CFR §§300.149 and 

300.600, and 20 U.S.C. 1232d(b)(3)(E), the State must ensure 

compliance with the requirement that hearing officers meet the 45-day 

timeline for issuing final due process hearing decisions under 34 CFR 

§300.515(a) or a properly granted extension under 34 CFR §300.515(c).