S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  8591

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                              May 29, 2009
                               ___________

Introduced  by  M. of A. KELLNER, RAIA, BURLING, CORWIN, ERRIGO, JORDAN,
  McDONOUGH, RABBITT, TOBACCO, TOWNSEND -- Multi-Sponsored by --  M.  of
  A. CONTE -- read once and referred to the Committee on Education

AN  ACT to amend the education law and the civil practice law and rules,
  in relation to  eliminating  state  review  officers;  and  to  repeal
  certain provisions of such laws relating thereto

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Paragraph c of subdivision 1 of section 4404 of the  educa-
tion  law,  as amended by chapter 583 of the laws of 2007, is amended to
read as follows:
  c. Individuals so appointed by a board of education or a state  agency
shall  be  selected  from a list of available impartial hearing officers
who have successfully completed an impartial  hearing  officer  training
program  conducted  by  the department according to a rotation selection
process prescribed in regulations of the  commissioner;  except  that  a
city  school  district  of  a  city having a population of more than one
million inhabitants shall be exempt from such regulations to the  extent
it  maintains  its  rotational selection process in effect prior to July
first, nineteen hundred ninety-three. A record of proceedings before the
impartial hearing officer shall be maintained and made available to  the
parties, and the hearing shall be conducted in accordance with the regu-
lations  of  the commissioner. The board of education or trustees of the
school district or the state agency responsible for providing  education
to  students with disabilities shall have the burden of proof, including
the burden of persuasion and burden of production, in any such impartial
hearing, except that a parent or person  in  parental  relation  seeking
tuition reimbursement for a unilateral parental placement shall have the
burden  of persuasion and burden of production on the appropriateness of
such placement. The decision of the impartial hearing officer  shall  be
binding  upon both parties unless appealed to the [state review officer]

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD11460-02-9
              

A. 8591                             2

UNITED STATES DISTRICT  COURT.    The  commissioner  shall  establish  a
department training program which shall be completed to the satisfaction
of  the  commissioner as a condition of certification. Impartial hearing
officers  shall  have  the qualifications specified in subsection (f) of
section fourteen hundred fifteen of title twenty of  the  United  States
code,  the  implementing  federal regulations and the regulations of the
commissioner. The commissioner shall promulgate  regulations  to  ensure
that  no  individual  employed  by  a school district, school or program
serving students with disabilities placed by a school district committee
on special education acts as an impartial hearing officer  and  that  no
individual  employed  by such schools or programs serves as an impartial
hearing officer for two years following the termination of such  employ-
ment.  The commissioner shall promulgate regulations establishing proce-
dures for the suspension or  revocation  of  impartial  hearing  officer
certification  for  good cause. The commissioner shall establish maximum
rates for the compensation of impartial hearing officers subject to  the
approval of the director of the division of the budget.
  S 2. Subdivision 1 of section 4404 of the education law, as amended by
chapter 583 of the laws of 2007, is amended to read as follows:
  1.  If the recommendation of the committee on special education is not
acceptable to the  parent  or  person  in  parental  relationship  of  a
student,  or if the committee or board of education or trustees fails to
make or effectuate such a recommendation within such periods of time  as
may  be  required  by  regulations  of the commissioner, such parents or
persons in parental relationship shall notify the board of education  of
this  situation and the board shall appoint an impartial hearing officer
to hear the appeal and make a determination within such period  of  time
as  the  commissioner  by  regulation shall determine, provided that the
board of education or trustees shall  offer  the  parent  or  person  in
parental  relationship  the  option  of  mediation  pursuant  to section
forty-four hundred four-a of this article as an alternative to an impar-
tial hearing. Individuals so appointed by a board of education shall  be
selected from a list of available hearing officers who have successfully
completed a hearing officer training program conducted by the department
according  to  a rotation selection process prescribed in regulations of
the commissioner; except that a city school district of a city having  a
population  of  more  than  one million inhabitants shall be exempt from
such regulations to the extent it  maintains  its  rotational  selection
process  in effect prior to July first, nineteen hundred ninety-three. A
record of proceedings before the hearing officer shall be maintained and
made available to the parties. The board of education or trustees of the
school district or the state agency responsible for providing  education
to  students with disabilities shall have the burden of proof, including
the burden of persuasion and burden of production, in any such impartial
hearing, except that a parent or person  in  parental  relation  seeking
tuition reimbursement for a unilateral parental placement shall have the
burden  of persuasion and burden of production on the appropriateness of
such placement. The decision of the hearing  officer  shall  be  binding
upon  both  parties unless appealed to the [state review officer] UNITED
STATES DISTRICT COURT.  The commissioner shall  establish  a  department
training  program  which  shall  be completed to the satisfaction of the
commissioner as a condition of  certification.  The  commissioner  shall
develop  and implement a plan to ensure that no individual employed by a
school district, school or program serving  students  with  disabilities
placed  by  a  school district committee on special education acts as an
impartial hearing officer  and  that  no  individual  employed  by  such

A. 8591                             3

schools or programs serves as an impartial hearing officer for two years
following  the  termination of such employment. Such plan shall be fully
implemented no later than July first, nineteen hundred  ninety-six.  The
commissioner  shall  promulgate  regulations establishing procedures for
the suspension or revocation of impartial hearing officer  certification
for  good  cause. The commissioner shall establish maximum rates for the
compensation of impartial hearing officers subject to  the  approval  of
the  director  of  the  division  of  the budget. The commissioner shall
promulgate regulations establishing procedures and timelines  for  expe-
dited  hearings  in  cases  involving:  (a)  review of a decision that a
student with a disability's behavior was not  a  manifestation  of  such
student's  disability,  or  (b)  review of an interim alternative educa-
tional setting or other placement to the extent required  under  federal
law,  or  (c)  a request by the school district for a determination that
maintaining the current educational placement of the student is substan-
tially likely to result in injury to the student or to others.
  S 3.  Subdivisions 2 and 3 of section 4404 of the  education  law  are
REPEALED.
  S  4.    Paragraph d of subdivision 7 of section 4410 of the education
law is REPEALED.
  S 5. Subdivision 5 of section 7803 of the civil practice law and rules
is REPEALED.
  S 6. This act shall take effect immediately, provided that the  amend-
ments  to  paragraph c of subdivision 1 of section 4404 of the education
law made by section one of this act shall be subject to  the  expiration
and reversion of such paragraph pursuant to section 22 of chapter 352 of
the  laws  of  2005,  as  amended, when upon such date the provisions of
section two of this act shall take effect.