ASSESSMENT OF PUBLIC COMMENT

Since publication of the Notice of Proposed Rule Making in the State Register on September 24, 2025, the State Education Department received the following comments on the proposed amendment:

IHO Certification in New York City

1. COMMENT: One commenter states that the proposed rule creates a significant and unnecessary limitation on IHOs who want to continue serving outside of New York City (NYC), where hearings are conducted by the Office of Administrative Trials and Hearings (OATH). The commenter also indicates that the rule is unclear whether IHOs that had been certified previous to their employment with OATH would lose their certification upon ending their employment. The commenter opined that this would restrict mobility and unnecessarily reduce the pool of qualified IHOs to districts outside of NYC. The commenter also claims that the proposed rule disincentivizes highly experienced IHOs from considering OATH service since acceptance may result in them forfeiting their independent statewide certification status. The commenter recommends that IHOs should be able to retain their certification once OATH employment ends. Finally, the commenter requests that the proposed rule preserve flexibility to allow both NYC and the State to benefit from having a broad and experienced roster of IHOs.

DEPARTMENT RESPONSE: This rule applies to all currently certified IHOs. There are currently 118 IHOs who hear approximately 450 cases filed outside of NYC per year. Thus, the Department has no present need for IHOs to continue serving outside NYC once their employment with OATH terminates. However, to the extent that a need for additional IHOs arises in the future, when undertaking recruitment efforts, the Department will consider certifying previously certified IHOs on an accelerated schedule, subject to confirmation that the IHO meets the requirements of State and federal rules and regulations, and after consideration of any complaint findings, warnings, corrective actions, suspension, or revocation issues pursuant to 8 NYCRR 200.21. If necessary, the Department anticipates that it will publish guidance on such process. No changes to the proposed rule are necessary.

IHO Complaint Process

2. COMMENT: Some commenters argue that limiting the ability to present claims of bias would permit IHOs to conduct hearings in a hostile and inappropriate manner so long as they draft a legally sufficient decision. Another commenter states that eliminating bias violates the Individuals with Disabilities Education Act (IDEA) and New York State law. The commenter further maintains that if a party’s recourse is an appeal to the State Review Officer (SRO), few will avail themselves of that option. Another commenter complains that the proposed rule provides no mechanism to remove systemically biased IHOs.

DEPARTMENT RESPONSE: In response to this comment, the Department has amended the proposed rule to remove bias from the list of allegations that are outside the Department’s jurisdiction to investigate. Nevertheless, complainants must ensure that any claims of bias or systemic bias submitted to the Department meet the definition of IHO misconduct as defined in subparagraph (iii) of the proposed rule. No changes to the proposed rule are necessary.

3. COMMENT: One commenter contends that the regulation conflicts with the Commissioner’s obligation to establish procedures for the suspension or revocation of an IHO’s certification for good cause outlined in Education Law §4404[1]; specifically, the commenter maintains that bias and abuse of discretion represent “good cause.”

DEPARTMENT RESPONSE: The Commissioner, consistent with Education Law §4404(1), has developed procedures for the suspension or revocation of IHO certification for good cause (i.e., misconduct or incompetence). While the commenter believes that bias, partiality, and “abuse of discretion” are examples of good cause, they do not identify any authority requiring that the Commissioner entertain such arguments. Nevertheless, as noted in response to comment three, the proposed rule has been amended to remove bias from the list of allegations that are outside the Department’s jurisdiction to investigate.

4. COMMENT: One commenter contends the regulation violates due process insofar as the proposed rule provides no mechanism with which to remove a systemically biased IHO.

DEPARTMENT RESPONSE: The Department has proposed an amendment to address this issue; see the Department’s response to comment three.

5. COMMENT: Some commenters contend that barring claims of IHO discretion is problematic; the Department should make sure IHO discretion is exercised judiciously and not abused. Commenters also suggest that a hearing officer’s discretion is so vast that there would be very few claims that could be raised as misconduct or incompetence that were not within the IHO’s discretion. Another commenter maintains that the proposed rule would eliminate claims of “systematic abuses of discretion reflecting bias or incompetence,” for instance, an IHO who consistently grants one party’s adjournment requests while denying the other party’s requests.

DEPARTMENT RESPONSE: Many decisions are not within IHOs’ discretion. IHOs are, among other things, prohibited from soliciting extensions from the parties, refusing interpreters at hearing, deviating from the timelines for commencing the hearing or rendering a decision, and scheduling hearings at times that are inconvenient to the parties. As a result, the proposed rule’s reference to “discretion” does not encompass all decisions made by the IHO.

With respect to “systematic abuses of discretion” that may rise to the level of a bias claim, as noted above, the proposed rule will be amended to remove bias from the list of allegations that are outside the Department’s jurisdiction to investigate. See the Department’s response to comment three. No further changes to the proposed rule are necessary.

6. COMMENT: One commenter suggests that limiting claims of IHO discretion may affect a party’s procedural or substantive due process rights.

DEPARTMENT RESPONSE: The commenter fails to elaborate how a party’s procedural or substantive due process rights would be affected based on the proposed rule. As a result, no further changes to the proposed rule are necessary.

7. COMMENT: One commenter states that limiting complaints to those that have been, or could be, appealed to an SRO unnecessarily limits potentially legitimate complaints. The commenter indicates that the proposed rule will leave parents without an avenue to challenge an IHO determination in their favor without risking the IHO’s awarded relief at the SRO level. Moreover, the commenter indicates that appeals to the SRO have stringent rules and timeframes that “may not be in a family’s best interest” and further burden the Office of State Review’s docket. Other commenters maintain that the proposed rule conflates the correction of legal error with oversight of professional misconduct.

DEPARTMENT RESPONSE: The proposed rule limits the Department’s jurisdiction of allegations that were appealed to an SRO and decided by an SRO or could have been appealed to an SRO pursuant to section 200.5(k) of this Part.

Contrary to the commenters’ suggestion that the proposed rule conflates legal error and professional misconduct, the purpose of the proposed rule is to ensure that claims challenging determinations made by an IHO concerning the identification, evaluation, educational placement, or provision of a free appropriate public education are being properly directed to the SRO. Allegations that are specific to an IHO’s competence or conduct are still appropriately raised in section 200.21 IHO complaints to the Commissioner.

While the Department appreciates that appeals to the SRO may pose challenges, the commenters fail to explain why the Department should entertain complaints that are otherwise appropriately before an SRO. Therefore, no further changes to the proposed rule are necessary.

8. COMMENT: One commenter contends that the proposed rule requiring appeals to the SRO will require families to appeal every “biased decision” separately at “enormous expense and delay” that could only be afforded by well-resourced families and that a biased IHO could continue hearing cases while appeals to the SRO proceed. They also claim that a single IHO complaint can address systemic issues of bias, whereas appeals to the SRO cannot.

DEPARTMENT RESPONSE: There is nothing in the proposed rule requiring parents to appeal to the SRO. Rather, the proposed rule limits jurisdiction to allegations that were appealed to the SRO and decided or could have been appealed to the SRO pursuant to section 200.5(k) of this Part.

Additionally, there is no mechanism in section 200.21 to prevent an IHO from continuing to hear cases while a complaint against the IHO for misconduct or incompetence is pending.

Finally, to the extent the commenter opines on systemic issues of bias, see the Department’s response to comment three. No further changes to the proposed rule are necessary.

9. COMMENT: One commenter contends that the definition of misconduct as “demonstrably egregious” is vague and that it is an unreasonably high standard of review. Moreover, limiting the definition of incompetence to a denial of due process encourages IHOs to behave poorly. Another commenter generally recommends revising the definition of misconduct and clarifying the definition of incompetence.

DEPARTMENT RESPONSE: While the commenter quibbles with the Department’s proposed definition, the terms “misconduct” and “incompetence” were not previously defined. The Department believes that the proposed rule provides sufficient

clarity as to what kind of behavior is prohibited. Moreover, the Department has provided specific examples of behaviors that would qualify as demonstrably egregious within its definition. Notable, the commenter did not suggest an alternative definition. With respect to the definition of incompetence, the commenter does not specify how such a definition would encourage IHOs to behave poorly. As a result, no further changes to the proposed rule are necessary.

10. COMMENT: One commenter contends that, by defining misconduct, the proposed rule impermissibly narrows the definition to exclude bias and partiality.

DEPARTMENT RESPONSE: The Department disagrees that the definition of misconduct excludes bias and partiality. Rather, the proposed rule requires that complainants show that bias or partiality was “demonstrably egregious.” Moreover, the Department has proposed an amendment to address claims of bias; see the Department’s response to comment three. Therefore, no further changes to the proposed rule are necessary.

11. COMMENT: One commenter contends that the proposed rule violates federal requirements that IHOs have no personal or professional interest that conflict with their objectivity in the hearing by limiting the jurisdiction of claims; specifically, the commenter notes that the Department would have no way to address complaints where an IHO was continually demonstrating favoritism towards a certain party, an IHO was exhibiting “clear prejudgment and close-mindedness” at the hearing, or an IHO had an undisclosed financial relationship with attorneys regularly appearing before them. The commenter recommends that the Department remove bias and discretion from the current jurisdictional bases and that the Department include a provision addressing patterns of biased conduct.

DEPARTMENT RESPONSE: The proposed rule will be amended to remove bias from the list of allegations that are outside the Department’s jurisdiction to investigate. See the Department’s response to comment three. No further changes to the proposed rule are necessary.

12. COMMENT: Multiple commenters complain about the transition of the special education due process hearing system to OATH. Commenters also suggest that OATH IHOs inherently lack impartiality because of their employment with an administrative agency within NYC government.

DEPARTMENT RESPONSE: The commenters’ opinions regarding the due process hearing system and IHO qualifications are unrelated to the proposed rule. Moreover, these claims were the subject of unsuccessful litigation against the Department and other entities. As a result, no further changes to the proposed rule are necessary.

13. COMMENT: One commenter speculates that the purpose of the proposed rule is to address the influx of complaints against NYC OATH IHOs, not to address any issue with the statewide hearing officers.

DEPARTMENT RESPONSE: The regulation is intended to clarify the process for filing an IHO complaint and eliminate the filing of extraneous allegations across the State. Therefore, no further changes to the proposed rule are necessary.

14. COMMENT: One commenter maintains that “commissioner complaints create public records” while individual SRO appeals “bury evidence of misconduct patterns.”

DEPARTMENT RESPONSE: It is unclear how the commenter arrived at these conclusions, which do not appear to relate to the proposed rule. As a result, no further changes to the proposed rule are necessary.

15. COMMENT: One commenter suggests that the proposed rule is unnecessary as it could be addressed through “improved screening and clearer guidance.”

DEPARTMENT RESPONSE: The Department disagrees that these clarifications could be made in clearer guidance or improved screening. The Department already reviews all IHO complaints to determine which claims warrant further investigation. However, as noted above, recent complaints have shown that this process needs to be clarified to eliminate the filing of extraneous allegations. The Department disagrees that this could be accomplished with clearer guidance. Rather, clarifications regarding the definition of misconduct and incompetence (i.e., the standard of review) and the jurisdiction of the Department should be clearly addressed in regulation. As a result, no further changes to the proposed rule are necessary.