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A07943 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          7943
 
                               2021-2022 Regular Sessions
 
                   IN ASSEMBLY
 
                                      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:
 
     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  city
    11  school  district  of a city having a population of more than one million
    12  inhabitants shall be exempt from such regulations to the extent it main-
    13  tains its rotational selection process in effect prior  to  July  first,
    14  nineteen  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.
                                                                   LBD11755-01-1

        A. 7943                             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 from
    56  such regulations to the extent it  maintains  its  rotational  selection

        A. 7943                             3

     1  process  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  by

        A. 7943                             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 against

        A. 7943                             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.
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