S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   8720
 
                             I N  S E N A T E
 
                               March 4, 2024
                                ___________
 
 Introduced  by  Sen.  GRIFFO -- read twice and ordered printed, and when
   printed to be committed to the Committee on Disabilities
 
 AN ACT to amend the education law, in relation to the  burden  of  proof
   for appeal procedures for children with handicapping conditions
 
   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 section 1 of 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] PARENT OR PERSON IN PARENTAL RELATIONSHIP
 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.  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
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD14461-01-4
 S. 8720                             2
 
 the United States code, the implementing  federal  regulations  and  the
 regulations of the commissioner. The commissioner shall promulgate regu-
 lations  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 employment. The commissioner shall promulgate regu-
 lations 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.
   § 2. Subdivision 1 of section 4404 of the education law, as amended by
 section  2  of  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 educa-
 tion to  students  with  disabilities]  PARENT  OR  PERSON  IN  PARENTAL
 RELATIONSHIP  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. The commis-
 sioner 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 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
 S. 8720                             3
 
 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 expedited 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 inter-
 im  alternative  educational  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 substantially likely to result in injury to  the  student
 or to others.
   §  3.  This act shall take effect immediately; provided, however, that
 the amendments 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 subdivision 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.