A 6636: 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 ________________________________________________________________________ 6636 2025-2026 Regular Sessions  IN ASSEMBLY March 6, 2025 ___________ Introduced by M. of A. BUTTENSCHON -- read once and referred to the Committee on Education 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 
 A. 6636 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 
 A. 6636 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.