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A00146 Summary:

BILL NOA00146
 
SAME ASNo Same As
 
SPONSOREichenstein
 
COSPNSRHevesi, Simon, Sayegh, Cruz, Colton, Rozic, Meeks, Taylor
 
MLTSPNSR
 
Amd §4404, Ed L
 
Prohibits the appointment of certain state, municipal or agency employees as impartial hearing officers to hear appeals of determinations regarding children with handicapping conditions.
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A00146 Actions:

BILL NOA00146
 
01/08/2025referred to education
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A00146 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A146
 
SPONSOR: Eichenstein
  TITLE OF BILL: 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   PURPOSE: The purpose of this bill is to make changes to Education Law § 4404 regarding the impartial hearing process for students with disabilities.   SUMMARY OF PROVISIONS: Section 1 of this bill states that impartial hearing officers selected by the board of education or state agency shall be selected from a list of impartial candidates who have been subjected to the impartial hearing officer training program. These officers shall not be employees of any educational agency that is involved in the education of the child, or any agency that would give rise to a conflict of interest. In addition, officers may not be an employee of the municipality where the school is located. A record of the hearing shall be available, and the hearing will be conducted according to the rules. The board of education of the school district or the state agency responsible for providing education to students with disabilities shall have the burden of proof, except in matters of tuition reimbursement. The decision of the hearing officer shall be binding upon both parties unless appealed to the state review officer. The decision of the hearing officer shall.be binding. Section 2 of this bill states that if the recommendation of the commit- tee on special education is not acceptable to the parent, or if the recommendation is not given within the time set by the commissioner, the parents will notify the Board of Education, which will appoint an impar- tial hearing officer. The officer will be selected from an acceptable list of candidates. Section 3 of this bill sets forth the effective date.   JUSTIFICATION: The number of impartial hearing requests, particularly in New York City, has risen to historic proportions resulting in a substantial backlog of cases and an inability to address disputes regarding the provision of special education services in a timely fashion as prescribed by law. This bill is designed to assure the impartiality of special education hearing officeis as measures are undertaken to address this backlog.   LEGISLATIVE HISTORY: 01/03/24: A195 - referred to Education 01/04/23: A195 referred to Education 02/23/22: A9287 - referred to Education   FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS: None to the State.   EFFECTIVE DATE: This act shall take effect immediately; provided, however, that the amendments to paragraph c of subdivision 1 of section 4404 of the educa- tion law made by section one of this act shall be subject to the expira- tion 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.
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A00146 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                           146
 
                               2025-2026 Regular Sessions
 
                   IN ASSEMBLY
 
                                       (Prefiled)
 
                                     January 8, 2025
                                       ___________
 
        Introduced by M. of A. EICHENSTEIN, HEVESI, SIMON, SAYEGH, CRUZ, COLTON,
          ROZIC,  MEEKS,  TAYLOR  --  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:
 
     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. Individuals so
     9  appointed shall not be an employee of the state  educational  agency  or
    10  the  local  educational  agency involved in the education or care of the
    11  child, or of any public agency or a person having a personal or  profes-
    12  sional  interest  that  conflicts  with  the person's objectivity in the
    13  hearing; nor may the impartial hearing officer be an employee of a muni-
    14  cipality in which the school district is located or of any of its  agen-
    15  cies  or instrumentalities; except that a city school district of a city
    16  having a population of more than one million inhabitants shall be exempt
    17  from  such  regulations  to  the  extent  it  maintains  its  rotational
    18  selection  process in effect prior to July first, nineteen hundred nine-
    19  ty-three. A record of proceedings before the impartial  hearing  officer
    20  shall  be  maintained and made available to the parties, and the hearing
    21  shall be conducted in accordance with the regulations of the commission-
    22  er. The board of education or trustees of the  school  district  or  the
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD00546-01-5

        A. 146                              2
 
     1  state  agency responsible for providing education to students with disa-
     2  bilities shall have the burden of proof, including the burden of persua-
     3  sion and burden of production, in any  such  impartial  hearing,  except
     4  that  a parent or person in parental relation seeking tuition reimburse-
     5  ment for a unilateral  parental  placement  shall  have  the  burden  of
     6  persuasion  and  burden  of  production  on  the appropriateness of such
     7  placement. The decision of the impartial hearing officer shall be  bind-
     8  ing  upon  both parties unless appealed to the state review officer. The
     9  commissioner shall establish a department training program  which  shall
    10  be  completed  to the satisfaction of the commissioner as a condition of
    11  certification. Impartial hearing officers shall have the  qualifications
    12  specified in subsection (f) of section fourteen hundred fifteen of title
    13  twenty  of  the United States code, the implementing federal regulations
    14  and the regulations of the commissioner. The commissioner shall  promul-
    15  gate  regulations  to  ensure  that  no individual employed, controlled,
    16  managed or supervised by a municipality  or  any  department  or  agency
    17  therein,  shall  serve  as  an impartial hearing officer to preside over
    18  hearings in or concerning a school district located within that  munici-
    19  pality,  no  individual employed by a school district, school or program
    20  serving students with disabilities placed by a school district committee
    21  on special education acts as an impartial hearing officer  and  that  no
    22  individual  employed  by such schools or programs serves as an impartial
    23  hearing officer for two years following the termination of such  employ-
    24  ment.  The commissioner shall promulgate regulations establishing proce-
    25  dures for the suspension or  revocation  of  impartial  hearing  officer
    26  certification  for  good cause. The commissioner shall establish maximum
    27  rates for the compensation of impartial hearing officers subject to  the
    28  approval of the director of the division of the budget.
    29    § 2. Subdivision 1 of section 4404 of the education law, as amended by
    30  section  2  of  chapter  583  of the laws of 2007, is amended to read as
    31  follows:
    32    1. If the recommendation of the committee on special education is  not
    33  acceptable  to  the  parent  or  person  in  parental  relationship of a
    34  student, or if the committee or board of education or trustees fails  to
    35  make  or effectuate such a recommendation within such periods of time as
    36  may be required by regulations of  the  commissioner,  such  parents  or
    37  persons  in parental relationship shall notify the board of education of
    38  this situation and the board shall appoint an impartial hearing  officer
    39  to  hear  the appeal and make a determination within such period of time
    40  as the commissioner by regulation shall  determine,  provided  that  the
    41  board  of  education  or  trustees  shall  offer the parent or person in
    42  parental relationship  the  option  of  mediation  pursuant  to  section
    43  forty-four hundred four-a of this article as an alternative to an impar-
    44  tial  hearing. Individuals so appointed by a board of education shall be
    45  selected from a list of available hearing officers who have successfully
    46  completed a hearing officer training program conducted by the department
    47  according to a rotation selection process prescribed in  regulations  of
    48  the  commissioner; except that a city school district of a city having a
    49  population of more than one million inhabitants  shall  be  exempt  from
    50  such  regulations  to  the  extent it maintains its rotational selection
    51  process in effect prior to July first,  nineteen  hundred  ninety-three.
    52  Individuals  so  appointed  shall not be an employee of the state educa-
    53  tional agency or the local educational agency involved in the  education
    54  or  care  of  the  child,  or  of any public agency or a person having a
    55  personal or professional  interest  that  conflicts  with  the  person's
    56  objectivity  in the hearing; nor may the impartial hearing officer be an

        A. 146                              3
 
     1  employee of a municipality in which the school district is located or of
     2  any of its agencies or instrumentalities. A record of proceedings before
     3  the hearing officer shall  be  maintained  and  made  available  to  the
     4  parties.  The  board  of education or trustees of the school district or
     5  the state agency responsible for providing education  to  students  with
     6  disabilities  shall  have  the  burden of proof, including the burden of
     7  persuasion and burden of production,  in  any  such  impartial  hearing,
     8  except  that  a  parent  or  person in parental relation seeking tuition
     9  reimbursement for a unilateral parental placement shall have the  burden
    10  of  persuasion  and  burden of production on the appropriateness of such
    11  placement. The decision of the hearing officer  shall  be  binding  upon
    12  both  parties  unless  appealed to the state review officer. The commis-
    13  sioner shall establish a department  training  program  which  shall  be
    14  completed  to  the  satisfaction  of  the commissioner as a condition of
    15  certification. The commissioner shall develop and implement  a  plan  to
    16  ensure  that  no  individual  employed  by  a school district, school or
    17  program serving students with disabilities placed by a  school  district
    18  committee  on  special  education  acts as an impartial hearing officer,
    19  that  no individual employed, controlled, managed  or  supervised  by  a
    20  municipality  or  any  department  or  agency  therein shall serve as an
    21  impartial hearing officer to preside over hearings in  or  concerning  a
    22  school  district located within that municipality and that no individual
    23  employed by such schools or programs  serves  as  an  impartial  hearing
    24  officer for two years following the termination of such employment. Such
    25  plan  shall  be  fully  implemented  no  later than July first, nineteen
    26  hundred ninety-six. The commissioner shall promulgate regulations estab-
    27  lishing procedures for the suspension or revocation of impartial hearing
    28  officer certification for good cause. The commissioner  shall  establish
    29  maximum rates for the compensation of impartial hearing officers subject
    30  to  the  approval  of  the  director  of the division of the budget. The
    31  commissioner shall promulgate regulations  establishing  procedures  and
    32  timelines  for  expedited  hearings  in cases involving: (a) review of a
    33  decision that a student with a disability's behavior was not a  manifes-
    34  tation  of such student's disability, or (b) review of an interim alter-
    35  native educational setting or other placement  to  the  extent  required
    36  under  federal law, or (c) a request by the school district for a deter-
    37  mination that maintaining  the  current  educational  placement  of  the
    38  student is substantially likely to result in injury to the student or to
    39  others.
    40    §  3.  This act shall take effect immediately; provided, however, that
    41  the amendments to paragraph c of subdivision 1 of section  4404  of  the
    42  education  law  made  by section one of this act shall be subject to the
    43  expiration and reversion of such subdivision pursuant to section  22  of
    44  chapter  352  of  the  laws of 2005, as amended, when upon such date the
    45  provisions of section two of this act shall take effect.
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