2023 New York Laws › EDN - Education › Title 6 - Special Schools and Instruction › Article 89 - Children With Disabilities. › 4404 - Appeal Procedures for Children With Disabilities.

§ 4404. Appeal  procedures for children with disabilities.  * 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, 2024
1-a. If the parent or person in parental relation of a student files a
  due  process  complaint  notice seeking an impartial due process hearing
  with respect to the evaluation, educational placement,  provision  of  a
  free  appropriate  public education to the student or in accordance with
  section thirty-six hundred  two-c  of  this  chapter  and  an  impartial
  hearing  officer  is  not  appointed  within one hundred ninety-six days
  after filing such due process complaint notice  with  the  local  school
  district,  in  accordance  with regulations promulgated pursuant to this
  section by the commissioner, an impartial hearing officer  may  then  be
  immediately  appointed  to issue an order based upon a proposed order of
  relief submitted by the parent or person in  parental  relation  of  the
  student identifying appropriate and individualized programs and services
  for  the  student.  School  districts  subject to this subdivision shall
  annually report, on a form prescribed by the commissioner, on the number
  of complaints  that  seek  this  relief,  the  relief  sought,  and  the
  resolution  of  such  complaints  to the governor, the commissioner, the
  temporary president of the senate, the  speaker  of  the  assembly,  the
  chair of the senate education committee, the chair of the senate city of
  New  York  education  committee  and the chair of the assembly education
  committee.
2. 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  disability,  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, 2024
4.  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, 2024
5.  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.