Bill Text: NY S07183 | 2021-2022 | General Assembly | Introduced
Bill Title: Requires the appointment of impartial hearing officers in New York City school districts for appeals procedures for children with handicapping conditions.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2022-01-05 - REFERRED TO NEW YORK CITY EDUCATION [S07183 Detail]
Download: New_York-2021-S07183-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 7183 2021-2022 Regular Sessions IN SENATE June 4, 2021 ___________ Introduced by Sen. GOUNARDES -- read twice and ordered printed, and when printed to be committed to the Committee on Rules 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: 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 state agency or a board of education 5 [or a state agency] other than the board in a city school district of a 6 city having a population of more than one million inhabitants shall be 7 selected from a list of available impartial hearing officers who have 8 successfully completed an impartial hearing officer training program 9 conducted by the department according to a rotation selection process 10 prescribed in regulations of the commissioner[; except that a city11school district of a city having a population of more than one million12inhabitants shall be exempt from such regulations to the extent it main-13tains its rotational selection process in effect prior to July first,14nineteen hundred ninety-three]. In a city school district of a city 15 having a population of more than one million inhabitants, impartial 16 hearing officers shall be appointed from among independent adjudicators 17 employed by the office of administrative trials and hearings. An impar- 18 tial hearing officer may receive evidence, including but not limited to 19 documentary and testimonial evidence. Testimony may be given in person, 20 by telephone or video conference, provided that such testimony shall be 21 made under oath and shall be subject to cross examination, provided 22 further that all personally identifiable data, information or records 23 pertaining to students with disabilities examined during such testimony 24 shall be subject to the confidentiality requirements established by 25 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. LBD11755-01-1S. 7183 2 1 impartial hearing officer shall be maintained and made available to the 2 parties, and the hearing shall be conducted in accordance with the regu- 3 lations of the commissioner. The board of education or trustees of the 4 school district or the state agency responsible for providing education 5 to students with disabilities shall have the burden of proof, including 6 the burden of persuasion and burden of production, in any such impartial 7 hearing, except that a parent or person in parental relation seeking 8 tuition reimbursement for a unilateral parental placement shall have the 9 burden of persuasion and burden of production on the appropriateness of 10 such placement. The decision of the impartial hearing officer shall be 11 binding upon both parties unless appealed to the state review officer. 12 The commissioner shall establish a department training program which 13 shall be completed to the satisfaction of the commissioner as a condi- 14 tion of certification, provided that the office of administrative trials 15 and hearings of a city having a population of more than one million 16 inhabitants shall be authorized to grant certification to persons who 17 have completed training required by such office, and to require addi- 18 tional training for persons who have received certification from the 19 state education department. Impartial hearing officers shall have the 20 qualifications specified in subsection (f) of section fourteen hundred 21 fifteen of title twenty of the United States code, the implementing 22 federal regulations and the regulations of the commissioner. The commis- 23 sioner shall promulgate regulations to ensure that no individual 24 employed by a school district, school or program serving students with 25 disabilities placed by a school district committee on special education 26 acts as an impartial hearing officer and that no individual employed by 27 such schools or programs serves as an impartial hearing officer for two 28 years following the termination of such employment. The commissioner 29 shall promulgate regulations establishing procedures for the suspension 30 or revocation of impartial hearing officer certification for good cause. 31 The commissioner shall establish maximum rates for the compensation of 32 impartial hearing officers appointed by a state agency or a board of 33 education other than the board in a city school district of a city 34 having a population of more than one million inhabitants, subject to the 35 approval of the director of the division of the budget. 36 § 2. Subdivision 1 of section 4404 of the education law, as amended by 37 chapter 583 of the laws of 2007, is amended to read as follows: 38 1. If the recommendation of the committee on special education is not 39 acceptable to the parent or person in parental relationship of a 40 student, or if the committee or board of education or trustees fails to 41 make or effectuate such a recommendation within such periods of time as 42 may be required by regulations of the commissioner, such parents or 43 persons in parental relationship shall notify the board of education of 44 this situation and the board shall appoint an impartial hearing officer 45 to hear the appeal and make a determination within such period of time 46 as the commissioner by regulation shall determine, provided that the 47 board of education or trustees shall offer the parent or person in 48 parental relationship the option of mediation pursuant to section 49 forty-four hundred four-a of this article as an alternative to an impar- 50 tial hearing. Individuals so appointed by a board of education shall be 51 selected from a list of available hearing officers who have successfully 52 completed a hearing officer training program conducted by the department 53 according to a rotation selection process prescribed in regulations of 54 the commissioner; except that in a city school district of a city having 55 a population of more than one million inhabitants [shall be exempt from56such regulations to the extent it maintains its rotational selectionS. 7183 3 1process in effect prior to July first, nineteen hundred ninety-three] 2 impartial hearing officers shall be appointed from among independent 3 adjudicators employed by the office of administrative trials and hear- 4 ings. The impartial hearing officer may receive evidence, including but 5 not limited to documentary and testimonial evidence. Testimony may be 6 given in person, by telephone or video conference, provided that such 7 testimony shall be made under oath and shall be subject to cross exam- 8 ination, provided further that all personally identifiable data, infor- 9 mation or records pertaining to students with disabilities examined 10 during such testimony shall be subject to the confidentiality require- 11 ments established by regulations of the commissioner. A record of 12 proceedings before the hearing officer shall be maintained and made 13 available to the parties. The board of education or trustees of the 14 school district or the state agency responsible for providing education 15 to students with disabilities shall have the burden of proof, including 16 the burden of persuasion and burden of production, in any such impartial 17 hearing, except that a parent or person in parental relation seeking 18 tuition reimbursement for a unilateral parental placement shall have the 19 burden of persuasion and burden of production on the appropriateness of 20 such placement. The decision of the hearing officer shall be binding 21 upon both parties unless appealed to the state review officer. The 22 commissioner shall establish a department training program which shall 23 be completed to the satisfaction of the commissioner as a condition of 24 certification, provided that the office of administrative trials and 25 hearings of a city having a population of more than one million inhabit- 26 ants shall be authorized to grant certification to persons who have 27 completed training required by such office, and to require additional 28 training for persons who have received certification from the state 29 education department. The commissioner shall develop and implement a 30 plan to ensure that no individual employed by a school district, school 31 or program serving students with disabilities placed by a school 32 district committee on special education acts as an impartial hearing 33 officer and that no individual employed by such schools or programs 34 serves as an impartial hearing officer for two years following the 35 termination of such employment. Such plan shall be fully implemented no 36 later than July first, nineteen hundred ninety-six. The commissioner 37 shall promulgate regulations establishing procedures for the suspension 38 or revocation of impartial hearing officer certification for good cause. 39 The commissioner shall establish maximum rates for the compensation of 40 impartial hearing officers appointed by a state agency or a board of 41 education other than the board in a city school district of a city 42 having a population of more than one million inhabitants, subject to the 43 approval of the director of the division of the budget. The commissioner 44 shall promulgate regulations establishing procedures and timelines for 45 expedited hearings in cases involving: (a) review of a decision that a 46 student with a disability's behavior was not a manifestation of such 47 student's disability, or (b) review of an interim alternative educa- 48 tional setting or other placement to the extent required under federal 49 law, or (c) a request by the school district for a determination that 50 maintaining the current educational placement of the student is substan- 51 tially likely to result in injury to the student or to others. 52 § 3. The New York city charter is amended by adding a new section 53 1049-c to read as follows: 54 § 1049-c. Special education hearings division. a. There shall be in 55 the office of administrative trials and hearings a special education 56 hearings division that shall be responsible for functions conducted byS. 7183 4 1 impartial hearing officers pursuant to sections forty-four hundred four 2 and forty-four hundred ten of the education law for the city school 3 district. 4 b. The chief administrative law judge shall have authority to: 5 1. direct the division with respect to its management and structure; 6 2. appoint a staff of full-time attorneys and maintain a supplemental 7 roster of independent contractors to serve as independent adjudicators 8 with the authority of impartial hearing officers acting under sections 9 forty-four hundred four and forty-four hundred ten of the education law. 10 Such independent adjudicators shall have the qualifications required by 11 such sections and applicable regulations of the state education commis- 12 sioner, provided that they shall have a minimum of five years experience 13 in the practice of law, including at least one year of practice or expe- 14 rience in the areas of education, special education, disability rights, 15 civil rights or administrative law; 16 3. train and certify such attorneys and independent contractors as 17 qualified to conduct hearings pursuant to sections forty-four hundred 18 four and forty-four hundred ten of the education law, and require 19 persons who have certification granted by the state education department 20 to receive additional training to supplement the training provided 21 pursuant to the education law and applicable regulations; 22 4. determine the compensation of such independent adjudicators; 23 5. assign independent adjudicators to cases on a rotational basis; 24 6. set deadlines and other requirements for the disposition of cases 25 as needed to comply with applicable mandates; 26 7. evaluate, discipline and remove independent adjudicators in a 27 manner consistent with sections thirteen-a, three hundred eighty-seven 28 and eight hundred twelve of this charter. Independent adjudicators in 29 the special education division shall not be subject to the provision of 30 section one thousand forty-nine of this chapter that requires adminis- 31 trative law judges to be appointed for a term of five years, and shall 32 not be required to reside within the city; 33 8. promulgate regulations concerning the conduct of impartial hearings 34 that supplement regulations of the state education commissioner in order 35 to promote the fair and efficient resolution of cases; and 36 9. take such other actions consistent with state regulations as the 37 chief administrative law judge determines necessary to effectuate the 38 prompt and efficient resolution of cases. 39 c. Independent adjudicators shall conduct hearings in a manner 40 consistent with regulations issued by the state education commissioner 41 pursuant to section forty-four hundred four and forty-four hundred ten 42 of the education law, and any additional regulations issued by the chief 43 administrative law judge. They may receive evidence, including but not 44 limited to documentary and testimonial evidence. Testimony may be given 45 in person, by telephone or video conference, provided that such testimo- 46 ny shall be made under oath and shall be subject to cross examination, 47 provided further that all personally identifiable data, information or 48 records pertaining to students with disabilities examined during such 49 testimony shall be subject to the confidentiality requirements estab- 50 lished by regulations of the state education commissioner and any addi- 51 tional confidentiality requirements established by the chief administra- 52 tive law judge. 53 § 4. No existing right or remedy of any character shall be lost, 54 impaired or affected by reason of the adoption of this act. 55 § 5. No action or proceeding, administrative, civil or criminal, pend- 56 ing at the time when this act shall take effect, brought by or againstS. 7183 5 1 the city school district of the city of New York or any agency or offi- 2 cer of such city school district, or any impartial hearing officer, 3 shall be affected or abated by the adoption of this act or by anything 4 contained herein. 5 § 6. The state education commissioner, the chief administrative judge 6 of the New York city office of administrative trials and hearings, and 7 the chancellor of the New York city school district shall promulgate 8 such regulations as are necessary to effectuate the purposes of this act 9 consistent with applicable requirements of federal law, and shall take 10 such other steps as are necessary to implement the requirements of this 11 act. 12 § 7. This act shall take effect immediately, provided that: 13 1. Impartial hearing officers assigned prior to the conclusion of the 14 transition period described in subdivision two of this section to review 15 a due process complaint or preside over a due process hearing pursuant 16 to sections 4404 and 4410 of the education law shall continue to have 17 jurisdiction with respect to such cases. After the conclusion of the 18 transition period, impartial hearing officers shall not be assigned new 19 cases arising from the city school district of the city of New York 20 except by the office of administrative trials and hearings of the city 21 of New York. 22 2. A transition period shall commence upon the effective date of this 23 act. During such transition period, the city school district of the city 24 of New York may refer cases to impartial hearing officers in accordance 25 with provisions of the education law in effect prior to the transition 26 period, or to the office of administrative trials and hearings of the 27 city of New York. Such referrals shall be made in accordance with a 28 random assignment system agreed upon between the city school district 29 and such office. Such transition period shall end on the later of Janu- 30 ary 1, 2022 or 30 days after the date when the chief administrative law 31 judge of the New York city office of administrative trials and hearings 32 certifies to the state education commissioner that such office has taken 33 all steps necessary to assume the responsibilities conferred on such 34 office by this act. 35 3. The amendments to paragraph c of subdivision 1 of section 4404 of 36 the education law made by section one of this act shall be subject to 37 the expiration and reversion of such subdivision pursuant to section 22 38 of chapter 352 of the laws of 2005, as amended, when upon such date the 39 provisions of section two of this act shall take effect.
