Hevesi, 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.
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.
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.