September 2007
Available in PDF Format for Printing
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TO:
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District Superintendents
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Superintendent of Schools
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Presidents of Boards of Education
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Superintendents of State-Operated and State-Supported
Schools
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| Executive Directors of Approved Private Schools | |
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New York City Board of Education
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Organizations, Parents and Individuals Concerned with
Special Education
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Commissioner's Advisory Panel for Special Education Services
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SETRC Project Directors and Professional Development
Specialists
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| Regional School Support Centers | |
| Impartial Hearing Officers | |
| Mediators | |
| Other State Agencies | |
| FROM: | Rebecca H. Cort  |
| SUBJECT: | Burden of Proof for an Appeal in an Impartial Due Process Hearing |
Chapter 583 of the Laws of 2007 (attached) was enacted to provide that the
burden of proof in an impartial due process hearing pursuant to §4404(1)
of Education Law to challenge the recommendation of a Committee on Special
Education (CSE) or Committee on Preschool Special Education (CPSE), or otherwise
challenge actions or omissions relating to the provision of a free appropriate
public education (FAPE) to a student with a disability, is generally placed
on the school district (or State agency) providing special education to the
student. The law creates an exception for impartial hearings in which
the parent seeks tuition reimbursement for a unilateral placement in a private
school. Chapter 583 takes effect 60 days from August 15, 2007.
To ensure dissemination
to appropriate individuals within a school district, I ask Superintendents
to please share this memorandum with other individuals such as Building Principals,
Directors of Special Education, School Psychologists, CSE and CPSE Chairpersons,
Guidance Counselors and Directors of Pupil Personnel. Questions regarding this
memorandum may be directed to the Special Education Policy Unit at 518-473-2878.
Attachment
CHAPTER 583
AN ACT to amend the education law, in relation to the burden of proof
for appeal procedures for children with handicapping conditions
Became a law August 15, 2007, with the approval of the Governor.
Passed by a majority vote, three-fifths being present.
The People of the State of New York, represented in Senate and Assem-
bly, do enact as follows:
Section 1. Paragraph c of subdivision 1 of section 4404 of the educa-
tion law, as amended by chapter 352 of the laws of 2005, is amended to
read as follows:
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 regu-
lations 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 condi-
tion of certification. Impartial hearing officers shall have the quali-
fications 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 commis-
sioner 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.
§ 2. Subdivision 1 of section 4404 of the education law, as amended by
chapter 311 of the laws of 1999, is amended to read as follows:
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 impar-
tial 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 educa-
tion 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 appropri-
ateness 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 condi-
tion 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 regu-
lations establishing procedures and timelines for expedited hearings in
cases involving: (a) review of a decision that a student with a disabil-
ity's behavior was not a manifestation of such student's disability, or
(b) review of an interim alternative educational setting or other place-
ment to the extent required under federal law, or (c) a request by the
school district for a determination that maintaining the current educa-
tional placement of the student is substantially likely to result in
injury to the student or to others.
§ 3. This act shall take effect on the sixtieth day after it shall
have become a law and shall apply to impartial hearings commenced on or
after such effective date; provided, however, that the amendments to
paragraph c of subdivision 1 of section 4404 of the education law made
by section one of this act shall be subject to the expiration and rever-
sion of such subdivision pursuant to section 22 of chapter 352 of the
laws of 2005, as amended, when upon such date the provisions of section
two of this act shall take effect.
The Legislature of the STATE OF NEW YORK ss:
Pursuant to the authority vested in us by section 70-b of the Public
Officers Law, we hereby jointly certify that this slip copy of this
session law was printed under our direction and, in accordance with such
section, is entitled to be read into evidence.
JOSEPH L. BRUNO SHELDON SILVER
Temporary President of the Senate Speaker of the Assembly