NY Educ L § 4404 (2021)
2021 New York Laws EDN - Education Title 6 - Special Schools and Instruction Article 89 - Children With Handicapping Conditions 4404 - Appeal Procedures for Children With Handicapping Conditions.

§ 4404. Appeal  procedures  for children with handicapping conditions.   * 1. a. If the parent or person in parental relation of a  student,  the   board  of  education  or trustees of a school district or a state agency   responsible  for  providing  education  to  students  with  disabilities   presents  a  complaint  with  respect  to  any  matter  relating  to the   identification, evaluation or educational placement of  the  student  or   the provision of a free appropriate public education to the student or a   manifestation  determination  or other matter relating to placement upon   discipline of a student with a disability that may be the subject of  an   impartial hearing pursuant to subsection (k) of section fourteen hundred   fifteen  of  title twenty of the United States code and the implementing   federal regulations, and the party presenting  the  complaint  or  their   attorney  provides  a  due  process  complaint notice in accordance with   federal law and regulations and such complaint  sets  forth  an  alleged   violation  that  occurred  not  more  than two years before the date the   parent or public agency knew or should  have  known  about  the  alleged   action that forms the basis for the complaint, the board or agency shall   appoint an impartial hearing officer to review the due process complaint   notice  when  challenged  and,  if  the  matter  is  not  resolved  in a   resolution session that has been convened as required by federal law, to   preside over an impartial due process hearing 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  relation  the option of mediation   pursuant to section forty-four hundred four-a  of  this  article  as  an   alternative  to  an  impartial  hearing.  Where  the parent or person in   parental relation or a school  district  or  public  agency  presents  a   complaint,   the  school  district  or  public  agency  responsible  for   appointing the impartial hearing officer shall  provide  the  parent  or   person  in  parental  relation  with  a  procedural safeguards notice as   required pursuant to subsection (d) of section fourteen hundred  fifteen   of  title  twenty of the United States code and the implementing federal   regulations. Notwithstanding any provision of this  subdivision  to  the   contrary,  the time limitation on presenting a complaint shall not apply   to a parent or person in parental relation to the student if the  parent   or  person  in  parental  relation  was  prevented  from  requesting the   impartial hearing due  to  specific  misrepresentations  by  the  school   district or other public agency that it had resolved the problem forming   the  basis  of  the  complaint  or due to the school district's or other   public agency's withholding of information from the parent or person  in   parental  relation  that  was required under federal law to be provided.   Nothing in this subdivision shall be construed to authorize the board of   education or trustees to bring an  impartial  hearing  to  override  the   refusal  of  a  parent or person in parental relation to consent where a   local educational agency is prohibited by federal  law  from  initiating   such a hearing.b.  If  a resolution session resolves the complaint, the parties shall   execute a legally binding agreement that is signed by both the parent or   person in parental relation and a representative of the school  district   or  public  agency who has the authority to bind such district or agency   and shall be enforceable in any state court of competent jurisdiction or   a United States district court. A party may void such  agreement  within   three business days of the agreement's execution.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; 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. 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 commissioner. 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 impartial hearing   officer  shall be binding 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 promulgate regulations 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 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. The commissioner shall promulgate  regulations  establishing   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.d.   The   commissioner   shall  promulgate  regulations  establishing   procedures and timelines for expedited hearings in cases involving:  (1)   review of a decision that a student with a disability's behavior was not   a  manifestation  of  such  student's  disability,  or  (2) review of an   interim alternative educational setting or other placement to the extent   required under federal law, or (3) a request by the school district  for   a  determination  that  maintaining the current educational placement of   the student is substantially likely to result in injury to  the  student   or to others.* NB Effective until June 30, 2024* 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   impartial  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. 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 commissioner 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  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  establishing  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 manifestation of such   student's  disability,  or  (b)  review  of   an   interim   alternative   educational  setting  or  other  placement  to the extent required under   federal law, or (c) a request by the school district for a determination   that maintaining the current educational placement  of  the  student  is   substantially likely to result in injury to the student or to others.* NB Effective June 30, 20242.  Review  by  state  review  officer.  A state review officer of the   education department shall review and may modify, in such cases  and  to   the extent that the review officer deems necessary, in order to properly   effectuate  the  purposes  of  this  article,  any  determination of the   impartial hearing officer relating to the determination of the nature of   a child's handicapping condition, selection of  an  appropriate  special   education program or service and the failure to provide such program and   require  such  board to comply with the provisions of such modification.   The commissioner shall adopt  regulations  governing  the  practice  and   procedure  in  such  appeals  to  the  state  review  officer; provided,   however, that in no event shall any fee or charge whatsoever be  imposed   for  any  appeal  taken  pursuant  to this subdivision. The state review   officer is empowered to make all orders which are proper or necessary to   give effect to the decision of the review officer.3. Review of the determination of a  state  review  officer  regarding   children with disabilities.* a.  Any  final  determination  or  order  of  a state review officer   rendered pursuant to  subdivision  two  of  this  section  may  only  be   reviewed  in  a  proceeding  brought  in  the  supreme court pursuant to   article four of the civil practice law and rules,  and  paragraph  b  of    this   subdivision,  or  in  United  States  district  court.  Any  such   proceeding shall be commenced within four months after the determination   to be reviewed becomes final and binding on the parties.* NB Effective until June 30, 2024* a.  Any  final  determination  or  order  of  a state review officer   rendered pursuant to  subdivision  two  of  this  section  may  only  be   reviewed  in  a  proceeding  brought  in  the  supreme court pursuant to   article four of the civil practice law and rules,  and  paragraph  b  of   this subdivision, or in United States district court.* NB Effective June 30, 2024* b.  In  any such proceeding under article four of the civil practice   law and rules,  the  court  may  grant  any  relief  authorized  by  the   provisions  of  rule  four  hundred  eleven of such law and rules, which   shall include any relief available in a civil action under  section  six   hundred  fifteen  of the individuals with disabilities education act (20   U.S.C. section  1415)  and  also  may,  in  its  discretion  remand  the   proceedings to the state review officer for further consideration upon a   finding  that any relevant and material evidence is then available which   was  not  previously  considered  by  the  state  review  officer.  Such   proceeding  shall  be  deemed a proceeding against a body or officer for   purposes of section five hundred six  of  the  civil  practice  law  and   rules.  The  court  shall  receive  the  records  of  the administrative   proceedings, shall hear additional evidence at the request of  a  party,   and  basing  its  decision  on  the preponderance of the evidence, shall   grant the relief that the court determines to be appropriate.* NB Effective until June 30, 2024* b. In any such proceeding under article four of the  civil  practice   law  and  rules,  the  court  may  grant  any  relief  authorized by the   provisions of rule four hundred eleven of  such  law  and  rules,  which   shall  include  any relief available in a civil action under section six   hundred fifteen of the individuals with disabilities education  act  (20   U.S.C.  section  1415)  and  also  may,  in  its  discretion  remand the   proceedings to the state review officer for further consideration upon a   finding that any relevant and material evidence is then available  which   was  not  previously  considered  by  the  state  review  officer.  Such   proceeding shall be deemed a proceeding against a body  or  officer  for   purposes  of  sections two hundred seventeen and five hundred six of the   civil practice law and rules. The court shall receive the records of the   administrative  proceedings,  shall  hear  additional  evidence  at  the   request  of a party, and basing its decision on the preponderance of the   evidence, shall grant  the  relief  that  the  court  determines  to  be   appropriate.* NB Effective June 30, 20244.  a.  During  the  pendency of any proceedings conducted pursuant to   this section, other than a proceeding subject to  paragraph  b  of  this   subdivision,  and  during  the  initial  identification,  evaluation and   placement procedure pursuant to this  section  and  during  the  initial   identification,  evaluation  and placement procedure pursuant to section   forty-four hundred two of this article, unless the local school district   and the parents or persons in parental relationship otherwise agree, the   student shall remain in the then current educational placement  of  such   student, or, if applying for initial admission to a public school, shall   be  placed  in the public school program until all such proceedings have   been completed.* b. For students with disabilities placed in an  interim  alternative   educational  setting  pursuant  to  clause (iv) or (vii) of subparagraph   three of paragraph g of subdivision three of section thirty-two  hundred   fourteen  of  this chapter, during the pendency of proceedings conducted    pursuant to this section in which the parents  or  persons  in  parental   relation  challenge  the  interim  alternative  educational setting or a   manifestation determination, the student shall  remain  in  the  interim   alternative  educational  setting  pending the decision of the impartial   hearing officer or until expiration of the time period of the  student's   placement in an interim alternative educational setting, whichever comes   first,  unless  the  local school district and the parents or persons in   parental  relation  otherwise  agree.  After  the  expiration  of   such   placement  in  an interim alternative educational setting, if the school   district proposes to change the student's placement, during the pendency   of any proceedings to challenge the proposed change  in  placement,  the   student shall return to and remain in the current educational placement,   which  shall be the student's placement prior to the interim alternative   educational setting, unless the local school district and the parents or   persons in parental relation otherwise agree or unless as a result of  a   decision  by  an  impartial hearing officer in an expedited hearing, the   interim alternative educational setting is extended for a period not  to   exceed  forty-five school days based on a determination that maintaining   the current educational placement of the student is substantially likely   to result in injury to the student or  to  others.  Such  procedure  for   extension  of an interim alternative educational setting may be repeated   as necessary.* NB Effective until June 30, 2024* b. For students with disabilities placed in an  interim  alternative   educational  setting  pursuant  to  clause (iv) or (vii) of subparagraph   three of paragraph g of subdivision three of section thirty-two  hundred   fourteen  of  this chapter, during the pendency of proceedings conducted   pursuant to this section in which the parents  or  persons  in  parental   relationship  challenge the interim alternative educational setting or a   manifestation determination, the student shall  remain  in  the  interim   alternative  educational  setting  pending  the  decision of the hearing   officer or until expiration of the time period of the student's  interim   alternative  placement,  whichever  comes first, unless the local school   district and the parents or persons in parental  relationship  otherwise   agree.  After  the  expiration  of  such interim alternative educational   placement, if the school  district  proposes  to  change  the  student's   placement,  during  the  pendency  of  any  proceedings to challenge the   proposed change in placement, the student shall return to and remain  in   the   current  educational  placement,  which  shall  be  the  student's   placement prior to the interim alternative educational  setting,  unless   the  local  school  district  and  the  parents  or  persons in parental   relationship otherwise agree or unless as a result of a decision  by  an   impartial   hearing   officer  in  an  expedited  hearing,  the  interim   alternative educational  setting  is  extended  or  another  appropriate   placement is ordered for a period not to exceed forty-five days based on   a  determination  that  maintaining the current educational placement of   the student is substantially likely to result in injury to  the  student   or  to  others.  Such  procedure for extension of an interim alternative   educational setting may be repeated as necessary.* NB Effective June 30, 20245. For purposes of this section, to the  extent  required  by  federal   law,  a  student  presumed  to have a disability for discipline purposes   shall be deemed to be a student with a disability  and  the  parents  or   persons  in  parental  relationship  of  a  student  presumed  to have a   disability for discipline purposes  shall  be  afforded  the  procedural   rights  of  the parents or persons in parental relationship of a student   with a disability. Nothing in this section shall be construed to  confer   upon  a  student presumed to have a disability for disciplinary purposes    greater procedural  rights  than  such  student  would  have  under  the   provisions  of  section  six  hundred  fifteen  of  the individuals with   disabilities education act.