Relates to the burden of proof for appeal procedures for children with handicapping conditions; shifts the burden to the parent or person in parental relationship.
STATE OF NEW YORK
________________________________________________________________________
5073
2025-2026 Regular Sessions
IN SENATE
February 18, 2025
___________
Introduced by Sen. GRIFFO -- read twice and ordered printed, and when
printed to be committed to the Committee on Disabilities
AN ACT to amend the education law, in relation to the burden of proof
for appeal procedures for 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; except that a
9 city school district of a city having a population of more than one
10 million inhabitants shall be exempt from such regulations to the extent
11 it maintains its rotational selection process in effect prior to July
12 first, nineteen hundred ninety-three. A record of proceedings before the
13 impartial hearing officer shall be maintained and made available to the
14 parties, and the hearing shall be conducted in accordance with the regu-
15 lations of the commissioner. The [board of education or trustees of the
16 school district or the state agency responsible for providing education
17 to students with disabilities] parent or person in parental relationship
18 shall have the burden of proof, including the burden of persuasion and
19 burden of production, in any such impartial hearing[, except that a
20 parent or person in parental relation seeking tuition reimbursement for
21 a unilateral parental placement shall have the burden of persuasion and
22 burden of production on the appropriateness of such placement]. The
23 decision of the impartial hearing officer shall be binding upon both
24 parties unless appealed to the state review officer. The commissioner
25 shall establish a department training program which shall be completed
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD09062-01-5
S. 5073 2
1 to the satisfaction of the commissioner as a condition of certification.
2 Impartial hearing officers shall have the qualifications specified in
3 subsection (f) of section fourteen hundred fifteen of title twenty of
4 the United States code, the implementing federal regulations and the
5 regulations of the commissioner. The commissioner shall promulgate regu-
6 lations to ensure that no individual employed by a school district,
7 school or program serving students with disabilities placed by a school
8 district committee on special education acts as an impartial hearing
9 officer and that no individual employed by such schools or programs
10 serves as an impartial hearing officer for two years following the
11 termination of such employment. The commissioner shall promulgate regu-
12 lations establishing procedures for the suspension or revocation of
13 impartial hearing officer certification for good cause. The commissioner
14 shall establish maximum rates for the compensation of impartial hearing
15 officers subject to the approval of the director of the division of the
16 budget.
17 § 2. Subdivision 1 of section 4404 of the education law, as amended by
18 section 2 of chapter 583 of the laws of 2007, is amended to read as
19 follows:
20 1. If the recommendation of the committee on special education is not
21 acceptable to the parent or person in parental relationship of a
22 student, or if the committee or board of education or trustees fails to
23 make or effectuate such a recommendation within such periods of time as
24 may be required by regulations of the commissioner, such parents or
25 persons in parental relationship shall notify the board of education of
26 this situation and the board shall appoint an impartial hearing officer
27 to hear the appeal and make a determination within such period of time
28 as the commissioner by regulation shall determine, provided that the
29 board of education or trustees shall offer the parent or person in
30 parental relationship the option of mediation pursuant to section
31 forty-four hundred four-a of this article as an alternative to an impar-
32 tial hearing. Individuals so appointed by a board of education shall be
33 selected from a list of available hearing officers who have successfully
34 completed a hearing officer training program conducted by the department
35 according to a rotation selection process prescribed in regulations of
36 the commissioner; except that a city school district of a city having a
37 population of more than one million inhabitants shall be exempt from
38 such regulations to the extent it maintains its rotational selection
39 process in effect prior to July first, nineteen hundred ninety-three. A
40 record of proceedings before the hearing officer shall be maintained and
41 made available to the parties. The [board of education or trustees of
42 the school district or the state agency responsible for providing educa-
43 tion to students with disabilities] parent or person in parental
44 relationship shall have the burden of proof, including the burden of
45 persuasion and burden of production, in any such impartial hearing[,
46 except that a parent or person in parental relation seeking tuition
47 reimbursement for a unilateral parental placement shall have the burden
48 of persuasion and burden of production on the appropriateness of such
49 placement]. The decision of the hearing officer shall be binding upon
50 both parties unless appealed to the state review officer. The commis-
51 sioner shall establish a department training program which shall be
52 completed to the satisfaction of the commissioner as a condition of
53 certification. The commissioner shall develop and implement a plan to
54 ensure that no individual employed by a school district, school or
55 program serving students with disabilities placed by a school district
56 committee on special education acts as an impartial hearing officer and
S. 5073 3
1 that no individual employed by such schools or programs serves as an
2 impartial hearing officer for two years following the termination of
3 such employment. Such plan shall be fully implemented no later than July
4 first, nineteen hundred ninety-six. The commissioner shall promulgate
5 regulations establishing procedures for the suspension or revocation of
6 impartial hearing officer certification for good cause. The commissioner
7 shall establish maximum rates for the compensation of impartial hearing
8 officers subject to the approval of the director of the division of the
9 budget. The commissioner shall promulgate regulations establishing
10 procedures and timelines for expedited hearings in cases involving: (a)
11 review of a decision that a student with a disability's behavior was not
12 a manifestation of such student's disability, or (b) review of an inter-
13 im alternative educational setting or other placement to the extent
14 required under federal law, or (c) a request by the school district for
15 a determination that maintaining the current educational placement of
16 the student is substantially likely to result in injury to the student
17 or to others.
18 § 3. This act shall take effect immediately; provided, however, that
19 the amendments to paragraph c of subdivision 1 of section 4404 of the
20 education law made by section one of this act shall be subject to the
21 expiration and reversion of such subdivision pursuant to section 22 of
22 chapter 352 of the laws of 2005, as amended, when upon such date the
23 provisions of section two of this act shall take effect.
