S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   7943
 
                        2021-2022 Regular Sessions
 
                           I N  A S S E M B L Y
 
                               June 2, 2021
                                ___________
 
 Introduced  by M. of A. WEINSTEIN, EICHENSTEIN -- read once and referred
   to the Committee on Education
 
 AN ACT to amend the education law, in relation to impartial hearings  in
   school districts in cities with a population of one million or more
 
   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 chapter 583 of the laws of 2007, is amended to
 read as follows:
   c. Individuals so appointed by a STATE AGENCY OR A board of  education
 [or  a state agency] OTHER THAN THE BOARD IN A CITY SCHOOL DISTRICT OF A
 CITY HAVING A POPULATION OF MORE THAN ONE MILLION INHABITANTS  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 main-
 tains its rotational selection process in effect prior  to  July  first,
 nineteen  hundred  ninety-three].    IN A CITY SCHOOL DISTRICT OF A CITY
 HAVING A POPULATION OF MORE  THAN  ONE  MILLION  INHABITANTS,  IMPARTIAL
 HEARING  OFFICERS SHALL BE APPOINTED FROM AMONG INDEPENDENT ADJUDICATORS
 EMPLOYED BY THE OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS. AN  IMPAR-
 TIAL  HEARING OFFICER MAY RECEIVE EVIDENCE, INCLUDING BUT NOT LIMITED TO
 DOCUMENTARY AND TESTIMONIAL EVIDENCE. TESTIMONY MAY BE GIVEN IN  PERSON,
 BY  TELEPHONE OR VIDEO CONFERENCE, PROVIDED THAT SUCH TESTIMONY SHALL BE
 MADE UNDER OATH AND SHALL BE  SUBJECT  TO  CROSS  EXAMINATION,  PROVIDED
 FURTHER  THAT  ALL  PERSONALLY IDENTIFIABLE DATA, INFORMATION OR RECORDS
 PERTAINING TO STUDENTS WITH DISABILITIES EXAMINED DURING SUCH  TESTIMONY
 SHALL  BE  SUBJECT  TO  THE  CONFIDENTIALITY REQUIREMENTS ESTABLISHED BY
 REGULATIONS OF THE COMMISSIONER. A  record  of  proceedings  before  the
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD11755-01-1

 A. 7943                             2
 
 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 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  condi-
 tion of certification, PROVIDED THAT THE OFFICE OF ADMINISTRATIVE TRIALS
 AND  HEARINGS  OF  A  CITY  HAVING A POPULATION OF MORE THAN ONE MILLION
 INHABITANTS SHALL BE AUTHORIZED TO GRANT CERTIFICATION  TO  PERSONS  WHO
 HAVE  COMPLETED  TRAINING  REQUIRED BY SUCH OFFICE, AND TO REQUIRE ADDI-
 TIONAL TRAINING FOR PERSONS WHO HAVE  RECEIVED  CERTIFICATION  FROM  THE
 STATE  EDUCATION  DEPARTMENT.  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 commis-
 sioner  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 APPOINTED BY A STATE AGENCY  OR  A  BOARD  OF
 EDUCATION  OTHER  THAN  THE  BOARD  IN  A CITY SCHOOL DISTRICT OF A CITY
 HAVING A POPULATION OF MORE THAN ONE MILLION INHABITANTS, 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
 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 IN 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

 A. 7943                             3

 process  in  effect  prior to July first, nineteen hundred ninety-three]
 IMPARTIAL HEARING OFFICERS SHALL BE  APPOINTED  FROM  AMONG  INDEPENDENT
 ADJUDICATORS  EMPLOYED  BY THE OFFICE OF ADMINISTRATIVE TRIALS AND HEAR-
 INGS.  THE IMPARTIAL HEARING OFFICER MAY RECEIVE EVIDENCE, INCLUDING BUT
 NOT LIMITED TO DOCUMENTARY AND TESTIMONIAL EVIDENCE.  TESTIMONY  MAY  BE
 GIVEN  IN  PERSON,  BY TELEPHONE OR VIDEO CONFERENCE, PROVIDED THAT SUCH
 TESTIMONY SHALL BE MADE UNDER OATH AND SHALL BE SUBJECT TO  CROSS  EXAM-
 INATION,  PROVIDED FURTHER THAT ALL PERSONALLY IDENTIFIABLE DATA, INFOR-
 MATION OR RECORDS PERTAINING  TO  STUDENTS  WITH  DISABILITIES  EXAMINED
 DURING  SUCH  TESTIMONY SHALL BE SUBJECT TO THE CONFIDENTIALITY REQUIRE-
 MENTS ESTABLISHED BY  REGULATIONS  OF  THE  COMMISSIONER.  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,  PROVIDED  THAT  THE  OFFICE OF ADMINISTRATIVE TRIALS AND
 HEARINGS OF A CITY HAVING A POPULATION OF MORE THAN ONE MILLION INHABIT-
 ANTS SHALL BE AUTHORIZED TO GRANT  CERTIFICATION  TO  PERSONS  WHO  HAVE
 COMPLETED  TRAINING  REQUIRED  BY SUCH OFFICE, AND TO REQUIRE ADDITIONAL
 TRAINING FOR PERSONS WHO HAVE  RECEIVED  CERTIFICATION  FROM  THE  STATE
 EDUCATION  DEPARTMENT.  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  APPOINTED  BY A STATE AGENCY OR A BOARD OF
 EDUCATION OTHER THAN THE BOARD IN A  CITY  SCHOOL  DISTRICT  OF  A  CITY
 HAVING A POPULATION OF MORE THAN ONE MILLION INHABITANTS, 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  educa-
 tional  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 substan-
 tially likely to result in injury to the student or to others.
   §  3.  The  New  York  city charter is amended by adding a new section
 1049-c to read as follows:
   § 1049-C. SPECIAL EDUCATION HEARINGS DIVISION.  A. THERE SHALL  BE  IN
 THE  OFFICE  OF  ADMINISTRATIVE  TRIALS AND HEARINGS A SPECIAL EDUCATION
 HEARINGS DIVISION THAT SHALL BE RESPONSIBLE FOR FUNCTIONS  CONDUCTED  BY

 A. 7943                             4
 
 IMPARTIAL  HEARING OFFICERS PURSUANT TO SECTIONS FORTY-FOUR HUNDRED FOUR
 AND FORTY-FOUR HUNDRED TEN OF THE EDUCATION  LAW  FOR  THE  CITY  SCHOOL
 DISTRICT.
   B. THE CHIEF ADMINISTRATIVE LAW JUDGE SHALL HAVE AUTHORITY TO:
   1. DIRECT THE DIVISION WITH RESPECT TO ITS MANAGEMENT AND STRUCTURE;
   2.  APPOINT A STAFF OF FULL-TIME ATTORNEYS AND MAINTAIN A SUPPLEMENTAL
 ROSTER OF INDEPENDENT CONTRACTORS TO SERVE AS  INDEPENDENT  ADJUDICATORS
 WITH  THE  AUTHORITY OF IMPARTIAL HEARING OFFICERS ACTING UNDER SECTIONS
 FORTY-FOUR HUNDRED FOUR AND FORTY-FOUR HUNDRED TEN OF THE EDUCATION LAW.
 SUCH INDEPENDENT ADJUDICATORS SHALL HAVE THE QUALIFICATIONS REQUIRED  BY
 SUCH  SECTIONS AND APPLICABLE REGULATIONS OF THE STATE EDUCATION COMMIS-
 SIONER, PROVIDED THAT THEY SHALL HAVE A MINIMUM OF FIVE YEARS EXPERIENCE
 IN THE PRACTICE OF LAW, INCLUDING AT LEAST ONE YEAR OF PRACTICE OR EXPE-
 RIENCE IN THE AREAS OF EDUCATION, SPECIAL EDUCATION, DISABILITY  RIGHTS,
 CIVIL RIGHTS OR ADMINISTRATIVE LAW;
   3.  TRAIN  AND  CERTIFY  SUCH ATTORNEYS AND INDEPENDENT CONTRACTORS AS
 QUALIFIED TO CONDUCT HEARINGS PURSUANT TO  SECTIONS  FORTY-FOUR  HUNDRED
 FOUR  AND  FORTY-FOUR  HUNDRED  TEN  OF  THE  EDUCATION LAW, AND REQUIRE
 PERSONS WHO HAVE CERTIFICATION GRANTED BY THE STATE EDUCATION DEPARTMENT
 TO RECEIVE ADDITIONAL  TRAINING  TO  SUPPLEMENT  THE  TRAINING  PROVIDED
 PURSUANT TO THE EDUCATION LAW AND APPLICABLE REGULATIONS;
   4. DETERMINE THE COMPENSATION OF SUCH INDEPENDENT ADJUDICATORS;
   5. ASSIGN INDEPENDENT ADJUDICATORS TO CASES ON A ROTATIONAL BASIS;
   6.  SET  DEADLINES AND OTHER REQUIREMENTS FOR THE DISPOSITION OF CASES
 AS NEEDED TO COMPLY WITH APPLICABLE MANDATES;
   7. EVALUATE, DISCIPLINE  AND  REMOVE  INDEPENDENT  ADJUDICATORS  IN  A
 MANNER  CONSISTENT  WITH SECTIONS THIRTEEN-A, THREE HUNDRED EIGHTY-SEVEN
 AND EIGHT HUNDRED TWELVE OF THIS CHARTER.   INDEPENDENT ADJUDICATORS  IN
 THE  SPECIAL EDUCATION DIVISION SHALL NOT BE SUBJECT TO THE PROVISION OF
 SECTION ONE THOUSAND FORTY-NINE OF THIS CHAPTER THAT  REQUIRES  ADMINIS-
 TRATIVE  LAW  JUDGES TO BE APPOINTED FOR A TERM OF FIVE YEARS, AND SHALL
 NOT BE REQUIRED TO RESIDE WITHIN THE CITY;
   8. PROMULGATE REGULATIONS CONCERNING THE CONDUCT OF IMPARTIAL HEARINGS
 THAT SUPPLEMENT REGULATIONS OF THE STATE EDUCATION COMMISSIONER IN ORDER
 TO PROMOTE THE FAIR AND EFFICIENT RESOLUTION OF CASES; AND
   9. TAKE SUCH OTHER ACTIONS CONSISTENT WITH STATE  REGULATIONS  AS  THE
 CHIEF  ADMINISTRATIVE  LAW  JUDGE DETERMINES NECESSARY TO EFFECTUATE THE
 PROMPT AND EFFICIENT RESOLUTION OF CASES.
   C.  INDEPENDENT  ADJUDICATORS  SHALL  CONDUCT  HEARINGS  IN  A  MANNER
 CONSISTENT  WITH  REGULATIONS ISSUED BY THE STATE EDUCATION COMMISSIONER
 PURSUANT TO SECTION FORTY-FOUR HUNDRED FOUR AND FORTY-FOUR  HUNDRED  TEN
 OF THE EDUCATION LAW, AND ANY ADDITIONAL REGULATIONS ISSUED BY THE CHIEF
 ADMINISTRATIVE  LAW  JUDGE. THEY MAY RECEIVE EVIDENCE, INCLUDING BUT NOT
 LIMITED TO DOCUMENTARY AND TESTIMONIAL EVIDENCE. TESTIMONY MAY BE  GIVEN
 IN PERSON, BY TELEPHONE OR VIDEO CONFERENCE, PROVIDED THAT SUCH TESTIMO-
 NY  SHALL  BE MADE UNDER OATH AND SHALL BE SUBJECT TO CROSS EXAMINATION,
 PROVIDED FURTHER THAT ALL PERSONALLY IDENTIFIABLE DATA,  INFORMATION  OR
 RECORDS  PERTAINING  TO  STUDENTS WITH DISABILITIES EXAMINED DURING SUCH
 TESTIMONY SHALL BE SUBJECT TO THE  CONFIDENTIALITY  REQUIREMENTS  ESTAB-
 LISHED  BY REGULATIONS OF THE STATE EDUCATION COMMISSIONER AND ANY ADDI-
 TIONAL CONFIDENTIALITY REQUIREMENTS ESTABLISHED BY THE CHIEF ADMINISTRA-
 TIVE LAW JUDGE.
   § 4. No existing right or remedy  of  any  character  shall  be  lost,
 impaired or affected by reason of the adoption of this act.
   § 5. No action or proceeding, administrative, civil or criminal, pend-
 ing  at  the time when this act shall take effect, brought by or against

 A. 7943                             5
 
 the city school district of the city of New York or any agency or  offi-
 cer  of  such  city  school  district, or any impartial hearing officer,
 shall be affected or abated by the adoption of this act or  by  anything
 contained herein.
   §  6. The state education commissioner, the chief administrative judge
 of the New York city office of administrative trials and  hearings,  and
 the  chancellor  of  the  New York city school district shall promulgate
 such regulations as are necessary to effectuate the purposes of this act
 consistent with applicable requirements of federal law, and  shall  take
 such  other steps as are necessary to implement the requirements of this
 act.
   § 7. This act shall take effect immediately, provided that:
   1. Impartial hearing officers assigned prior to the conclusion of  the
 transition period described in subdivision two of this section to review
 a  due  process complaint or preside over a due process hearing pursuant
 to sections 4404 and 4410 of the education law shall  continue  to  have
 jurisdiction  with  respect  to  such cases. After the conclusion of the
 transition period, impartial hearing officers shall not be assigned  new
 cases  arising  from  the  city  school district of the city of New York
 except by the office of administrative trials and hearings of  the  city
 of New York.
   2.  A transition period shall commence upon the effective date of this
 act. During such transition period, the city school district of the city
 of New York may refer cases to impartial hearing officers in  accordance
 with  provisions  of the education law in effect prior to the transition
 period, or to the office of administrative trials and  hearings  of  the
 city  of  New  York.  Such  referrals shall be made in accordance with a
 random assignment system agreed upon between the  city  school  district
 and  such office. Such transition period shall end on the later of Janu-
 ary 1, 2022 or 30 days after the date when the chief administrative  law
 judge  of the New York city office of administrative trials and hearings
 certifies to the state education commissioner that such office has taken
 all steps necessary to assume the  responsibilities  conferred  on  such
 office by this act.
   3.  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.