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This entry was published on 2021-07-30
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SECTION 4404-A
Mediation program for students with disabilities
Education (EDN) CHAPTER 16, TITLE 6, ARTICLE 89
§ 4404-a. Mediation program for students with disabilities. * 1. The
commissioner, in consultation with the office of court administration,
shall establish a special education mediation program. For all school
districts and state agencies responsible for the provision of special
education, mediation of disputes regarding the provision of a free,
appropriate public education, including matters arising prior to the
filing of a complaint pursuant to subdivision one of section forty-four
hundred four of this article, shall be conducted by mediators furnished
by a community dispute resolution center under article twenty-one-A of
the judiciary law.

* NB Effective until June 30, 2024

* 1. The commissioner, in consultation with the office of court
administration, shall establish a special education mediation program.
In all school districts, mediation of disputes regarding the provision
of a free, appropriate public education shall be conducted by mediators
furnished by a community dispute resolution center under article
twenty-one-A of the judiciary law.

* NB Effective June 30, 2024

2. The board of education or trustees of each school district shall
inform parents or persons in parental relationship of students with
disabilities of the availability of the mediation program to resolve
complaints regarding the education of a student with a disability at the
same time notice of the availability of the impartial hearing procedures
is provided to such parents or persons in parental relationship.

3. Notwithstanding any other provision of law to the contrary, the
commissioner, in consultation with the office of court administration,
shall assure that a list of qualified mediators who are knowledgeable in
the laws and regulations relating to the provision of special education
and related services is maintained. For purposes of this section, if not
selected through a rotational selection process, mediators shall be
selected by mutual agreement of both parties to the mediation.

* 4. A school district may establish procedures to offer parents or
persons in parental relation and schools that elect not to use the
mediation process the opportunity to meet, at a time and place
convenient to such parents or persons in parental relation, with a
disinterested party who is under contract with a community dispute
resolution center, to encourage the use of the mediation process by such
parents and explain its benefits.

* NB Effective until June 30, 2024

* 4. A school district may establish procedures to require parents or
persons in parental relationship who elect not to use the mediation
process to meet, at a time and place convenient to such parents or
persons in parental relationship, with a disinterested party who is
under contract with a community dispute resolution center, to encourage
the use of the mediation process by such parents and explain its
benefits.

* NB Effective June 30, 2024

* 5. Each session in the mediation process shall be scheduled in a
timely manner, and shall be held in a location that is convenient to the
parties to the dispute. An agreement reached by the parties to the
dispute in the mediation process shall be set forth in a written
mediation agreement. Such agreement shall be a legally binding agreement
that sets forth the resolution of the dispute and: (i) states that all
discussions that occurred during the mediation process shall be
confidential and may not be used as evidence in any subsequent due
process hearing or civil action or proceeding; (ii) is signed by both
the parent or person in parental relation and a representative of the
school district or agency who has the authority to bind such school
district or agency; and (iii) is enforceable in any state court of
competent jurisdiction or in a United States district court. The
committee on special education or committee on preschool special
education shall immediately amend the student's individualized education
program to be consistent with such mediation agreement. Discussions that
occur in the mediation process shall be confidential, and may not be
used as evidence in any subsequent proceedings pursuant to section
forty-four hundred four of this article or in any subsequent civil
actions or proceedings.

* NB Effective until June 30, 2024

* 5. Each session in the mediation process shall be scheduled in a
timely manner, and shall be held in a location that is convenient to the
parties to the dispute. An agreement reached by the parties to the
dispute in the mediation process shall be set forth in a written
mediation agreement. The committee on special education or committee on
preschool special education shall immediately amend the student's
individualized education program to be consistent with such mediation
agreement. Discussions that occur in the mediation process shall be
confidential, and may not be used as evidence in any subsequent
proceedings pursuant to section forty-four hundred four of this article
or in any subsequent civil actions or proceedings. The parties to the
mediation process may be required to sign a confidentiality pledge prior
to the commencement of the process.

* NB Effective June 30, 2024

6. The provisions of this section shall not operate to diminish, deny,
delay, or limit any rights provided for by this article or any other
provisions of law, including the right of a parent or person in parental
relationship to request an impartial hearing.

7. Nothing in this section shall be construed to limit a parent or
person in parental relationship from requesting an impartial hearing,
pursuant to the provisions of section forty-four hundred four of this
article without utilizing the procedures set forth in this section. No
such person shall be deemed to have failed to exhaust administrative
remedies by requesting such an impartial hearing in the absence of or
prior to mediation, as provided for by this section.