Bill Text: NY S08720 | 2023-2024 | General Assembly | Introduced

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Bill Title: Relates to the burden of proof for appeal procedures for children with handicapping conditions; shifts the burden to the parent or person in parental relationship.

Spectrum: Partisan Bill (Republican 1-0)

Status: (Introduced) 2024-03-04 - REFERRED TO DISABILITIES [S08720 Detail]

Download: New_York-2023-S08720-Introduced.html

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                STATE OF NEW YORK
        ________________________________________________________________________

                                          8720

                    IN SENATE

                                      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:

     1    Section 1. Paragraph c of subdivision 1 of section 4404 of the  educa-
     2  tion law, as amended by section 1 of chapter 583 of the laws of 2007, is
     3  amended to 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] parent or person in parental relationship
    18  shall have the burden of proof, including the burden of  persuasion  and
    19  burden  of  production,  in  any  such impartial hearing[, except that a
    20  parent or person in parental relation seeking tuition reimbursement  for
    21  a  unilateral parental placement shall have the burden of persuasion and
    22  burden of production on the  appropriateness  of  such  placement].  The
    23  decision  of  the  impartial  hearing officer shall be binding upon both
    24  parties unless appealed to the state review  officer.  The  commissioner
    25  shall  establish  a department training program which shall be completed
    26  to the satisfaction of the commissioner as a condition of certification.
    27  Impartial hearing officers shall have the  qualifications  specified  in
    28  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

     1  the United States code, the implementing  federal  regulations  and  the
     2  regulations of the commissioner. The commissioner shall promulgate regu-
     3  lations  to  ensure  that  no  individual employed by a school district,
     4  school  or program serving students with disabilities placed by a school
     5  district committee on special education acts  as  an  impartial  hearing
     6  officer  and  that  no  individual  employed by such schools or programs
     7  serves as an impartial hearing  officer  for  two  years  following  the
     8  termination  of such employment. The commissioner shall promulgate regu-
     9  lations establishing procedures for  the  suspension  or  revocation  of
    10  impartial hearing officer certification for good cause. The commissioner
    11  shall  establish maximum rates for the compensation of impartial hearing
    12  officers subject to the approval of the director of the division of  the
    13  budget.
    14    § 2. Subdivision 1 of section 4404 of the education law, as amended by
    15  section  2  of  chapter  583  of the laws of 2007, is amended to read as
    16  follows:
    17    1. If the recommendation of the committee on special education is  not
    18  acceptable  to  the  parent  or  person  in  parental  relationship of a
    19  student, or if the committee or board of education or trustees fails  to
    20  make  or effectuate such a recommendation within such periods of time as
    21  may be required by regulations of  the  commissioner,  such  parents  or
    22  persons  in parental relationship shall notify the board of education of
    23  this situation and the board shall appoint an impartial hearing  officer
    24  to  hear  the appeal and make a determination within such period of time
    25  as the commissioner by regulation shall  determine,  provided  that  the
    26  board  of  education  or  trustees  shall  offer the parent or person in
    27  parental relationship  the  option  of  mediation  pursuant  to  section
    28  forty-four hundred four-a of this article as an alternative to an impar-
    29  tial  hearing. Individuals so appointed by a board of education shall be
    30  selected from a list of available hearing officers who have successfully
    31  completed a hearing officer training program conducted by the department
    32  according to a rotation selection process prescribed in  regulations  of
    33  the  commissioner; except that a city school district of a city having a
    34  population of more than one million inhabitants  shall  be  exempt  from
    35  such  regulations  to  the  extent it maintains its rotational selection
    36  process in effect prior to July first, nineteen hundred ninety-three.  A
    37  record of proceedings before the hearing officer shall be maintained and
    38  made  available  to  the parties. The [board of education or trustees of
    39  the school district or the state agency responsible for providing educa-
    40  tion to  students  with  disabilities]  parent  or  person  in  parental
    41  relationship  shall  have  the  burden of proof, including the burden of
    42  persuasion and burden of production, in  any  such  impartial  hearing[,
    43  except  that  a  parent  or  person in parental relation seeking tuition
    44  reimbursement for a unilateral parental placement shall have the  burden
    45  of  persuasion  and  burden of production on the appropriateness of such
    46  placement]. The decision of the hearing officer shall  be  binding  upon
    47  both  parties  unless  appealed to the state review officer. The commis-
    48  sioner shall establish a department  training  program  which  shall  be
    49  completed  to  the  satisfaction  of  the commissioner as a condition of
    50  certification. The commissioner shall develop and implement  a  plan  to
    51  ensure  that  no  individual  employed  by  a school district, school or
    52  program serving students with disabilities placed by a  school  district
    53  committee  on special education acts as an impartial hearing officer and
    54  that no individual employed by such schools or  programs  serves  as  an
    55  impartial  hearing  officer  for  two years following the termination of
    56  such employment. Such plan shall be fully implemented no later than July
        S. 8720                             3

     1  first, nineteen hundred ninety-six. The  commissioner  shall  promulgate
     2  regulations  establishing procedures for the suspension or revocation of
     3  impartial hearing officer certification for good cause. The commissioner
     4  shall  establish maximum rates for the compensation of impartial hearing
     5  officers subject to the approval of the director of the division of  the
     6  budget.  The  commissioner  shall  promulgate  regulations  establishing
     7  procedures and timelines for expedited hearings in cases involving:  (a)
     8  review of a decision that a student with a disability's behavior was not
     9  a manifestation of such student's disability, or (b) review of an inter-
    10  im  alternative  educational  setting  or  other placement to the extent
    11  required under federal law, or (c) a request by the school district  for
    12  a  determination  that  maintaining the current educational placement of
    13  the student is substantially likely to result in injury to  the  student
    14  or to others.
    15    §  3.  This act shall take effect immediately; provided, however, that
    16  the amendments to paragraph c of subdivision 1 of section  4404  of  the
    17  education  law  made  by section one of this act shall be subject to the
    18  expiration and reversion of such subdivision pursuant to section  22  of
    19  chapter  352  of  the  laws of 2005, as amended, when upon such date the
    20  provisions of section two of this act shall take effect.