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SECTION 4404
Appeal procedures for children with handicapping conditions
Education (EDN) CHAPTER 16, TITLE 6, ARTICLE 89
§ 4404. Appeal procedures for children with handicapping conditions.
* 1. a. If the parent or person in parental relation of a student, the
board of education or trustees of a school district or a state agency
responsible for providing education to students with disabilities
presents a complaint with respect to any matter relating to the
identification, evaluation or educational placement of the student or
the provision of a free appropriate public education to the student or a
manifestation determination or other matter relating to placement upon
discipline of a student with a disability that may be the subject of an
impartial hearing pursuant to subsection (k) of section fourteen hundred
fifteen of title twenty of the United States code and the implementing
federal regulations, and the party presenting the complaint or their
attorney provides a due process complaint notice in accordance with
federal law and regulations and such complaint sets forth an alleged
violation that occurred not more than two years before the date the
parent or public agency knew or should have known about the alleged
action that forms the basis for the complaint, the board or agency shall
appoint an impartial hearing officer to review the due process complaint
notice when challenged and, if the matter is not resolved in a
resolution session that has been convened as required by federal law, to
preside over an impartial due process hearing 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 relation the option of mediation
pursuant to section forty-four hundred four-a of this article as an
alternative to an impartial hearing. Where the parent or person in
parental relation or a school district or public agency presents a
complaint, the school district or public agency responsible for
appointing the impartial hearing officer shall provide the parent or
person in parental relation with a procedural safeguards notice as
required pursuant to subsection (d) of section fourteen hundred fifteen
of title twenty of the United States code and the implementing federal
regulations. Notwithstanding any provision of this subdivision to the
contrary, the time limitation on presenting a complaint shall not apply
to a parent or person in parental relation to the student if the parent
or person in parental relation was prevented from requesting the
impartial hearing due to specific misrepresentations by the school
district or other public agency that it had resolved the problem forming
the basis of the complaint or due to the school district's or other
public agency's withholding of information from the parent or person in
parental relation that was required under federal law to be provided.
Nothing in this subdivision shall be construed to authorize the board of
education or trustees to bring an impartial hearing to override the
refusal of a parent or person in parental relation to consent where a
local educational agency is prohibited by federal law from initiating
such a hearing.

b. If a resolution session resolves the complaint, the parties shall
execute a legally binding agreement that is signed by both the parent or
person in parental relation and a representative of the school district
or public agency who has the authority to bind such district or agency
and shall be enforceable in any state court of competent jurisdiction or
a United States district court. A party may void such agreement within
three business days of the agreement's execution.

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
regulations 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. 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
employment. 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.

d. The commissioner shall promulgate regulations establishing
procedures and timelines for expedited hearings in cases involving: (1)
review of a decision that a student with a disability's behavior was not
a manifestation of such student's disability, or (2) review of an
interim alternative educational setting or other placement to the extent
required under federal law, or (3) 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.

* NB Effective until June 30, 2024

* 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
impartial 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. 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
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
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 interim 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.

* NB Effective June 30, 2024

2. Review by state review officer. A state review officer of the
education department shall review and may modify, in such cases and to
the extent that the review officer deems necessary, in order to properly
effectuate the purposes of this article, any determination of the
impartial hearing officer relating to the determination of the nature of
a child's handicapping condition, selection of an appropriate special
education program or service and the failure to provide such program and
require such board to comply with the provisions of such modification.
The commissioner shall adopt regulations governing the practice and
procedure in such appeals to the state review officer; provided,
however, that in no event shall any fee or charge whatsoever be imposed
for any appeal taken pursuant to this subdivision. The state review
officer is empowered to make all orders which are proper or necessary to
give effect to the decision of the review officer.

3. Review of the determination of a state review officer regarding
children with disabilities.

* a. Any final determination or order of a state review officer
rendered pursuant to subdivision two of this section may only be
reviewed in a proceeding brought in the supreme court pursuant to
article four of the civil practice law and rules, and paragraph b of
this subdivision, or in United States district court. Any such
proceeding shall be commenced within four months after the determination
to be reviewed becomes final and binding on the parties.

* NB Effective until June 30, 2024

* a. Any final determination or order of a state review officer
rendered pursuant to subdivision two of this section may only be
reviewed in a proceeding brought in the supreme court pursuant to
article four of the civil practice law and rules, and paragraph b of
this subdivision, or in United States district court.

* NB Effective June 30, 2024

* b. In any such proceeding under article four of the civil practice
law and rules, the court may grant any relief authorized by the
provisions of rule four hundred eleven of such law and rules, which
shall include any relief available in a civil action under section six
hundred fifteen of the individuals with disabilities education act (20
U.S.C. section 1415) and also may, in its discretion remand the
proceedings to the state review officer for further consideration upon a
finding that any relevant and material evidence is then available which
was not previously considered by the state review officer. Such
proceeding shall be deemed a proceeding against a body or officer for
purposes of section five hundred six of the civil practice law and
rules. The court shall receive the records of the administrative
proceedings, shall hear additional evidence at the request of a party,
and basing its decision on the preponderance of the evidence, shall
grant the relief that the court determines to be appropriate.

* NB Effective until June 30, 2024

* b. In any such proceeding under article four of the civil practice
law and rules, the court may grant any relief authorized by the
provisions of rule four hundred eleven of such law and rules, which
shall include any relief available in a civil action under section six
hundred fifteen of the individuals with disabilities education act (20
U.S.C. section 1415) and also may, in its discretion remand the
proceedings to the state review officer for further consideration upon a
finding that any relevant and material evidence is then available which
was not previously considered by the state review officer. Such
proceeding shall be deemed a proceeding against a body or officer for
purposes of sections two hundred seventeen and five hundred six of the
civil practice law and rules. The court shall receive the records of the
administrative proceedings, shall hear additional evidence at the
request of a party, and basing its decision on the preponderance of the
evidence, shall grant the relief that the court determines to be
appropriate.

* NB Effective June 30, 2024

4. a. During the pendency of any proceedings conducted pursuant to
this section, other than a proceeding subject to paragraph b of this
subdivision, and during the initial identification, evaluation and
placement procedure pursuant to this section and during the initial
identification, evaluation and placement procedure pursuant to section
forty-four hundred two of this article, unless the local school district
and the parents or persons in parental relationship otherwise agree, the
student shall remain in the then current educational placement of such
student, or, if applying for initial admission to a public school, shall
be placed in the public school program until all such proceedings have
been completed.

* b. For students with disabilities placed in an interim alternative
educational setting pursuant to clause (iv) or (vii) of subparagraph
three of paragraph g of subdivision three of section thirty-two hundred
fourteen of this chapter, during the pendency of proceedings conducted
pursuant to this section in which the parents or persons in parental
relation challenge the interim alternative educational setting or a
manifestation determination, the student shall remain in the interim
alternative educational setting pending the decision of the impartial
hearing officer or until expiration of the time period of the student's
placement in an interim alternative educational setting, whichever comes
first, unless the local school district and the parents or persons in
parental relation otherwise agree. After the expiration of such
placement in an interim alternative educational setting, if the school
district proposes to change the student's placement, during the pendency
of any proceedings to challenge the proposed change in placement, the
student shall return to and remain in the current educational placement,
which shall be the student's placement prior to the interim alternative
educational setting, unless the local school district and the parents or
persons in parental relation otherwise agree or unless as a result of a
decision by an impartial hearing officer in an expedited hearing, the
interim alternative educational setting is extended for a period not to
exceed forty-five school days based on a determination that maintaining
the current educational placement of the student is substantially likely
to result in injury to the student or to others. Such procedure for
extension of an interim alternative educational setting may be repeated
as necessary.

* NB Effective until June 30, 2024

* b. For students with disabilities placed in an interim alternative
educational setting pursuant to clause (iv) or (vii) of subparagraph
three of paragraph g of subdivision three of section thirty-two hundred
fourteen of this chapter, during the pendency of proceedings conducted
pursuant to this section in which the parents or persons in parental
relationship challenge the interim alternative educational setting or a
manifestation determination, the student shall remain in the interim
alternative educational setting pending the decision of the hearing
officer or until expiration of the time period of the student's interim
alternative placement, whichever comes first, unless the local school
district and the parents or persons in parental relationship otherwise
agree. After the expiration of such interim alternative educational
placement, if the school district proposes to change the student's
placement, during the pendency of any proceedings to challenge the
proposed change in placement, the student shall return to and remain in
the current educational placement, which shall be the student's
placement prior to the interim alternative educational setting, unless
the local school district and the parents or persons in parental
relationship otherwise agree or unless as a result of a decision by an
impartial hearing officer in an expedited hearing, the interim
alternative educational setting is extended or another appropriate
placement is ordered for a period not to exceed forty-five days based on
a determination that maintaining the current educational placement of
the student is substantially likely to result in injury to the student
or to others. Such procedure for extension of an interim alternative
educational setting may be repeated as necessary.

* NB Effective June 30, 2024

5. For purposes of this section, to the extent required by federal
law, a student presumed to have a disability for discipline purposes
shall be deemed to be a student with a disability and the parents or
persons in parental relationship of a student presumed to have a
disability for discipline purposes shall be afforded the procedural
rights of the parents or persons in parental relationship of a student
with a disability. Nothing in this section shall be construed to confer
upon a student presumed to have a disability for disciplinary purposes
greater procedural rights than such student would have under the
provisions of section six hundred fifteen of the individuals with
disabilities education act.