§ 3208-A — Special proceeding to determine physical capacity of student to participate in athletic programs

§ 3208-a. Special proceeding to determine physical capacity of student\nto participate in athletic programs. 1. Upon a school district's\ndetermination that a student shall not be permitted to participate in an\nathletic program by reason of a physical impairment, based on a medical\nexamination conducted by the school physician, the student may commence\na special proceeding in the supreme court pursuant to the provisions of\narticle four of the civil practice law and rules to enjoin the school\ndistrict from prohibiting his participation. Such special proceeding\nmay be brought in the county in which the student resides or in the\ncounty in which the school district is located.\n 2. The petition in the proceeding shall be a verified petition of a\nparent or guardian of the student. The petition shall have annexed\naffidavits of at least two licensed physicians setting forth that in\ntheir opinion the student is physically capable of participating in an\nathletic program, that participation would be reasonably safe, and any\nspecial or preventive measures or devices needed to protect the student.\n 3. The court shall grant such petition if it is satisfied that it is\nin the best interest of the student to participate in an athletic\nprogram and that it is reasonably safe for him to do so.\n 4. No school district shall be held liable for an injury sustained by\na student granted an order under this section provided such injury is\nincurred during such student's actual participation in an athletic\nprogram and, provided further, that such injury is attributable to the\nphysical impairment for which such court order was obtained.\n 5. Unless specifically prohibited by the court, an order granted\npursuant to the provisions of this section shall be considered valid and\nsufficient for subsequent years, provided that the student has not\nchanged athletic programs and, further, that two licensed physicians set\nforth current affidavits that, in their opinion, the student's physical\nimpairment has not changed since the time of the original court order.\n 6. In no event shall a successful petitioner be entitled to costs in\nany proceeding brought pursuant to this section.\n 7. The school district shall not be responsible for providing or bear\nthe cost of, any special or preventive measures or devices needed to\nprotect the student unless such special or preventive measures or\ndevices are contained in a student's individual education plan\nrecommended by the school district committee on the handicapped and such\nstudent is a child with a handicapping condition, as defined in section\nforty-four hundred one of this chapter.\n 8. A physically impaired child eligible to commence a special\nproceeding as provided by this section shall be defined as any child\ndetermined by a school physician as ineligible for participation on the\nbasis of the regulations of the state education department, the American\nMedical Association Guide for Medical Evaluation for Candidates for\nSchool Sports, or by any standard established by the school district\ninvolved.\n 9. An athletic program for the purpose of this section shall include\nintramural activities, inter-school activities, extramural activities,\nand organized practice as defined by section 135.1 by the commissioner\nof education's regulations.\n