(a) In accordance with Education Law section 3020-a(2)(c), where a board suspends an employee without pay pending a determination in an expedited hearing based on charges of misconduct constituting physical or sexual abuse of a student, a probable cause hearing shall be conducted pursuant to this section within 10 days of the decision to suspend without pay. Such unpaid suspension shall not exceed 120 days from the decision of the board of education to suspend the employee without pay.

1. (1) A school district shall notify the commissioner of a request for a probable cause hearing within one business day of suspending an employee without pay based on charges of misconduct constituting physical or sexual abuse of a student.
2. (2) The commissioner shall maintain a rotational list or lists of individuals who have agreed to serve as impartial hearing officers in accordance with the timeframes and conditions set forth in Education Law section 3020-a(2)(c). The commissioner, in his discretion, may remove a hearing officer from the rotational list, if he or she engages in a pattern of declinations or is unable to perform his/her duties in the timelines prescribed in Education Law section 3020-a(2)(c) or this Subpart. A pattern of declinations is defined as two or more declinations within one year. If a hearing officer is removed, he or she may make an application to be reinstated after one year, which may be granted in the commissioner’s discretion.
3. (3) Upon receipt of request for a need for a probable cause hearing, the commissioner shall appoint the next available hearing officer from the rotational list. The failure of the hearing officer to accept the case within 24 hours of being notified that he or she has been selected shall be deemed a declination.
4. (4) At the conclusion of the probable cause hearing, the impartial hearing officer may make an oral ruling or issue a written decision on the record as to whether the decision to suspend an employee without pay should be continued or reversed.

5. (5) The impartial hearing officer shall reverse the decision of the board to suspend without pay and reinstate the pay:

   1. (i) upon a finding that probable cause does not support the charges; or
   2. (ii) upon a written determination that suspension without pay is grossly disproportionate in light of all surrounding circumstances.
6. (6) The employee shall be eligible for reimbursement of the withheld pay and accrued interest at the rate of six percent compounded annually if the hearing officer finds in the employee’s favor, at either in the probable cause hearing or in a final determination at the conclusion of the expedited hearing.

(b) Probable cause hearing procedures.