N.Y. Education Law § 4404: Appeal procedures for children with disabilities

§ 4404. Appeal procedures for children with disabilities. * 1. a. If

the parent or person in parental relation of a student, the board of

education or trustees of a school district or a state agency responsible

for providing education to students with disabilities presents a

complaint with respect to any matter relating to the identification,

evaluation or educational placement of the student or the provision of a

free appropriate public education to the student or a manifestation

determination or other matter relating to placement upon discipline of a

student with a disability that may be the subject of an impartial

hearing pursuant to subsection (k) of section fourteen hundred fifteen

of title twenty of the United States code and the implementing federal

regulations, and the party presenting the complaint or their attorney

provides a due process complaint notice in accordance with federal law

and regulations and such complaint sets forth an alleged violation that

occurred not more than two years before the date the parent or public

agency knew or should have known about the alleged action that forms the

basis for the complaint, the board or agency shall appoint an impartial

hearing officer to review the due process complaint notice when

challenged and, if the matter is not resolved in a resolution session

that has been convened as required by federal law, to preside over an

impartial due process hearing and make a determination within such

period of time as the commissioner by regulation shall determine,

provided that the board of education or trustees shall offer the parent

or person in parental relation the option of mediation pursuant to

section forty-four hundred four-a of this article as an alternative to

an impartial hearing. Where the parent or person in parental relation or

a school district or public agency presents a complaint, the school

district or public agency responsible for appointing the impartial

hearing officer shall provide the parent or person in parental relation

with a procedural safeguards notice as required pursuant to subsection

(d) of section fourteen hundred fifteen of title twenty of the United

States code and the implementing federal regulations. Notwithstanding

any provision of this subdivision to the contrary, the time limitation

on presenting a complaint shall not apply to a parent or person in

parental relation to the student if the parent or person in parental

relation was prevented from requesting the impartial hearing due to

specific misrepresentations by the school district or other public

agency that it had resolved the problem forming the basis of the

complaint or due to the school district's or other public agency's

withholding of information from the parent or person in parental

relation that was required under federal law to be provided. Nothing in

this subdivision shall be construed to authorize the board of education

or trustees to bring an impartial hearing to override the refusal of a

parent or person in parental relation to consent where a local

educational agency is prohibited by federal law from initiating such a

hearing.

b. If a resolution session resolves the complaint, the parties shall

execute a legally binding agreement that is signed by both the parent or

person in parental relation and a representative of the school district

or public agency who has the authority to bind such district or agency

and shall be enforceable in any state court of competent jurisdiction or

a United States district court. A party may void such agreement within

three business days of the agreement's execution.

c. Individuals so appointed by a board of education or a state agency

shall be selected from a list of available impartial hearing officers

who have successfully completed an impartial hearing officer training

program conducted by the department according to a rotation selection

process prescribed in regulations of the commissioner; except that a

city school district of a city having a population of more than one

million inhabitants shall be exempt from such regulations to the extent

it maintains its rotational selection process in effect prior to July

first, nineteen hundred ninety-three. A record of proceedings before the

impartial hearing officer shall be maintained and made available to the

parties, and the hearing shall be conducted in accordance with the

regulations of the commissioner. The board of education or trustees of

the school district or the state agency responsible for providing

education to students with disabilities shall have the burden of proof,

including the burden of persuasion and burden of production, in any such

impartial hearing, except that a parent or person in parental relation

seeking tuition reimbursement for a unilateral parental placement shall

have the burden of persuasion and burden of production on the

appropriateness of such placement. The decision of the impartial hearing

officer shall be binding upon both parties unless appealed to the state

review officer. The commissioner shall establish a department training

program which shall be completed to the satisfaction of the commissioner

as a condition of certification. Impartial hearing officers shall have

the qualifications specified in subsection (f) of section fourteen

hundred fifteen of title twenty of the United States code, the

implementing federal regulations and the regulations of the

commissioner. The commissioner shall promulgate regulations to ensure

that no individual employed by a school district, school or program

serving students with disabilities placed by a school district committee

on special education acts as an impartial hearing officer and that no

individual employed by such schools or programs serves as an impartial

hearing officer for two years following the termination of such

employment. The commissioner shall promulgate regulations establishing

procedures for the suspension or revocation of impartial hearing officer

certification for good cause. The commissioner shall establish maximum

rates for the compensation of impartial hearing officers subject to the

approval of the director of the division of the budget.

d. The commissioner shall promulgate regulations establishing

procedures and timelines for expedited hearings in cases involving: (1)

review of a decision that a student with a disability's behavior was not

a manifestation of such student's disability, or (2) review of an

interim alternative educational setting or other placement to the extent

required under federal law, or (3) a request by the school district for

a determination that maintaining the current educational placement of

the student is substantially likely to result in injury to the student

or to others.

* NB Effective until June 30, 2027

* 1. If the recommendation of the committee on special education is

not acceptable to the parent or person in parental relationship of a

student, or if the committee or board of education or trustees fails to

make or effectuate such a recommendation within such periods of time as

may be required by regulations of the commissioner, such parents or

persons in parental relationship shall notify the board of education of

this situation and the board shall appoint an impartial hearing officer

to hear the appeal and make a determination within such period of time

as the commissioner by regulation shall determine, provided that the

board of education or trustees shall offer the parent or person in

parental relationship the option of mediation pursuant to section

forty-four hundred four-a of this article as an alternative to an

impartial hearing. Individuals so appointed by a board of education

shall be selected from a list of available hearing officers who have

successfully completed a hearing officer training program conducted by

the department according to a rotation selection process prescribed in

regulations of the commissioner; except that a city school district of a

city having a population of more than one million inhabitants shall be

exempt from such regulations to the extent it maintains its rotational

selection process in effect prior to July first, nineteen hundred

ninety-three. A record of proceedings before the hearing officer shall

be maintained and made available to the parties. The board of education

or trustees of the school district or the state agency responsible for

providing education to students with disabilities shall have the burden

of proof, including the burden of persuasion and burden of production,

in any such impartial hearing, except that a parent or person in

parental relation seeking tuition reimbursement for a unilateral

parental placement shall have the burden of persuasion and burden of

production on the appropriateness of such placement. The decision of the

hearing officer shall be binding upon both parties unless appealed to

the state review officer. The commissioner shall establish a department

training program which shall be completed to the satisfaction of the

commissioner as a condition of certification. The commissioner shall

develop and implement a plan to ensure that no individual employed by a

school district, school or program serving students with disabilities

placed by a school district committee on special education acts as an

impartial hearing officer and that no individual employed by such

schools or programs serves as an impartial hearing officer for two years

following the termination of such employment. Such plan shall be fully

implemented no later than July first, nineteen hundred ninety-six. The

commissioner shall promulgate regulations establishing procedures for

the suspension or revocation of impartial hearing officer certification

for good cause. The commissioner shall establish maximum rates for the

compensation of impartial hearing officers subject to the approval of

the director of the division of the budget. The commissioner shall

promulgate regulations establishing procedures and timelines for

expedited hearings in cases involving: (a) review of a decision that a

student with a disability's behavior was not a manifestation of such

student's disability, or (b) review of an interim alternative

educational setting or other placement to the extent required under

federal law, or (c) a request by the school district for a determination

that maintaining the current educational placement of the student is

substantially likely to result in injury to the student or to others.

* NB Effective June 30, 2027

1-a. If the parent or person in parental relation of a student files a

due process complaint notice seeking an impartial due process hearing

with respect to the evaluation, educational placement, provision of a

free appropriate public education to the student or in accordance with

section thirty-six hundred two-c of this chapter and an impartial

hearing officer is not appointed within one hundred ninety-six days

after filing such due process complaint notice with the local school

district, in accordance with regulations promulgated pursuant to this

section by the commissioner, an impartial hearing officer may then be

immediately appointed to issue an order based upon a proposed order of

relief submitted by the parent or person in parental relation of the

student identifying appropriate and individualized programs and services

for the student. School districts subject to this subdivision shall

annually report, on a form prescribed by the commissioner, on the number

of complaints that seek this relief, the relief sought, and the

resolution of such complaints to the governor, the commissioner, the

temporary president of the senate, the speaker of the assembly, the

chair of the senate education committee, the chair of the senate city of

New York education committee and the chair of the assembly education

committee.

2. Review by state review officer. A state review officer of the

education department shall review and may modify, in such cases and to

the extent that the review officer deems necessary, in order to properly

effectuate the purposes of this article, any determination of the

impartial hearing officer relating to the determination of the nature of

a child's disability, selection of an appropriate special education

program or service and the failure to provide such program and require

such board to comply with the provisions of such modification. The

commissioner shall adopt regulations governing the practice and

procedure in such appeals to the state review officer; provided,

however, that in no event shall any fee or charge whatsoever be imposed

for any appeal taken pursuant to this subdivision. The state review

officer is empowered to make all orders which are proper or necessary to

give effect to the decision of the review officer.

3. Review of the determination of a state review officer regarding

children with disabilities.

* a. Any final determination or order of a state review officer

rendered pursuant to subdivision two of this section may only be

reviewed in a proceeding brought in the supreme court pursuant to

article four of the civil practice law and rules, and paragraph b of

this subdivision, or in United States district court. Any such

proceeding shall be commenced within four months after the determination

to be reviewed becomes final and binding on the parties.

* NB Effective until June 30, 2027

* a. Any final determination or order of a state review officer

rendered pursuant to subdivision two of this section may only be

reviewed in a proceeding brought in the supreme court pursuant to

article four of the civil practice law and rules, and paragraph b of

this subdivision, or in United States district court.

* NB Effective June 30, 2027

* b. In any such proceeding under article four of the civil practice

law and rules, the court may grant any relief authorized by the

provisions of rule four hundred eleven of such law and rules, which

shall include any relief available in a civil action under section six

hundred fifteen of the individuals with disabilities education act (20

U.S.C. section 1415) and also may, in its discretion remand the

proceedings to the state review officer for further consideration upon a

finding that any relevant and material evidence is then available which

was not previously considered by the state review officer. Such

proceeding shall be deemed a proceeding against a body or officer for

purposes of section five hundred six of the civil practice law and

rules. The court shall receive the records of the administrative

proceedings, shall hear additional evidence at the request of a party,

and basing its decision on the preponderance of the evidence, shall

grant the relief that the court determines to be appropriate.

* NB Effective until June 30, 2027

* b. In any such proceeding under article four of the civil practice

law and rules, the court may grant any relief authorized by the

provisions of rule four hundred eleven of such law and rules, which

shall include any relief available in a civil action under section six

hundred fifteen of the individuals with disabilities education act (20

U.S.C. section 1415) and also may, in its discretion remand the

proceedings to the state review officer for further consideration upon a

finding that any relevant and material evidence is then available which

was not previously considered by the state review officer. Such

proceeding shall be deemed a proceeding against a body or officer for

purposes of sections two hundred seventeen and five hundred six of the

civil practice law and rules. The court shall receive the records of the

administrative proceedings, shall hear additional evidence at the

request of a party, and basing its decision on the preponderance of the

evidence, shall grant the relief that the court determines to be

appropriate.

* NB Effective June 30, 2027

4. a. During the pendency of any proceedings conducted pursuant to

this section, other than a proceeding subject to paragraph b of this

subdivision, and during the initial identification, evaluation and

placement procedure pursuant to this section and during the initial

identification, evaluation and placement procedure pursuant to section

forty-four hundred two of this article, unless the local school district

and the parents or persons in parental relationship otherwise agree, the

student shall remain in the then current educational placement of such

student, or, if applying for initial admission to a public school, shall

be placed in the public school program until all such proceedings have

been completed.

* b. For students with disabilities placed in an interim alternative

educational setting pursuant to clause (iv) or (vii) of subparagraph

three of paragraph g of subdivision three of section thirty-two hundred

fourteen of this chapter, during the pendency of proceedings conducted

pursuant to this section in which the parents or persons in parental

relation challenge the interim alternative educational setting or a

manifestation determination, the student shall remain in the interim

alternative educational setting pending the decision of the impartial

hearing officer or until expiration of the time period of the student's

placement in an interim alternative educational setting, whichever comes

first, unless the local school district and the parents or persons in

parental relation otherwise agree. After the expiration of such

placement in an interim alternative educational setting, if the school

district proposes to change the student's placement, during the pendency

of any proceedings to challenge the proposed change in placement, the

student shall return to and remain in the current educational placement,

which shall be the student's placement prior to the interim alternative

educational setting, unless the local school district and the parents or

persons in parental relation otherwise agree or unless as a result of a

decision by an impartial hearing officer in an expedited hearing, the

interim alternative educational setting is extended for a period not to

exceed forty-five school days based on a determination that maintaining

the current educational placement of the student is substantially likely

to result in injury to the student or to others. Such procedure for

extension of an interim alternative educational setting may be repeated

as necessary.

* NB Effective until June 30, 2027

* b. For students with disabilities placed in an interim alternative

educational setting pursuant to clause (iv) or (vii) of subparagraph

three of paragraph g of subdivision three of section thirty-two hundred

fourteen of this chapter, during the pendency of proceedings conducted

pursuant to this section in which the parents or persons in parental

relationship challenge the interim alternative educational setting or a

manifestation determination, the student shall remain in the interim

alternative educational setting pending the decision of the hearing

officer or until expiration of the time period of the student's interim

alternative placement, whichever comes first, unless the local school

district and the parents or persons in parental relationship otherwise

agree. After the expiration of such interim alternative educational

placement, if the school district proposes to change the student's

placement, during the pendency of any proceedings to challenge the

proposed change in placement, the student shall return to and remain in

the current educational placement, which shall be the student's

placement prior to the interim alternative educational setting, unless

the local school district and the parents or persons in parental

relationship otherwise agree or unless as a result of a decision by an

impartial hearing officer in an expedited hearing, the interim

alternative educational setting is extended or another appropriate

placement is ordered for a period not to exceed forty-five days based on

a determination that maintaining the current educational placement of

the student is substantially likely to result in injury to the student

or to others. Such procedure for extension of an interim alternative

educational setting may be repeated as necessary.

* NB Effective June 30, 2027

5. For purposes of this section, to the extent required by federal

law, a student presumed to have a disability for discipline purposes

shall be deemed to be a student with a disability and the parents or

persons in parental relationship of a student presumed to have a

disability for discipline purposes shall be afforded the procedural

rights of the parents or persons in parental relationship of a student

with a disability. Nothing in this section shall be construed to confer

upon a student presumed to have a disability for disciplinary purposes

greater procedural rights than such student would have under the

provisions of section six hundred fifteen of the individuals with

disabilities education act.