S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                    195
 
                        2023-2024 Regular Sessions
 
                           I N  A S S E M B L Y
 
                                (PREFILED)
 
                              January 4, 2023
                                ___________
 
 Introduced  by  M.  of  A.  EICHENSTEIN -- read once and referred to the
   Committee on Education
 
 AN ACT to amend the education law, in relation  to  the  appointment  of
   impartial hearing officers to hear appeals of determinations regarding
   children with handicapping conditions

   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 section 1 of chapter 583 of the laws of 2007, is
 amended to read as follows:
   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. INDIVIDUALS SO
 APPOINTED SHALL NOT BE AN EMPLOYEE OF THE STATE  EDUCATIONAL  AGENCY  OR
 THE  LOCAL  EDUCATIONAL  AGENCY INVOLVED IN THE EDUCATION OR CARE OF THE
 CHILD, OR OF ANY PUBLIC AGENCY OR A PERSON HAVING A PERSONAL OR  PROFES-
 SIONAL  INTEREST  THAT  CONFLICTS  WITH  THE PERSON'S OBJECTIVITY IN THE
 HEARING; NOR MAY THE IMPARTIAL HEARING OFFICER BE AN EMPLOYEE OF A MUNI-
 CIPALITY IN WHICH THE SCHOOL DISTRICT IS LOCATED OR OF ANY OF ITS  AGEN-
 CIES  OR INSTRUMENTALITIES; 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 nine-
 ty-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 commission-
 er. The board of education or trustees of the  school  district  or  the
 state  agency responsible for providing education to students with disa-
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD00182-01-3
 A. 195                              2
 
 bilities shall have the burden of proof, including the burden of persua-
 sion and burden of production, in any  such  impartial  hearing,  except
 that  a parent or person in parental relation seeking tuition reimburse-
 ment  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 bind-
 ing 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 promul-
 gate regulations to ensure  that  NO  INDIVIDUAL  EMPLOYED,  CONTROLLED,
 MANAGED  OR  SUPERVISED  BY  A  MUNICIPALITY OR ANY DEPARTMENT OR AGENCY
 THEREIN, SHALL SERVE AS AN IMPARTIAL HEARING  OFFICER  TO  PRESIDE  OVER
 HEARINGS  IN OR CONCERNING A SCHOOL DISTRICT LOCATED WITHIN THAT MUNICI-
 PALITY, 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 employ-
 ment. The commissioner shall promulgate regulations establishing  proce-
 dures  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.
   § 2. Subdivision 1 of section 4404 of the education law, as amended by
 section 2 of 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 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.
 INDIVIDUALS SO APPOINTED SHALL NOT BE AN EMPLOYEE OF  THE  STATE  EDUCA-
 TIONAL  AGENCY OR THE LOCAL EDUCATIONAL AGENCY INVOLVED IN THE EDUCATION
 OR CARE OF THE CHILD, OR OF ANY PUBLIC  AGENCY  OR  A  PERSON  HAVING  A
 PERSONAL  OR  PROFESSIONAL  INTEREST  THAT  CONFLICTS  WITH THE PERSON'S
 OBJECTIVITY IN THE HEARING; NOR MAY THE IMPARTIAL HEARING OFFICER BE  AN
 EMPLOYEE OF A MUNICIPALITY IN WHICH THE SCHOOL DISTRICT IS LOCATED OR OF
 A. 195                              3
 
 ANY OF ITS AGENCIES OR INSTRUMENTALITIES. 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  commis-
 sioner  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,
 THAT    NO  INDIVIDUAL  EMPLOYED, CONTROLLED, MANAGED OR SUPERVISED BY A
 MUNICIPALITY OR ANY DEPARTMENT OR  AGENCY  THEREIN  SHALL  SERVE  AS  AN
 IMPARTIAL  HEARING  OFFICER  TO PRESIDE OVER HEARINGS IN OR CONCERNING A
 SCHOOL DISTRICT LOCATED WITHIN THAT MUNICIPALITY 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 estab-
 lishing 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 manifes-
 tation of such student's disability, or (b) review of an interim  alter-
 native  educational  setting  or  other placement to the extent required
 under federal law, or (c) a request by the school district for a  deter-
 mination  that  maintaining  the  current  educational  placement of the
 student is substantially likely to result in injury to the student or to
 others.
   § 3. This act shall take effect immediately; provided,  however,  that
 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.