A 146: Prohibits the appointment of certain state, municipal or agency employees as impartial hearing officers to hear appeals of determinations regarding children with handicapping conditions.

  
  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.