§ 4404 — Appeal procedures for children with disabilities

New York § 4404

• Jurisdiction: New York
• Law EDN: Education
• Title 6: Special Schools and Instruction
• Art. 89: Children With Disabilities

Text

§ 4404. Appeal procedures for children with disabilities. * 1. a. If\nthe parent or person in parental relation of a student, the board of\neducation or trustees of a school district or a state agency responsible\nfor providing education to students with disabilities presents a\ncomplaint with respect to any matter relating to the identification,\nevaluation or educational placement of the student or the provision of a\nfree appropriate public education to the student or a manifestation\ndetermination or other matter relating to placement upon discipline of a\nstudent with a disability that may be the subject of an impartial\nhearing pursuant to subsection (k) of section fourteen hundred fifteen\nof title twenty of the United States code and the implementing federal\nregulations, and the party presenting the complaint or their attorney\nprovides a due process complaint notice in accordance with federal law\nand regulations and such complaint sets forth an alleged violation that\noccurred not more than two years before the date the parent or public\nagency knew or should have known about the alleged action that forms the\nbasis for the complaint, the board or agency shall appoint an impartial\nhearing officer to review the due process complaint notice when\nchallenged and, if the matter is not resolved in a resolution session\nthat has been convened as required by federal law, to preside over an\nimpartial due process hearing and make a determination within such\nperiod of time as the commissioner by regulation shall determine,\nprovided that the board of education or trustees shall offer the parent\nor person in parental relation the option of mediation pursuant to\nsection forty-four hundred four-a of this article as an alternative to\nan impartial hearing. Where the parent or person in parental relation or\na school district or public agency presents a complaint, the school\ndistrict or public agency responsible for appointing the impartial\nhearing officer shall provide the parent or person in parental relation\nwith a procedural safeguards notice as required pursuant to subsection\n(d) of section fourteen hundred fifteen of title twenty of the United\nStates code and the implementing federal regulations. Notwithstanding\nany provision of this subdivision to the contrary, the time limitation\non presenting a complaint shall not apply to a parent or person in\nparental relation to the student if the parent or person in parental\nrelation was prevented from requesting the impartial hearing due to\nspecific misrepresentations by the school district or other public\nagency that it had resolved the problem forming the basis of the\ncomplaint or due to the school district's or other public agency's\nwithholding of information from the parent or person in parental\nrelation that was required under federal law to be provided. Nothing in\nthis subdivision shall be construed to authorize the board of education\nor trustees to bring an impartial hearing to override the refusal of a\nparent or person in parental relation to consent where a local\neducational agency is prohibited by federal law from initiating such a\nhearing.\n b. If a resolution session resolves the complaint, the parties shall\nexecute a legally binding agreement that is signed by both the parent or\nperson in parental relation and a representative of the school district\nor public agency who has the authority to bind such district or agency\nand shall be enforceable in any state court of competent jurisdiction or\na United States district court. A party may void such agreement within\nthree business days of the agreement's execution.\n c. Individuals so appointed by a board of education or a state agency\nshall be selected from a list of available impartial hearing officers\nwho have successfully completed an impartial hearing officer training\nprogram conducted by the department according to a rotation selection\nprocess prescribed in regulations of the commissioner; except that a\ncity school district of a city having a population of more than one\nmillion inhabitants shall be exempt from such regulations to the extent\nit maintains its rotational selection process in effect prior to July\nfirst, nineteen hundred ninety-three. A record of proceedings before the\nimpartial hearing officer shall be maintained and made available to the\nparties, and the hearing shall be conducted in accordance with the\nregulations of the commissioner. The board of education or trustees of\nthe school district or the state agency responsible for providing\neducation to students with disabilities shall have the burden of proof,\nincluding the burden of persuasion and burden of production, in any such\nimpartial hearing, except that a parent or person in parental relation\nseeking tuition reimbursement for a unilateral parental placement shall\nhave the burden of persuasion and burden of production on the\nappropriateness of such placement. The decision of the impartial hearing\nofficer shall be binding upon both parties unless appealed to the state\nreview officer. The commissioner shall establish a department training\nprogram which shall be completed to the satisfaction of the commissioner\nas a condition of certification. Impartial hearing officers shall have\nthe qualifications specified in subsection (f) of section fourteen\nhundred fifteen of title twenty of the United States code, the\nimplementing federal regulations and the regulations of the\ncommissioner. The commissioner shall promulgate regulations to ensure\nthat no individual employed by a school district, school or program\nserving students with disabilities placed by a school district committee\non special education acts as an impartial hearing officer and that no\nindividual employed by such schools or programs serves as an impartial\nhearing officer for two years following the termination of such\nemployment. The commissioner shall promulgate regulations establishing\nprocedures for the suspension or revocation of impartial hearing officer\ncertification for good cause. The commissioner shall establish maximum\nrates for the compensation of impartial hearing officers subject to the\napproval of the director of the division of the budget.\n d. The commissioner shall promulgate regulations establishing\nprocedures and timelines for expedited hearings in cases involving: (1)\nreview of a decision that a student with a disability's behavior was not\na manifestation of such student's disability, or (2) review of an\ninterim alternative educational setting or other placement to the extent\nrequired under federal law, or (3) a request by the school district for\na determination that maintaining the current educational placement of\nthe student is substantially likely to result in injury to the student\nor to others.\n * NB Effective until June 30, 2027\n * 1. If the recommendation of the committee on special education is\nnot acceptable to the parent or person in parental relationship of a\nstudent, or if the committee or board of education or trustees fails to\nmake or effectuate such a recommendation within such periods of time as\nmay be required by regulations of the commissioner, such parents or\npersons in parental relationship shall notify the board of education of\nthis situation and the board shall appoint an impartial hearing officer\nto hear the appeal and make a determination within such period of time\nas the commissioner by regulation shall determine, provided that the\nboard of education or trustees shall offer the parent or person in\nparental relationship the option of mediation pursuant to section\nforty-four hundred four-a of this article as an alternative to an\nimpartial hearing. Individuals so appointed by a board of education\nshall be selected from a list of available hearing officers who have\nsuccessfully completed a hearing officer training program conducted by\nthe department according to a rotation selection process prescribed in\nregulations of the commissioner; except that a city school district of a\ncity having a population of more than one million inhabitants shall be\nexempt from such regulations to the extent it maintains its rotational\nselection process in effect prior to July first, nineteen hundred\nninety-three. A record of proceedings before the hearing officer shall\nbe maintained and made available to the parties. The board of education\nor trustees of the school district or the state agency responsible for\nproviding education to students with disabilities shall have the burden\nof proof, including the burden of persuasion and burden of production,\nin any such impartial hearing, except that a parent or person in\nparental relation seeking tuition reimbursement for a unilateral\nparental placement shall have the burden of persuasion and burden of\nproduction on the appropriateness of such placement. The decision of the\nhearing officer shall be binding upon both parties unless appealed to\nthe state review officer. The commissioner shall establish a department\ntraining program which shall be completed to the satisfaction of the\ncommissioner as a condition of certification. The commissioner shall\ndevelop and implement a plan to ensure that no individual employed by a\nschool district, school or program serving students with disabilities\nplaced by a school district committee on special education acts as an\nimpartial hearing officer and that no individual employed by such\nschools or programs serves as an impartial hearing officer for two years\nfollowing the termination of such employment. Such plan shall be fully\nimplemented no later than July first, nineteen hundred ninety-six. The\ncommissioner shall promulgate regulations establishing procedures for\nthe suspension or revocation of impartial hearing officer certification\nfor good cause. The commissioner shall establish maximum rates for the\ncompensation of impartial hearing officers subject to the approval of\nthe director of the division of the budget. The commissioner shall\npromulgate regulations establishing procedures and timelines for\nexpedited hearings in cases involving: (a) review of a decision that a\nstudent with a disability's behavior was not a manifestation of such\nstudent's disability, or (b) review of an interim alternative\neducational setting or other placement to the extent required under\nfederal law, or (c) a request by the school district for a determination\nthat maintaining the current educational placement of the student is\nsubstantially likely to result in injury to the student or to others.\n * NB Effective June 30, 2027\n 1-a. If the parent or person in parental relation of a student files a\ndue process complaint notice seeking an impartial due process hearing\nwith respect to the evaluation, educational placement, provision of a\nfree appropriate public education to the student or in accordance with\nsection thirty-six hundred two-c of this chapter and an impartial\nhearing officer is not appointed within one hundred ninety-six days\nafter filing such due process complaint notice with the local school\ndistrict, in accordance with regulations promulgated pursuant to this\nsection by the commissioner, an impartial hearing officer may then be\nimmediately appointed to issue an order based upon a proposed order of\nrelief submitted by the parent or person in parental relation of the\nstudent identifying appropriate and individualized programs and services\nfor the student. School districts subject to this subdivision shall\nannually report, on a form prescribed by the commissioner, on the number\nof complaints that seek this relief, the relief sought, and the\nresolution of such complaints to the governor, the commissioner, the\ntemporary president of the senate, the speaker of the assembly, the\nchair of the senate education committee, the chair of the senate city of\nNew York education committee and the chair of the assembly education\ncommittee.\n 2. Review by state review officer. A state review officer of the\neducation department shall review and may modify, in such cases and to\nthe extent that the review officer deems necessary, in order to properly\neffectuate the purposes of this article, any determination of the\nimpartial hearing officer relating to the determination of the nature of\na child's disability, selection of an appropriate special education\nprogram or service and the failure to provide such program and require\nsuch board to comply with the provisions of such modification. The\ncommissioner shall adopt regulations governing the practice and\nprocedure in such appeals to the state review officer; provided,\nhowever, that in no event shall any fee or charge whatsoever be imposed\nfor any appeal taken pursuant to this subdivision. The state review\nofficer is empowered to make all orders which are proper or necessary to\ngive effect to the decision of the review officer.\n 3. Review of the determination of a state review officer regarding\nchildren with disabilities.\n * a. Any final determination or order of a state review officer\nrendered pursuant to subdivision two of this section may only be\nreviewed in a proceeding brought in the supreme court pursuant to\narticle four of the civil practice law and rules, and paragraph b of\nthis subdivision, or in United States district court. Any such\nproceeding shall be commenced within four months after the determination\nto be reviewed becomes final and binding on the parties.\n * NB Effective until June 30, 2027\n * a. Any final determination or order of a state review officer\nrendered pursuant to subdivision two of this section may only be\nreviewed in a proceeding brought in the supreme court pursuant to\narticle four of the civil practice law and rules, and paragraph b of\nthis subdivision, or in United States district court.\n * NB Effective June 30, 2027\n * b. In any such proceeding under article four of the civil practice\nlaw and rules, the court may grant any relief authorized by the\nprovisions of rule four hundred eleven of such law and rules, which\nshall include any relief available in a civil action under section six\nhundred fifteen of the individuals with disabilities education act (20\nU.S.C. section 1415) and also may, in its discretion remand the\nproceedings to the state review officer for further consideration upon a\nfinding that any relevant and material evidence is then available which\nwas not previously considered by the state review officer. Such\nproceeding shall be deemed a proceeding against a body or officer for\npurposes of section five hundred six of the civil practice law and\nrules. The court shall receive the records of the administrative\nproceedings, shall hear additional evidence at the request of a party,\nand basing its decision on the preponderance of the evidence, shall\ngrant the relief that the court determines to be appropriate.\n * NB Effective until June 30, 2027\n * b. In any such proceeding under article four of the civil practice\nlaw and rules, the court may grant any relief authorized by the\nprovisions of rule four hundred eleven of such law and rules, which\nshall include any relief available in a civil action under section six\nhundred fifteen of the individuals with disabilities education act (20\nU.S.C. section 1415) and also may, in its discretion remand the\nproceedings to the state review officer for further consideration upon a\nfinding that any relevant and material evidence is then available which\nwas not previously considered by the state review officer. Such\nproceeding shall be deemed a proceeding against a body or officer for\npurposes of sections two hundred seventeen and five hundred six of the\ncivil practice law and rules. The court shall receive the records of the\nadministrative proceedings, shall hear additional evidence at the\nrequest of a party, and basing its decision on the preponderance of the\nevidence, shall grant the relief that the court determines to be\nappropriate.\n * NB Effective June 30, 2027\n 4. a. During the pendency of any proceedings conducted pursuant to\nthis section, other than a proceeding subject to paragraph b of this\nsubdivision, and during the initial identification, evaluation and\nplacement procedure pursuant to this section and during the initial\nidentification, evaluation and placement procedure pursuant to section\nforty-four hundred two of this article, unless the local school district\nand the parents or persons in parental relationship otherwise agree, the\nstudent shall remain in the then current educational placement of such\nstudent, or, if applying for initial admission to a public school, shall\nbe placed in the public school program until all such proceedings have\nbeen completed.\n * b. For students with disabilities placed in an interim alternative\neducational setting pursuant to clause (iv) or (vii) of subparagraph\nthree of paragraph g of subdivision three of section thirty-two hundred\nfourteen of this chapter, during the pendency of proceedings conducted\npursuant to this section in which the parents or persons in parental\nrelation challenge the interim alternative educational setting or a\nmanifestation determination, the student shall remain in the interim\nalternative educational setting pending the decision of the impartial\nhearing officer or until expiration of the time period of the student's\nplacement in an interim alternative educational setting, whichever comes\nfirst, unless the local school district and the parents or persons in\nparental relation otherwise agree. After the expiration of such\nplacement in an interim alternative educational setting, if the school\ndistrict proposes to change the student's placement, during the pendency\nof any proceedings to challenge the proposed change in placement, the\nstudent shall return to and remain in the current educational placement,\nwhich shall be the student's placement prior to the interim alternative\neducational setting, unless the local school district and the parents or\npersons in parental relation otherwise agree or unless as a result of a\ndecision by an impartial hearing officer in an expedited hearing, the\ninterim alternative educational setting is extended for a period not to\nexceed forty-five school days based on a determination that maintaining\nthe current educational placement of the student is substantially likely\nto result in injury to the student or to others. Such procedure for\nextension of an interim alternative educational setting may be repeated\nas necessary.\n * NB Effective until June 30, 2027\n * b. For students with disabilities placed in an interim alternative\neducational setting pursuant to clause (iv) or (vii) of subparagraph\nthree of paragraph g of subdivision three of section thirty-two hundred\nfourteen of this chapter, during the pendency of proceedings conducted\npursuant to this section in which the parents or persons in parental\nrelationship challenge the interim alternative educational setting or a\nmanifestation determination, the student shall remain in the interim\nalternative educational setting pending the decision of the hearing\nofficer or until expiration of the time period of the student's interim\nalternative placement, whichever comes first, unless the local school\ndistrict and the parents or persons in parental relationship otherwise\nagree. After the expiration of such interim alternative educational\nplacement, if the school district proposes to change the student's\nplacement, during the pendency of any proceedings to challenge the\nproposed change in placement, the student shall return to and remain in\nthe current educational placement, which shall be the student's\nplacement prior to the interim alternative educational setting, unless\nthe local school district and the parents or persons in parental\nrelationship otherwise agree or unless as a result of a decision by an\nimpartial hearing officer in an expedited hearing, the interim\nalternative educational setting is extended or another appropriate\nplacement is ordered for a period not to exceed forty-five days based on\na determination that maintaining the current educational placement of\nthe student is substantially likely to result in injury to the student\nor to others. Such procedure for extension of an interim alternative\neducational setting may be repeated as necessary.\n * NB Effective June 30, 2027\n 5. For purposes of this section, to the extent required by federal\nlaw, a student presumed to have a disability for discipline purposes\nshall be deemed to be a student with a disability and the parents or\npersons in parental relationship of a student presumed to have a\ndisability for discipline purposes shall be afforded the procedural\nrights of the parents or persons in parental relationship of a student\nwith a disability. Nothing in this section shall be construed to confer\nupon a student presumed to have a disability for disciplinary purposes\ngreater procedural rights than such student would have under the\nprovisions of section six hundred fifteen of the individuals with\ndisabilities education act.\n