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September 2003
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| 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
 |
| Wednesday,
October 1, 2003 |
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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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