S T A T E O F N E W Y O R K
________________________________________________________________________
746
2011-2012 Regular Sessions
I N A S S E M B L Y
(PREFILED)
January 5, 2011
___________
Introduced by M. of A. KELLNER, RAIA, McDONOUGH, MENG, ROBINSON,
BURLING, RABBITT, WEISENBERG, HOOPER, CORWIN, TOBACCO, ZEBROWSKI,
JORDAN, GUNTHER, JAFFEE -- Multi-Sponsored by -- M. of A. CONTE,
DUPREY, FINCH, J. MILLER, MOLINARO, SAYWARD -- read once and referred
to the Committee on Education
AN ACT to amend the education law, in relation to eliminating state
review officers; and to repeal certain provisions of the education law
and the civil practice law and rules 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
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD00586-01-1
A. 746 2
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]
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
A. 746 3
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 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.