Bill Text: NY A08591 | 2009-2010 | General Assembly | Introduced
Bill Title: Relates to the elimination of state review officer.
Spectrum: Bipartisan Bill
Status: (Introduced - Dead) 2010-05-24 - held for consideration in education [A08591 Detail]
Download: New_York-2009-A08591-Introduced.html
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: 1 Section 1. Paragraph c of subdivision 1 of section 4404 of the educa- 2 tion law, as amended by chapter 583 of the laws of 2007, is amended to 3 read as follows: 4 c. Individuals so appointed by a board of education or a state agency 5 shall be selected from a list of available impartial hearing officers 6 who have successfully completed an impartial hearing officer training 7 program conducted by the department according to a rotation selection 8 process prescribed in regulations of the commissioner; except that a 9 city school district of a city having a population of more than one 10 million inhabitants shall be exempt from such regulations to the extent 11 it maintains its rotational selection process in effect prior to July 12 first, nineteen hundred ninety-three. A record of proceedings before the 13 impartial hearing officer shall be maintained and made available to the 14 parties, and the hearing shall be conducted in accordance with the regu- 15 lations of the commissioner. The board of education or trustees of the 16 school district or the state agency responsible for providing education 17 to students with disabilities shall have the burden of proof, including 18 the burden of persuasion and burden of production, in any such impartial 19 hearing, except that a parent or person in parental relation seeking 20 tuition reimbursement for a unilateral parental placement shall have the 21 burden of persuasion and burden of production on the appropriateness of 22 such placement. The decision of the impartial hearing officer shall be 23 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 1 UNITED STATES DISTRICT COURT. The commissioner shall establish a 2 department training program which shall be completed to the satisfaction 3 of the commissioner as a condition of certification. Impartial hearing 4 officers shall have the qualifications specified in subsection (f) of 5 section fourteen hundred fifteen of title twenty of the United States 6 code, the implementing federal regulations and the regulations of the 7 commissioner. The commissioner shall promulgate regulations to ensure 8 that no individual employed by a school district, school or program 9 serving students with disabilities placed by a school district committee 10 on special education acts as an impartial hearing officer and that no 11 individual employed by such schools or programs serves as an impartial 12 hearing officer for two years following the termination of such employ- 13 ment. The commissioner shall promulgate regulations establishing proce- 14 dures for the suspension or revocation of impartial hearing officer 15 certification for good cause. The commissioner shall establish maximum 16 rates for the compensation of impartial hearing officers subject to the 17 approval of the director of the division of the budget. 18 S 2. Subdivision 1 of section 4404 of the education law, as amended by 19 chapter 583 of the laws of 2007, is amended to read as follows: 20 1. If the recommendation of the committee on special education is not 21 acceptable to the parent or person in parental relationship of a 22 student, or if the committee or board of education or trustees fails to 23 make or effectuate such a recommendation within such periods of time as 24 may be required by regulations of the commissioner, such parents or 25 persons in parental relationship shall notify the board of education of 26 this situation and the board shall appoint an impartial hearing officer 27 to hear the appeal and make a determination within such period of time 28 as the commissioner by regulation shall determine, provided that the 29 board of education or trustees shall offer the parent or person in 30 parental relationship the option of mediation pursuant to section 31 forty-four hundred four-a of this article as an alternative to an impar- 32 tial hearing. Individuals so appointed by a board of education shall be 33 selected from a list of available hearing officers who have successfully 34 completed a hearing officer training program conducted by the department 35 according to a rotation selection process prescribed in regulations of 36 the commissioner; except that a city school district of a city having a 37 population of more than one million inhabitants shall be exempt from 38 such regulations to the extent it maintains its rotational selection 39 process in effect prior to July first, nineteen hundred ninety-three. A 40 record of proceedings before the hearing officer shall be maintained and 41 made available to the parties. The board of education or trustees of the 42 school district or the state agency responsible for providing education 43 to students with disabilities shall have the burden of proof, including 44 the burden of persuasion and burden of production, in any such impartial 45 hearing, except that a parent or person in parental relation seeking 46 tuition reimbursement for a unilateral parental placement shall have the 47 burden of persuasion and burden of production on the appropriateness of 48 such placement. The decision of the hearing officer shall be binding 49 upon both parties unless appealed to the [state review officer] UNITED 50 STATES DISTRICT COURT. The commissioner shall establish a department 51 training program which shall be completed to the satisfaction of the 52 commissioner as a condition of certification. The commissioner shall 53 develop and implement a plan to ensure that no individual employed by a 54 school district, school or program serving students with disabilities 55 placed by a school district committee on special education acts as an 56 impartial hearing officer and that no individual employed by such A. 8591 3 1 schools or programs serves as an impartial hearing officer for two years 2 following the termination of such employment. Such plan shall be fully 3 implemented no later than July first, nineteen hundred ninety-six. The 4 commissioner shall promulgate regulations establishing procedures for 5 the suspension or revocation of impartial hearing officer certification 6 for good cause. The commissioner shall establish maximum rates for the 7 compensation of impartial hearing officers subject to the approval of 8 the director of the division of the budget. The commissioner shall 9 promulgate regulations establishing procedures and timelines for expe- 10 dited hearings in cases involving: (a) review of a decision that a 11 student with a disability's behavior was not a manifestation of such 12 student's disability, or (b) review of an interim alternative educa- 13 tional setting or other placement to the extent required under federal 14 law, or (c) a request by the school district for a determination that 15 maintaining the current educational placement of the student is substan- 16 tially likely to result in injury to the student or to others. 17 S 3. Subdivisions 2 and 3 of section 4404 of the education law are 18 REPEALED. 19 S 4. Paragraph d of subdivision 7 of section 4410 of the education 20 law is REPEALED. 21 S 5. Subdivision 5 of section 7803 of the civil practice law and rules 22 is REPEALED. 23 S 6. This act shall take effect immediately, provided that the amend- 24 ments to paragraph c of subdivision 1 of section 4404 of the education 25 law made by section one of this act shall be subject to the expiration 26 and reversion of such paragraph pursuant to section 22 of chapter 352 of 27 the laws of 2005, as amended, when upon such date the provisions of 28 section two of this act shall take effect.