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September 2003

To:

District Superintendents

Presidents of Boards of Education

New York City Department of Education

Superintendents of Schools

Superintendents of State-Operated and State-Supported Schools

Superintendents of Special Act Schools

Organizations, Parents & Individuals Concerned with Special Education

Presidents, Local Teachers Associations

Directors of Special Education
Executive Directors of Approved Private Schools

Directors of Pupil Personnel Services

Chairpersons of Committees on Special Education

New York City Committee on Special Education Chairpersons and Administrators

School Psychologists

Impartial Hearing Officers

New York State Community Dispute Resolution Centers

Commissioner's Advisory Panel for Special Education Services

SETRC Project Directors and Professional Development Specialists

Independent Living Centers

Colleges with Special Education Teacher Training
Other State Agency Programs
From: Lawrence C. Gloeckler
Subject:

Procedural Safeguards for Students with Disabilities: Judicial Review of a Written Decision of a State Review Officer

Section 4404(3) of the Education Law and section 7803 of the Civil Practice Law were amended, effective September 1, 2003, by Chapter 492 of the Laws of 2003. These changes were made to conform New York State law to section 615(i)(2) of the federal Individuals with Disabilities Education Act (IDEA) and its implementing regulations (34 CFR Part 300) relating to the right to bring civil action in appeals relating to students with disabilities.

As a result of these legislative changes, a judicial proceeding in State court to review a determination of the State review officer that is commenced on or after September 1, 2003 must be by means of a proceeding pursuant to Article 4 of the Civil Practice Law and Rules and the amended provisions of Education Law 4404(3). Under these amended provisions, the court must receive the records of the State review officer, hear additional evidence at the request of a party, and base its decision on the preponderance of the evidence. A court may grant the relief that the court determines to be appropriate. The statute of limitations and venue provisions that formerly applied to Article 78 review, will continue to apply. As under current law, parties may, in the alternative, seek judicial review in the United States District Court.

A copy of Chapter 492 of the Laws of 2003 is attached. A conforming regulatory amendment to section 200.5(j) of the Regulations of the Commissioner of Education will be submitted to the Board of Regents.

Questions regarding this memorandum may be directed to the Special Education Policy Development Unit at (518) 473-2878.

Chapter 492 of the Laws of 2003

New York State Assembly Logo
Wednesday, October 1, 2003
 

New York State 2003 Chapter 492


                         LAWS OF NEW YORK, 2003
                               CHAPTER 492
AN  ACT to amend the education law and the civil practice law and rules,
  in relation to review of a final determination regarding children with
  disabilities
   Became a law September 9, 2003, 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.  Subdivision  3  of  section 4404 of the education law, as
amended by chapter 53 of the  laws  of  1990,  is  amended  to  read  as
follows:
  3.  Review  of  the  determination of a state review officer regarding
children with {handicapping conditions} DISABILITIES.
  A. Any final determination or order of a state review officer {denying
or limiting any special service or program to any child under this arti-
cle} RENDERED PURSUANT TO SUBDIVISION TWO OF THIS SECTION  may  only  be
reviewed  in a proceeding brought in the supreme court pursuant to arti-
cle {seventy-eight} FOUR of the civil practice law and rules, AND  PARA-
GRAPH B OF THIS SUBDIVISION, OR IN UNITED STATES DISTRICT COURT.
  B.  In  any  SUCH proceeding under article {seventy-eight} FOUR OF THE
CIVIL PRACTICE LAW AND RULES, the court may grant any relief  authorized
by  the  provisions  of  {section seventy-eight} RULE FOUR hundred {six}
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
{commissioner}  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.
  S  2.  Section  7803 of the civil practice law and rules is amended by
adding a new subdivision 5 to read as follows:
  5. A PROCEEDING TO REVIEW THE FINAL  DETERMINATION  OR  ORDER  OF  THE
STATE REVIEW OFFICER PURSUANT TO SUBDIVISION THREE OF SECTION FORTY-FOUR
HUNDRED  FOUR  OF THE EDUCATION LAW SHALL BE BROUGHT PURSUANT TO ARTICLE
FOUR OF THIS CHAPTER AND SUCH SUBDIVISION; PROVIDED, HOWEVER,  THAT  THE
PROVISIONS  OF  THIS ARTICLE SHALL NOT APPLY TO ANY PROCEEDING COMMENCED
ON OR AFTER THE EFFECTIVE DATE OF THIS SUBDIVISION.
  S 3. This act shall take effect September 1, 2003 and shall  apply  to
proceedings commenced on or after such effective date.
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
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