(1) a program approved by the commissioner pursuant to paragraph b of
subdivision nine of this section; or
(2) a school district or group of appropriately licensed and/or
certified professionals associated with a public or private agency
approved by the commissioner pursuant to subdivision nine-a of this
section.
b. "Approved program" means a program approved by the commissioner
pursuant to paragraph a of subdivision nine of this section.
c. "Board" means:
(i) a board of education as defined in section two of this chapter; or
(ii) trustees of a common school district as defined in section
sixteen hundred one of this chapter.
d. "City or county official" means the chief executive officer, or, in
any county which does not have a chief executive officer, the county
governing body, or the mayor of the city of New York.
e. "Committee" means committee on preschool special education.
f. "First eligible for services" means the earliest date on which a
child becomes age-eligible for services pursuant to this section, and as
defined in regulations of the commissioner in accordance with applicable
federal law and regulations, except that a child who is already
receiving services under section two hundred thirty-six of the family
court act or its successor may, if the parent so chooses, continue to be
eligible to receive such services through August thirty-first of the
calendar year in which the child first becomes age-eligible to receive
services pursuant to this section.
g. "Municipality" means a county outside the city of New York or the
city of New York in the case of a county contained within the city of
New York.
h. "Parent" means parent or person in parental relation.
i. "Preschool child" means a child with a disability as defined in
section forty-four hundred one of this article who is first eligible for
services as defined in paragraph f of this subdivision but who will not
have become five years of age on or before December first of the school
year, or a later date if a board establishes such later date for
eligibility to attend school. A child shall be deemed a preschool child
through the month of August of the school year in which the child first
becomes eligible to attend school pursuant to section thirty-two hundred
two of this chapter.
j. "Related services" means those services as defined in paragraph k
of subdivision two of section forty-four hundred one of this article
provided to a preschool child at a site determined by the board,
including but not limited to an approved or licensed prekindergarten or
head start program; the work site of the provider; the child's home; a
hospital; a state facility; or a child care location as defined in
paragraph a of subdivision eight of this section. If the board
determines that documented medical or special needs of the preschool
child indicate that the child should not be transported to another site,
the child shall be entitled to receive related services in the preschool
child's home.
k. "Special education itinerant services" means an approved program
provided by a certified special education teacher on an itinerant basis
in accordance with the regulations of the commissioner, at a site
determined by the board, including but not limited to an approved or
licensed prekindergarten or head start program; the child's home; a
hospital; a state facility; or a child care location as defined in
paragraph a of subdivision eight of this section. If the board
determines that documented medical or special needs of the preschool
child indicate that the child should not be transported to another site,
the child shall be entitled to receive special education itinerant
services in the preschool child's home.
2. Provision of services. The board of each school district shall be
responsible for the provision of special education services and programs
to preschool children in accordance with the provisions of subdivision
two of section four thousand four hundred one of this article, except as
otherwise limited by regulations of the commissioner; provided, however,
that prior to July first, nineteen hundred ninety-one, a board shall be
responsible for the provision of special education services and programs
to a preschool child only to the extent that there is an approved
program available for such preschool children.
3. Committee on preschool special education. a. Each such board shall
establish one or more committees to conduct meetings to develop, review
and revise the individualized education program of a preschool child
with a disability.
* (1) Such board shall ensure that such committee is composed of at
least the following members: (i) the parents of the preschool child;
(ii) a regular education teacher of such child, whenever the child is or
may be participating in a regular education environment; (iii) a special
education teacher of the child or, if appropriate, a special education
provider of the child; (iv) an appropriate professional employed by the
school district who is qualified to provide, or supervise the provision
of, special education, who is knowledgeable about the general curriculum
of the school district and the availability of preschool special
education programs and services and other resources in the school
district and the municipality, and who shall serve as chairperson of the
committee; (v) an additional parent of a child with a disability who
resides in the school district or a neighboring school district and
whose child is enrolled in a preschool or elementary level education
program, provided that such parent shall not be employed by or under
contract with the school district or municipality, and provided further
that such additional parent shall not be a required member unless the
parents, or a member of the committee on preschool special education,
request that such additional parent member participate in accordance
with this subparagraph; (vi) an individual who can interpret the
instructional implications of evaluation results, provided that such
individual may be the member appointed pursuant to clause (ii), (iii),
(iv) or (vii) of this subparagraph where such individuals are determined
by the school district to have the knowledge and expertise to do so;
(vii) such other persons having knowledge or expertise regarding the
child as the board or the parents shall designate, to the extent
required under federal law; and for a child in transition from programs
and services provided pursuant to applicable federal laws relating to
early intervention services, at the request of the parent or person in
parental relation to the child, the appropriate professional designated
by the agency that has been charged with the responsibility for the
preschool child pursuant to said applicable federal laws. In addition,
the chief executive officer of the municipality of the preschool child's
residence shall appoint an appropriately certified or licensed
professional to the committee. Attendance of the appointee of the
municipality shall not be required for a quorum. The additional parent
need not be in attendance at any meeting of the committee on preschool
special education unless specifically requested in writing, at least
seventy-two hours prior to such meeting, by the parents or other person
in parental relation to the student in question or a member of the
committee on preschool special education. The parents or persons in
parental relation of the student in question shall receive proper
written notice of their right to have an additional parent attend any
meeting of the committee regarding the student along with a statement,
prepared by the department, explaining the role of having the additional
parent attend the meeting.
* NB Effective until June 30, 2024
* (1) Such board shall ensure that such committee is composed of at
least the following members: (i) the parents of the preschool child;
(ii) a regular education teacher of such child, whenever the child is or
may be participating in a regular education environment; (iii) a special
education teacher of the child or, if appropriate, a special education
provider of the child; (iv) an appropriate professional employed by the
school district who is qualified to provide, or supervise the provision
of, special education, who is knowledgeable about the general curriculum
of the school district and the availability of preschool special
education programs and services and other resources in the school
district and the municipality, and who shall serve as chairperson of the
committee; (v) an additional parent of a child with a disability who
resides in the school district or a neighboring school district and
whose child is enrolled in a preschool or elementary level education
program, provided that such parent shall not be employed by or under
contract with the school district or municipality, and provided further
that such additional parent shall not be a required member if the
parents request that such additional parent member not participate; (vi)
an individual who can interpret the instructional implications of
evaluation results, provided that such individual may be the member
appointed pursuant to clause (ii), (iii), (iv) or (vii) of this
subparagraph where such individuals are determined by the school
district to have the knowledge and expertise to do so; (vii) such other
persons having knowledge or expertise regarding the child as the board
or the parents shall designate, to the extent required under federal
law; and for a child in transition from programs and services provided
pursuant to applicable federal laws relating to early intervention
services, the appropriate professional designated by the agency that has
been charged with the responsibility for the preschool child pursuant to
said applicable federal laws. In addition, the chief executive officer
of the municipality of the preschool child's residence shall appoint an
appropriately certified or licensed professional to the committee.
Attendance of the appointee of the municipality shall not be required
for a quorum.
* NB Effective June 30, 2024
(2) At least five business days prior to a meeting of the committee on
preschool special education notice of such meeting shall be given to
each committee member, including the appointee of the municipality, and
the parent of the preschool child, in writing by first class mail,
postage prepaid, telefacsimile, or by personal service. The
appropriately licensed or certified professional designated by the
agency that has been charged with the responsibility for the preschool
child pursuant to applicable federal laws relating to early intervention
services shall attend all meetings of the committee conducted prior to
the child's initial receipt of services pursuant to this section. The
regular education teacher of the child shall participate in the
development, review and revision of an individualized education program
for the child to the extent required under federal law. A member of such
committee shall be considered as a member of a committee on special
education for the purposes of section thirty-eight hundred eleven of
this chapter.
* (3) Notwithstanding any provision of law, rule or regulation to the
contrary, a member of the committee on preschool special education,
other than the parents or persons in parental relation to the student or
the appointee of the municipality, is not required to attend a meeting
of the team, in whole or in part, if the parent or person in parental
relation to the student and the school district agree, in writing, that
the attendance of the member is not necessary because the member's area
of the curriculum or related services is not being modified or discussed
at the meeting.
* NB Repealed June 30, 2024
* (4) Notwithstanding any provision of law, rule or regulation to the
contrary, a member of the committee on preschool special education,
other than the parents or persons in parental relation to the student or
the appointee of the municipality, may be excused from attending a
meeting of the committee, in whole or in part, when the meeting involves
a modification to or discussion of the member's area of the curriculum
or related services if the parent or person in parental relation to the
student and the school district consent, in writing, to the excusal and
the excused member submits to the parent or person in parental relation
to the student and such committee, written input into the development of
the individualized education program, and in particular written input
with respect to their area of curriculum or related services prior to
the meeting.
* NB Repealed June 30, 2024
* (5) Requests for excusal of a member of the committee on preschool
special education as provided for in subparagraphs three and four of
this paragraph, and the written input as provided for in subparagraph
four of this paragraph, shall be provided not less than five calendar
days prior to the meeting date, in order to afford the parent or person
in parental relation a reasonable time to review and consider the
request. Provided however, that a parent or person in parental relation
shall retain the right to request and/or agree with the school district
to excuse a member of the committee on preschool education at any time
including where the member is unable to attend the meeting because of an
emergency or unavoidable scheduling conflict and the school district
submits the written input for review and consideration by the parent or
person in parental relation within a reasonable time prior to the
meeting and prior to obtaining written consent of the parent or person
in parental relation to such excusal.
* NB Repealed June 30, 2024
* (6) Notwithstanding any other provision of law, rule or regulation
to the contrary, in making changes to a student's individualized
education program after the annual review has been conducted, the parent
or person in parental relation to the student and the school district
may agree not to convene a meeting of the committee on preschool special
education for the purpose of making those changes, and instead may
develop a written document to amend or modify the student's current
individualized education program under the following circumstances:
(i) The parent or person in parental relation makes a request to the
school district for an amendment to the individualized education program
and the school district and such parent or person in parental relation
agree in writing; or
(ii) The school district provides the parent or person in parental
relation with a written proposal to amend a provision or provisions of
the individualized education program that is conveyed in language
understandable to the parent or person in parental relation in such
parent's or such person's native language or other dominant mode of
communication, informs and allows the parent or person in parental
relation the opportunity to consult with the appropriate personnel or
related service providers concerning the proposed changes and the parent
or person in parental relation agrees in writing to such amendments.
(iii) If the parent or person in parental relation agrees to amend the
individualized education program without a meeting, the parent or person
in parental relation shall be provided prior written notice of the
changes to the individualized education program resulting from such
written document and the committee on preschool special education shall
be notified of such changes. If the school district makes such changes
by rewriting the entire individualized education program, it shall
provide the parent or person in parental relation with a copy of the
rewritten individualized education program. If the school district
amends the individualized education program without rewriting the entire
document, the school district shall provide the parent or person in
parental relation with a copy of the document that amends or modifies
the individualized education program or, upon request of the parent or
person in parental relation, a revised copy of the individualized
education program with the amendments incorporated.
Amendments to an individualized education program pursuant to this
clause shall not affect the requirement that the committee on preschool
special education review the individualized education program at the
annual meeting, or more often if necessary.
* NB Repealed June 30, 2024
b. Two or more boards may, subject to the approval of the
commissioner, establish a joint committee. Boards seeking to establish
such a joint committee shall apply to the commissioner for approval on a
form prescribed by the commissioner. Such application shall include, but
not be limited to, a plan for holding meetings in a manner and at a
location convenient for parents.
c. A municipality with one or more boards located within the
municipality may coordinate the scheduling and location of meetings with
the prior consent of such board or boards and the approval of the
commissioner.
d. The committee shall review, at least annually, the status of each
preschool child.
e. In any meeting held to review or evaluate a preschool child, the
preschool child's parent shall be given the opportunity to attend and
participate in the meeting. The committee shall permit individuals
invited by the parent to be present. To the extent possible, any meeting
of the committee shall be held at a site mutually convenient to the
members of the committee and the parent of the preschool child,
including but not limited to the work site of the evaluator, the
municipal representative on the committee, or the chairperson of the
committee. In a city having a population of less than two hundred fifty
thousand but more than two hundred thousand and in a city having a
population of less than one hundred seventy-five thousand but more than
one hundred fifty thousand, the chairperson of the committee shall
determine the location of the meeting.
f. After notification by a service coordinator, as defined in section
twenty-five hundred forty-one of the public health law, that a child
receiving services pursuant to title II-A of article twenty-five of the
public health law potentially will transition to receiving services
under this section and that a conference is to be convened to review the
child's program options and establish a transition plan, which
conference must occur at least ninety days before such child would be
eligible for services under this section, the chairperson of the
committee on preschool special education of the local school district or
his or her designee in which such child resides shall participate in the
conference.
g. In any meeting of the committee held to review or reevaluate the
status of a preschool child, the professional who participated in the
evaluation shall, upon the request of the parent or committee, attend
and participate at such meeting.
4. Evaluations. a. The board shall identify each preschool child
suspected of having a handicapping condition who resides within the
district and, upon referral to the committee shall, with the consent of
the parent, provide for an evaluation related to the suspected
disability of the child. The board shall make such identification in
accordance with regulations of the commissioner.
b. Each board shall, within time limits established by the
commissioner, be responsible for providing the parent of a preschool
child suspected of having a handicapping condition with a list of
approved evaluators in the geographic area. The parent may select the
evaluator from such list. Each board shall provide for dissemination of
the list and other information to parents at appropriate sites including
but not limited to pre-kindergarten, day care, head start programs and
early childhood direction centers, pursuant to regulations of the
commissioner.
c. The documentation of the evaluation shall include all assessment
reports and a summary report of the findings of the evaluation on a form
prescribed by the commissioner including a detailed statement of the
preschool child's individual needs. The summary report shall not make
reference to any specific provider of special services or programs. In
addition, with the consent of the parents, approved evaluators and
committees shall be provided with the most recent evaluation report for
a child in transition from programs and services provided pursuant to
title two-a of article twenty-five of the public health law. Nothing
shall prohibit an approved evaluator or the committee from reviewing
other assessments or evaluations to determine if such assessments or
evaluations fulfill the requirements of the regulations of the
commissioner. Notwithstanding any inconsistent provisions of this
section, the committee, in its discretion, may obtain an evaluation of
the child from another approved evaluator prior to making any
recommendation that would place a child in the approved program that
conducted the evaluation of the child. If the committee recommends
placing a child in an approved program that also conducted an evaluation
of such child it shall indicate in writing that such placement is an
appropriate one for the child. In addition, the committee shall provide
notice to the commissioner of such recommendation.
d. The approved evaluator shall, following completion of the
evaluation, transmit the documentation of the evaluation to all members
of the committee and to a person designated by the municipality in which
the preschool child resides. Each municipality shall notify the approved
evaluators in the geographic area of the person so designated. The
summary report of the evaluation shall be transmitted in English and
when necessary, also in the dominant language or other mode of
communication of the parent; the documentation of the evaluation shall
be transmitted in English and, upon the request of the parent, also in
the dominant language or other mode of communication of the parent,
unless not clearly feasible to do so pursuant to regulations promulgated
by the commissioner. Costs of translating the summary report and
documentation of the evaluation shall be separately reimbursed. If,
based on the evaluation, the committee finds that a child has a
handicapping condition, the committee shall use the documentation of the
evaluation to develop an individualized education program for the
preschool child. Nothing herein shall prohibit an approved evaluator
from at any time providing the parent with a copy of the documentation
of the evaluation provided to the committee.
e. Prior to the committee meeting at which eligibility will be
determined, the committee shall provide the parent with a copy of the
summary report of the findings of the evaluation, and shall provide the
parent with written notice of the opportunity to address the committee
in person or in writing. Upon timely request of the parent, the
committee shall, prior to meeting, provide a copy of all written
documentation to be considered by the committee; provided, however, that
such material shall be provided to the parent at any time upon request.
f. If the parent disagrees with the evaluation, the parent may obtain
an additional evaluation at public expense to the extent authorized by
federal law or regulation.
5. Determination of services. a. The committee shall review all
relevant information, including but not limited to:
(i) information presented by the parent and the child's teacher or
teachers pertinent to each child suspected of having a handicapping
condition;
(ii) the results of all evaluations; and
(iii) information provided by the appropriate licensed or certified
professional designated by the agency that is charged with the
responsibility for the child pursuant to applicable federal laws, if
any.
b. (i) If the committee determines that the child has a disability,
the committee shall recommend approved appropriate services or special
programs and the frequency, duration and intensity of such services,
including but not limited to the appropriateness of single services or
half-day programs based on the individual needs of the preschool child.
The committee shall first consider the appropriateness of providing: (i)
related services only; (ii) special education itinerant services only;
(iii) related services in combination with special education itinerant
services; (iv) a half-day program, as defined in the regulations of the
commissioner; (v) a full day program; in meeting the child's needs. If
the committee determines that the child demonstrates the need for a
single related service, such service shall be provided as a related
service only or, where appropriate, as a special education itinerant
service. Prior to recommending the provision of special education
services in a setting which includes only preschool children with
disabilities, the committee shall first consider providing special
education services in a setting which includes age-appropriate peers
without disabilities. Provision of special education services in a
setting with no regular contact with such age-appropriate peers shall be
considered only when the nature or severity of the child's disability is
such that education in a less restrictive environment with the use of
supplementary aids and services cannot be achieved satisfactorily. The
committee's recommendation shall include a statement of the reasons why
less restrictive placements were not recommended. The committee may
recommend placement in a program that uses psychotropic drugs only if
the program has a written policy pertaining to such use and the parent
is given a copy of such written policy at the time such recommendation
is made.
(ii) The committee shall recommend approved appropriate services or
special programs. The recommendation shall be based on the individual
needs of the preschool child. Appropriate services may include one or
more related services selected from a list maintained by a municipality
pursuant to paragraph c of subdivision nine of this section; provided,
however, that if the committee recommends one or more related services
from such list, or itinerant services, the committee shall request that
the parent identify the initial child care location arranged by the
parent, or other site, at which each such service will be provided.
(iii) The reasons for such recommendation shall be in writing and
shall be furnished to the preschool child's parent, the municipality in
which the preschool child resides and the board. If the committee's
recommendation differs from an expressed preference of a parent with
respect to the frequency, duration or intensity of services, or with
respect to more or less restrictive settings, the committee shall
include in its statement the reasons why the committee recommended a
program or service other than that preferred by the parent. The
committee shall include in its recommendation any statement or
statements provided by the parent, which the board shall consider.
(iv) The members of the committee or subcommittee may compile a list
of appropriate and/or helpful services that may be available outside of
the school setting to provide the parents or person in parental relation
of a child with a disability with such information. Such list shall
clearly state that these services are in addition to services supplied
by the school district and will not be paid for by the school district.
Any member of a committee or his or her respective school district who,
acting reasonably and in good faith, provides such information shall not
be liable for such action.
c. After consideration of the recommendation of the committee and its
statement of reasons, including any statement or statements of a parent
setting forth an expressed preference, the board shall arrange for the
provision of the recommended special services or programs from among the
special services and programs approved for such purpose by the
commissioner. In the event the special service or program will be
provided in the child's home or another care setting for which the
parent has made or subsequently makes arrangements, no transportation
shall be indicated.
d. If the board disagrees with the recommendation of the committee, it
shall set forth in writing a statement of its reasons and send the
recommendation back to the committee, a notice of which shall be
furnished to the preschool child's parent and the municipality in which
the preschool child resides. In the event a board refers the
recommendation back to the committee for reconsideration, the board
shall also notify the parent and the committee in writing of the need to
schedule a meeting to ensure timely placement. If the determination is
for two or more related services, where possible, the board shall select
from the list maintained by the municipality pursuant to paragraph c of
subdivision nine of this section such related service providers that are
employed by a single agency for the provision of such services. The
board shall provide each related service provider with a copy of the
individualized education program and the name and location of each
related service provider. The board shall designate one of the service
providers to coordinate the provision of the related services. If the
determination is for special education itinerant services and one or
more related services, the special education itinerant service provider
shall be responsible for the coordination of such services pursuant to
regulations of the commissioner.
* e. A preschool child shall receive the services of a program
arranged for by the board commencing with the starting date for such
program, unless such services are recommended by the committee less than
thirty days prior to, or after, the starting date for such program, in
which case, such services shall be provided as soon as possible
following development of the individualized education program, but no
later than thirty days from the recommendation of the committee;
provided, however, that in no case shall a child receive services prior
to the date that such child is first eligible for services pursuant to
paragraph f of subdivision one of this section.
* NB Effective until June 30, 2024
* e. A preschool child shall receive the services of a program
arranged for by the board commencing with the starting date for such
program, unless such services are recommended by the committee less than
thirty days prior to, or after, the starting date for such program, in
which case, such services shall be provided no later than thirty days
from the recommendation of the committee; provided, however, that in no
case shall a child receive services prior to the date that such child is
first eligible for services pursuant to paragraph f of subdivision one
of this section.
* NB Effective June 30, 2024
f. The board shall give written notice of the special services or
programs arranged for to the appropriate municipality, and to the
related service provider or the approved program selected to provide the
services. The municipality shall contract with the approved program in a
timely manner but in no event later than forty days from the receipt of
written notice of the determination of the board. If the municipality is
a city of one million or more persons, the municipality may delegate
contracting authority to the board. The contract shall include but not
be limited to any provisions required by the commissioner, shall adhere
to the rates established pursuant to subdivision ten of this section as
applicable and shall be in a form approved by the commissioner. After
receipt of notification from a municipality of actions taken pursuant to
this paragraph and subdivision eight of this section, the commissioner
shall issue a notice of authorization for reimbursement to the
municipality pursuant to the provisions of subdivisions ten and eleven
of this section. Provided further, any agreement for transportation
services pursuant to subdivision eight of this section shall be a
contract, separate and distinct from the contract for special services
or programs pursuant to this section, between the municipality and the
approved program which shall include but not be limited to any
provisions required by the commissioner on a form prescribed by the
commissioner.
g. The board shall determine the appropriate municipality based on the
municipality within the school district in which the preschool child
resides at the time such board issues its written notice of
determination. The board shall terminate such determination if the board
arranges for the provision of a new service or program for such child or
if the preschool child moves out of the school district or moves to a
different municipality within the school district. If the board
terminates such determination for a preschool child because such child
moves to a different municipality within the school district, such board
shall issue a new written notice of determination for the same special
education service or program effective the next school day which shall
become the responsibility of the new municipality in which such child
resides. Pursuant to regulations promulgated by the commissioner, if the
preschool child moves to a school district that is within a reasonable
distance of the child's current approved placement such child may
continue in such placement if it is consistent with the individualized
needs of the child and the board of the new school district shall issue
a notice of determination to continue such placement, provided that
nothing shall preclude a parent from requesting and receiving from the
committee of the new school district a reevaluation of the continued
placement of such preschool child prior to the annual review
establishing the placement for the next school year.
h. Such special services or programs shall be furnished between the
months of September and June of each year, except for those preschool
children whose disabilities are severe enough to exhibit the need for a
structured learning environment of twelve months duration to prevent
substantial regression. The committee shall include in its
recommendation for such services or programs a statement of the reasons
for such recommendation. The board, after consideration of the
recommendation of the committee, shall select an appropriate special
service or program for each preschool child eligible for such special
service or program during the months of July and August from among those
programs approved for such purpose by the commissioner. Nothing
contained herein shall be construed to prevent the committee from
recommending or the board from selecting a special service or program,
or the frequency or duration of a special service or program, which is
different in type or intensity than the service or program that the
child is furnished between the months of September and June.
6. Professional practice issues. a. Notwithstanding any provisions of
law to the contrary, approved programs operated by private providers
shall be authorized to employ licensed professionals or contract with
licensed professionals or entities legally authorized to provide
professional services in accordance with section sixty-five hundred
three-b of this chapter.
b. An approved program may be formed as an education corporation, or
with the consent of the commissioner as: (i) a not-for-profit
corporation; (ii) a business corporation that has the operation of an
approved program or another special education school as a primary
purpose; (iii) a limited liability company; (iv) a professional service
limited liability company or a foreign professional service limited
liability company in accordance with the applicable provisions of
article twelve or thirteen of the limited liability company law; (v) a
registered limited liability partnership or registered foreign limited
liability partnership in accordance with article eight-B of the
partnership law. In addition, a group of appropriately licensed or
certified professionals may be formed as a professional services
corporation established pursuant to article fifteen of the business
corporation law or as a professional service limited liability company,
foreign professional service limited liability company or registered
limited liability partnership or registered foreign limited liability
partnership in accordance with article eight-B of the partnership law.
An approved program formed as such a professional service limited
liability company or registered limited liability partnership may be
authorized to provide special education itinerant services or other
educational services not involving the practice of a profession under
title eight of this chapter, and, upon grant of a waiver pursuant to
section sixty-five hundred three-b of this chapter, may employ or
contract with individuals licensed or otherwise authorized to practice,
or with a professional service corporation, partnership or other entity
legally authorized to practice any profession under title eight of this
chapter in which the entity would not be authorized to provide
professional services under the applicable provisions of section twelve
hundred three or subdivision (a) of section thirteen hundred one of the
limited liability company law or sections 121-1500 or 121-1502 of the
partnership law, provided that such contract is within the scope of the
department's approval and is only for the purpose of conducting a
multi-disciplinary evaluation of a preschool child suspected of having a
disability or a preschool child with a disability or providing related
services specified in the individualized education program of a
preschool child with a disability.
c. Notwithstanding any other provision of law to the contrary, the
exemption in subdivision two of section eighty-two hundred seven of this
chapter shall apply to persons employed by a center-based program
approved pursuant to subdivision nine of this section to perform the
duties of a speech-language pathologist, audiologist, teacher of the
speech and deaf and hard of hearing or teacher of the deaf to students
enrolled in such approved center-based program in the course of their
employment.
* d. Notwithstanding any other provision of law to the contrary, the
exemption in subdivision one of section seventy-six hundred five of this
chapter shall apply to persons employed on a full-time or part-time
salary basis, which may include on an hourly, weekly, or monthly basis,
or on a fee for evaluation services basis provided that such person is
employed by and under the dominion and control of a center-based program
approved pursuant to subdivision nine of this section as a certified
school psychologist to provide activities, services and use of the title
psychologist to students enrolled in such approved center-based program;
and to certified school psychologists employed on a full-time or
part-time salary basis, which may include on an hourly, weekly, or
monthly basis, or on a fee for evaluation services basis provided that
the school psychologist is employed by and under the dominion and
control of a program that has been approved pursuant to paragraph b of
subdivision nine of this section, or subdivision nine-a of this section,
to conduct a multi-disciplinary evaluation of a preschool child having
or suspected of having a disability where authorized by paragraph a or b
of subdivision six of section sixty-five hundred three-b of this
chapter; and to certified school psychologists employed on a full-time
or part-time salary basis, which may include on an hourly, weekly, or
monthly basis, or on a fee for evaluation services basis provided that
such psychologist is employed by and under the dominion and control of
an agency approved in accordance with title two-A of article twenty-five
of the public health law to deliver early intervention program
multidisciplinary evaluations, service coordination services and early
intervention program services, where authorized by paragraph a or b of
subdivision six of section sixty-five hundred three-b of this chapter,
each in the course of their employment. Nothing in this section shall be
construed to authorize a certified school psychologist or group of such
school psychologists to engage in independent practice or practice
outside of an employment relationship.
* NB Effective until June 30, 2024
* d. Notwithstanding any other provision of law to the contrary, the
exemption in subdivision one of section seventy-six hundred five of this
chapter shall apply to persons employed by a center-based program
approved pursuant to subdivision nine of this section as a school
psychologist to provide activities, services and use of the title
psychologist to students enrolled in such approved center-based program
in the course of their employment.
* NB Effective June 30, 2024
7. Appeals. * a. The parent may file a written request with the board
for an impartial hearing with respect to any matter relating to the
identification, evaluation or educational placement of, or provision of
a free appropriate public education to, the preschool child or a
manifestation determination or other matter relating to the preschool
child's placement upon discipline, provided, however, that mediation
shall be available to the parent in accordance with the procedures
specified in section forty-four hundred four-a of this article.
* NB Effective until June 30, 2024
* a. If the determination of the board is not acceptable to the
parent, or if the committee or board fails to make or effectuate such a
recommendation within such periods of time as are required by
subdivision five of this section or by the regulations of the
commissioner, such parent may file a written request with the board for
an impartial hearing, provided, however, that mediation shall be
available to the parent in accordance with the procedures specified in
section forty-four hundred four-a of this article.
* NB Effective June 30, 2024
* b. Upon receipt of such request, the board shall provide for a
hearing to be conducted in accordance with the provisions of subdivision
one of section forty-four hundred four of this article. The impartial
hearing officer shall render a decision, and mail a copy of the decision
to the parents and to the board, not later than thirty calendar days
after the receipt by the board of a request for a hearing or after the
initiation of such a hearing by the board. The decision of the impartial
hearing officer shall be based solely upon the record of the proceeding
before the impartial hearing officer, and shall set forth the reasons
and the factual basis for the determination. The decision shall also
include a statement advising the parents and the board of the right to
obtain a review of such a decision by a state review officer. The board
may initiate a hearing to the extent provided in subdivision one of
section forty-four hundred four of this article.
* NB Effective until June 30, 2024
* b. Upon receipt of such request, the board shall provide for a
hearing to be conducted in accordance with the provisions of subdivision
one of section forty-four hundred four of this article. The impartial
hearing officer shall render a decision, and mail a copy of the decision
to the parents and to the board, not later than thirty calendar days
after the receipt by the board of a request for a hearing or after the
initiation of such a hearing by the board. The decision of the impartial
hearing officer shall be based solely upon the record of the proceeding
before the impartial hearing officer, and shall set forth the reasons
and the factual basis for the determination. The decision shall also
include a statement advising the parents and the board of the right to
obtain a review of such a decision by a state review officer.
* NB Effective June 30, 2024
* c. During the pendency of an appeal pursuant to this subdivision,
unless the board and the parent otherwise agree:
(i) a preschool child who has received services pursuant to
subdivision five of this section, shall remain in the current
educational placement; or
(ii) a preschool child not previously served pursuant to this section
shall, if the parent agrees, receive services in the program designated
by the board pursuant to such subdivision five, which designation
resulted in such appeal.
A preschool child who is transitioning from part C of the individuals
with disabilities education act and/or title two-A of article
twenty-five of the public health law and is no longer eligible for
services under part C and title two-A of article twenty-five of the
public health law by reason of age, the school district or other public
agency is not required to provide the services that the child had been
receiving under part C and such title two-A. If the child is found
eligible for special education programs and services pursuant to this
section, and the parent or person in parental relation consents to the
initial provision of services, then the school district or other public
agency shall provide those special education programs and services that
are not in dispute between the parent and the school district or other
public agency.
* NB Effective until June 30, 2024
* c. During the pendency of an appeal pursuant to this subdivision,
unless the board and the parent otherwise agree:
(i) a preschool child who has received services pursuant to
subdivision five of this section, shall remain in the current
educational placement; or
(ii) a preschool child not previously served pursuant to this section
shall, if the parent agrees, receive services in the program designated
by the board pursuant to such subdivision five, which designation
resulted in such appeal; or
(iii) a preschool child who received services pursuant to section two
hundred thirty-six of the family court act during the previous year may
receive, from the provider of such services, preschool special education
services in an approved program appropriate to the needs of such child.
* NB Effective June 30, 2024
d. A state review officer of the education department shall review the
decision of the impartial hearing officer in the manner prescribed in
subdivision two of section forty-four hundred four of this article and
render a decision no later than thirty days after the decision of such
hearing officer.
e. Review of the final determination or order of the state review
officer may be brought in the manner prescribed in subdivision three of
section forty-four hundred four of this article.
8. Transportation. The municipality in which a preschool child resides
shall, beginning with the first day of service, provide either directly
or by contract for suitable transportation, as determined by the board,
to and from special services or programs; provided, however, that if the
municipality is a city with a population of one million or more persons
the municipality may delegate the authority to provide such
transportation to the board; and provided further, that prior to
providing such transportation directly or contracting with another
entity to provide such transportation, such municipality or board shall
request and encourage the parents to transport their children at public
expense, where cost-effective, at a rate per mile or a public service
fare established by the municipality and approved by the commissioner.
Except as otherwise provided in this section, the parents' inability or
declination to transport their child shall in no way affect the
municipality's or board's responsibility to provide recommended
services. Such transportation shall be provided once daily from the
child care location to the special service or program and once daily
from the special service or program to the child care location up to
fifty miles from the child care location. If the board determines that a
child must receive special services and programs at a location greater
than fifty miles from the child care location, it shall request approval
of the commissioner. For the purposes of this subdivision, the term
"child care location" shall mean a child's home or a place where care
for less than twenty-four hours a day is provided on a regular basis and
includes, but is not limited to, a variety of child care services such
as day care centers, family day care homes and in-home care by persons
other than parents. All transportation of such children shall be
provided pursuant to the procedures set forth in section two hundred
thirty-six of the family court act using the date called for in the
written notice of determination of the board or the date of the written
notice of determination of the board, whichever comes later, in lieu of
the date the court order was issued. Notwithstanding this subdivision or
any provision of law to the contrary, transportation expenses incurred
by a municipality for operating and maintenance costs pursuant to this
subdivision during the period between the issuance of executive order
202.4 on March sixteenth, two thousand twenty and the issuance of
executive order 202.28 on May seventh, two thousand twenty shall be
reimbursable and considered approved costs in accordance with the
provisions of this section and the regulations of the commissioner.
9. Program approval. a. Providers of special services or programs
shall apply to the commissioner for program approval on a form
prescribed by the commissioner; such application shall include, but not
be limited to, a listing of the services to be provided, the population
to be served, a plan for providing services in the least restrictive
environment and a description of its evaluation component, if any. The
commissioner shall approve programs in accordance with regulations
adopted for such purpose and shall periodically review such programs at
which time the commissioner shall provide the municipality in which the
program is located or for which the municipality bears fiscal
responsibility an opportunity for comment within thirty days of the
review. In collaboration with municipalities and representatives of
approved programs, the commissioner shall develop procedures for
conducting such reviews. Municipalities shall be allowed to participate
in such departmental review process. Such review shall be conducted by
individuals with appropriate experience as determined by the
commissioner and shall be conducted not more than once every three
years.
(iii) Commencing July first, nineteen hundred ninety-six and
continuing through June thirtieth, two thousand three, a moratorium on
the approval of any new or expanded programs in settings which include
only preschool children with disabilities is established. Exceptions
shall be made for cases in which school districts document a critical
need for a new or expanded program in a setting which includes only
preschool children with disabilities, to meet the projected demand for
services for preschool children in the least restrictive environment.
Applications for new or expanded programs may be made directly to the
state education department. Nothing herein shall prohibit the
commissioner from approving the modification of a full-day program into
half-day sessions.
Commencing July 1, 1999 the department shall only approve any new or
expanded programs in settings which include only preschool children with
disabilities, if the applicant can document a critical need for a new or
expanded program in a setting which includes only preschool children
with disabilities to meet the projected demand for services for
preschool children in the least restrictive environment. If the
department determines that approval will not be granted, it must notify
the applicant, in writing, of its reasons for not granting such
approval. The department shall establish guidelines, within 90 days of
the effective date of this section which shall state the criteria used
to determine if the applicant has demonstrated such a critical need. The
department is authorized to consult with the local school district to
verify any data submitted.
On December 1, 2003 the commissioner shall submit a report to the
board of regents, the majority leader of the senate, the speaker of the
assembly and governor evaluating the impact of such moratorium on the
availability of preschool special education services. The report shall
include: (i) information regarding the number of applications for new
programs and program expansions and the disposition of those
applications by the commissioner; (ii) an assessment of the projected
need for additional classes serving only disabled children and those
serving disabled children with their non-disabled peers and in other
less restrictive settings; (iii) an assessment of the projected need for
additional programs due to program closings in the region, number of
children receiving early intervention services and existing waiting
lists; (iv) an assessment of the distance that children must be
transported to receive preschool special education services; (v) an
evaluation of the programmatic performance and cost-effectiveness of
existing programs; (vi) recommendations regarding ways in which improved
quality and cost-effectiveness could be achieved through the selective
expansion of effective programs and/or the curtailment of less effective
programs; and (vii) an assessment of the availability and effectiveness
of approved programs providing services to preschool children with
autism.
b. As part of an application submitted pursuant to paragraph a of this
subdivision, a provider of special services or programs shall submit a
description of its multi-disciplinary evaluation component, if any,
which shall be subject to the approval of the commissioner in accordance
with regulations adopted for such purpose after consultation with the
appropriate advisory committee. Such components or program may rely in
part on formal written agreements or affiliations with appropriately
certified or licensed professionals, or agencies employing such
professionals, provided that such professionals or agencies perform
their responsibilities in conformance with regulations of the
commissioner and that providers fully disclose any such arrangements on
all applications for program approval, and provided further that the
provider certifies that it shall apply for and obtain a waiver pursuant
to section sixty-five hundred three-b of this chapter prior to providing
evaluation services pursuant to such written agreements or affiliations.
Nothing herein shall require a provider of special services or programs
to have a multidisciplinary evaluation program.
c. Municipalities, or in the case of a city of one million or more
persons, the board, shall maintain a list of appropriately certified or
licensed professionals to deliver related services consistent with this
section and the regulations of the commissioner and shall determine
reasonable reimbursement for such services subject to the approval of
the commissioner. Such list shall also include reasonable reimbursement,
as determined by the municipality and approved by the commissioner and
the director of the budget, for the coordination of two or more related
services pursuant to paragraph d of subdivision five of this section.
d. Providers may make application to conduct a program that relies on
formal written agreements or affiliations with other approved programs
or appropriately certified or licensed professionals, provided that such
arrangements are fully disclosed on all applications to the commissioner
for program approval, and provided further that the provider certifies
it shall apply for and obtain a waiver pursuant to section sixty-five
hundred three-b of this chapter prior to providing related services
pursuant to any such written agreements or affiliations involving
licensed professionals.
e. Nothing herein shall preclude an approved program from providing
services in the preschool child's home.
f. As part of an application submitted pursuant to paragraph a of this
subdivision, a provider of special services or programs shall describe
any program in which preschool children will receive services in
conjunction with children placed pursuant to section two hundred
thirty-six of the family court act or title II-A of article twenty-five
of the public health law. If such preschool program otherwise meets the
criteria for approval of preschool programs established by regulations
of the commissioner, the commissioner shall approve such program.
g. As part of an application submitted pursuant to paragraph a of this
subdivision, a provider of special services or programs shall certify
pursuant to regulations promulgated by the commissioner that it will
take measures to ensure its executive director or person performing the
duties of a chief executive officer: (i) meets the criteria established
by the commissioner to be an executive director; and (ii) if paid as a
full time executive director, he or she is employed in a full time, full
year position and shall not engage in activity that would interfere with
or impair such executive director's ability to carry out and perform his
or her duties, responsibilities and obligations.
* 9-a.
(a) A group of appropriately licensed and/or certified
professionals associated with a public or private agency may apply to
the commissioner for approval as an evaluator on a form prescribed by
the commissioner. The commissioner shall approve evaluators pursuant to
this subdivision consistent with the approval process for the
multi-disciplinary evaluation component of programs approved pursuant to
subdivision nine of this section consistent with regulations adopted
pursuant to such subdivision. All school districts are deemed approved
evaluators of preschool students suspected of having a disability
without the need to submit an application to the commissioner if staff
who provide such evaluation services shall have appropriate licensure
and/or certification.
Such application shall include, but not be limited to, a description
of the multi-disciplinary evaluation services proposed to be provided
and a demonstration that all agency employees and staff who provide such
evaluation services shall have appropriate licensure and/or
certification and that the individual who shall have direct supervision
responsibilities over such staff shall have an appropriate level of
experience in providing evaluation or services to preschool or
kindergarten-aged children with disabilities. To be eligible for
approval as an evaluator under this subdivision on and after July first,
two thousand eleven, a group of appropriately licensed or certified
professionals shall be formed as a limited liability company or
professional services corporation established pursuant to article
fifteen of the business corporation law, article twelve or thirteen of
the limited liability company law or article eight-B of the partnership
law. The approval of any groups of licensed or certified professionals
that are in existence on July first, two thousand eleven and would not
be eligible for approval thereafter shall terminate on July first, two
thousand thirteen.
(b) The commissioner shall periodically review such evaluators at
which time the commissioner shall provide the municipality in which the
evaluator is located an opportunity for comment.
(c) The commissioner shall establish a billing and reimbursement
system for services provided by school districts and evaluators approved
pursuant to the provisions of this subdivision consistent with billing
and reimbursement for evaluation services provided by evaluators
approved pursuant to the provisions of subdivision nine of this section.
* NB Repealed July 1, 2024
9-b. Program reapproval process. The commissioner shall periodically
review and reapprove programs, including the provision of evaluation
services, in accordance with regulations adopted for such purpose, which
shall include reapproval criteria designed to assure that quality
services are provided in a necessary and cost efficient manner and in
the least restrictive environment which may include settings in which
age-appropriate peers without disabilities are typically found. In
reviewing programs and the provision of evaluation services, the
commissioner shall consider factors including, but not limited to, the
percentage of children receiving services from the approved program that
conducted the evaluation of the child; and whether there has been
evidence of misleading or erroneous advertising. The division of the
budget shall consider in a timely manner all requests submitted by the
department to hire sufficient staff to conduct such periodic reapproval
of programs, as determined by the commissioner, using available federal
funds.
Such reapproval process shall provide the municipality in which the
program is located or for which the municipality bears fiscal
responsibility, an opportunity for comment thirty or more days prior to
completion of the reapproval. In collaboration with municipalities and
representatives of approved programs, the commissioner shall develop
procedures for conducting such reapprovals. Municipalities shall be
allowed to participate in such departmental review process. Such
reapprovals shall be conducted by individuals with appropriate
experience as determined by the commissioner and shall be conducted not
more than once every three years, unless the commissioner, on his or her
own initiative or at the request of a municipality, determined that
reapprovals are earlier or more frequently required. The commissioner
shall commence such reapproval process no later than January fifteenth,
nineteen hundred ninety-seven. Program reapprovals may result in
disapproval of the entire program or a component of the program,
including but not limited to the evaluation component. In reapproving a
program component, such approval criteria shall include, but not be
limited to:
a. the extent to which the program offers services in settings with
regular contact with age-appropriate peers, where appropriate to the
needs of the population served; and
b. whether there has been evidence of misleading or erroneous
advertising.
Such reapproval shall assure an appropriate opportunity to be heard on
the findings of the reapproval and the opportunity to address such
findings through corrective or remedial action, where applicable. Such
reapproval process shall also provide for the determination of action on
the part of the department to address the findings of the reapproval
which may include, but not be limited to, the withdrawal of approval to
provide evaluation services.
9-c. Advertising. The commissioner is authorized to require approved
programs and evaluators to periodically submit copies of advertising for
review, and to commence a proceeding to revoke the approval of an
approved program or evaluator pursuant to this subdivision for false,
misleading, deceptive or fraudulent advertising pursuant to regulations
to be promulgated by the commissioner, which shall be consistent with
article twenty-two-a of the general business law. Such regulations shall
prohibit advertisements from including misleading or erroneous
information with respect to services to be provided to preschool
children and their families. The department shall issue guidelines as to
appropriate advertising content. In a revocation proceeding, such
guidelines shall not be presumptive evidence that particular advertising
is appropriate.
9-d. Business plans. Approved providers of special services and
programs, including local educational agencies, shall develop and submit
to the commissioner, by January first, nineteen hundred ninety-seven, a
business plan, the contents of which shall be determined by the
commissioner, which redirects fiscal and personnel resources toward
providing special education programs and services in settings with
children who do not have disabilities, and reduces the reliance on
programs and settings which include only preschool children with
disabilities.
10. Approved costs. a. (i) (A) Commencing with the nineteen hundred
ninety--ninety-one school year, the commissioner shall annually
determine the tuition rate for approved services or programs provided to
preschool children pursuant to this section. Such rates for providers of
such services and programs shall be determined in conformance with a
methodology established pursuant to subdivision four of section
forty-four hundred five of this article after consultation with and a
review of an annual report prepared by the advisory committee
established pursuant to paragraph a of subdivision twelve of this
section and shall be subject to the approval of the director of the
budget. Notwithstanding any other provision of law, rule or regulation
to the contrary, tuition rates established for the nineteen hundred
ninety-five--ninety-six school year shall exclude the two percent cost
of living adjustment authorized in rates established for the nineteen
hundred ninety-four--ninety-five school year.
(B) Commencing with the two thousand fifteen--two thousand sixteen
school year, such special education itinerant services shall be provided
by approved programs, and such approved programs shall be reimbursed for
such services based on the actual attendance of preschool children
receiving such services.
(C) Notwithstanding any other provision of law, rule or regulation to
the contrary, on or before the two thousand sixteen--two thousand
seventeen school year and thereafter, to be phased-in over no more than
four years from such starting year, the commissioner, subject to the
approval of the director of the budget, shall establish regional tuition
rates for special education itinerant services based on average actual
costs in accordance with a methodology established pursuant to
subdivision four of section forty-four hundred five of this article.
* (D) Notwithstanding any other provision of law, rule or regulation
to the contrary, commencing with the two thousand eighteen--two thousand
nineteen school year, approved preschool integrated special class
programs shall be reimbursed for such services based on an alternative
methodology for reimbursement to be established by the commissioner. In
developing such methodology the commissioner shall seek input from
stakeholders that would be impacted by such alternative methodology. The
alternative methodology, subject to the approval of the director of the
budget, shall be proposed by the department no later than April first,
two thousand eighteen.
* NB Effective July 1, 2017
(ii) Upon request, the commissioner shall, on a timely basis, transmit
to the municipality in which an approved program is located any
information provided by such approved program for the purpose of
establishing a rate for the program.
(iii) Following determination of tuition rates pursuant to
subparagraph (i) of this paragraph, the commissioner shall submit such
rates to the director of the budget for approval and shall
simultaneously transmit to each municipality the rates for programs
located in the municipality. Within thirty calendar days of the
commissioner's transmittal date, the municipality may submit comments in
writing to the commissioner. The commissioner shall consider such
comments and, if he deems it appropriate, adjust such rate prior to
final action by the director of the budget. If the commissioner does not
adjust the rate, the commissioner shall respond to the comments
presented by the municipality.
b. Reimbursement for evaluations conducted by approved evaluators
shall be provided pursuant to regulations of the commissioner after
consultation with the advisory committee established pursuant to
paragraph a of subdivision twelve of this section and shall be subject
to approval by the director of the budget.
c. Approved costs for transportation shall be the costs incurred by
the municipality in accordance with the provisions of subdivision eight
of this section. The commissioner shall establish, in consultation with
the municipalities, and with the approval of the director of the budget,
regional ceilings for each region of the state, as defined by the
commissioner, on the maximum allowable state reimbursement. In
developing such ceilings, the commissioner shall consider the size of
the geographic area to be served, the projected number of children
requiring transportation services and such other factors as the
commissioner shall determine may influence the cost of transportation
services.
d. (i) At the beginning of the school year, the commissioner shall
allocate funds for reimbursement of allowable administrative costs, as
defined in regulations of the commissioner, incurred by a board pursuant
to this section. Such allocation shall be in an amount equal to a school
district's pro rata share of the statewide base year count of preschool
children as a percent of federal funds available for such reimbursement,
as determined by the commissioner. In January of any school year in
which additional federal funds are determined by the commissioner to be
available for such reimbursement, the commissioner shall equitably
allocate such funds for reimbursement of allowable administrative costs,
in a manner determined by the commissioner which is consistent with
federal statutes and regulations governing the use of federal funds, to
school districts which have demonstrated a need for such additional
funds. At the close of the school year for which such funds were
allocated, each board shall submit, in a form prescribed by the
commissioner, a statement of the allowable administrative costs incurred
pursuant to this section. A board may, subject to approval of the
commissioner, submit any allowable administrative costs for which
federal funds are not allocated to that school district pursuant to this
subdivision to the appropriate municipality or municipalities for
reimbursement pursuant to subdivision eleven of this section.
(ii) Boards may submit reasonable costs incurred pursuant to
paragraphs a through d of subdivision seven of this section to the
appropriate municipality for reimbursement. Boards may also submit to
the appropriate municipality for reimbursement of reasonable costs
incurred pursuant to paragraph e of subdivision seven of this section:
(A) in an action or proceeding brought by another party or (B) in an
action or proceeding brought by the board, other than an action or
proceeding brought against the state, a department, board or agency of
the state or a state officer, except where such state defendant is
joined as a necessary party to such action or proceeding, if, upon final
disposition of the action or proceeding, the board receives a judgment
in its favor annulling the determination or order of the state review
officer. The municipality shall be reimbursed for payment of such costs
pursuant to subdivision eleven of this section.
(iii) On or after July first, nineteen hundred ninety, and annually
thereafter until June thirtieth, two thousand one, municipalities shall
be eligible for reimbursement for administrative costs incurred during
the preceding year of fifty dollars for each eligible preschool child
served in such year pursuant to this section. On or after July first,
two thousand one, and annually thereafter, municipalities shall be
eligible for reimbursement for administrative costs incurred during the
preceding year of seventy-five dollars for each eligible preschool child
served in such year pursuant to this section. Each municipality shall
submit a claim in a form prescribed by the commissioner. Upon approval,
reimbursement shall be made by the commissioner from appropriations
available therefor. Such reimbursement shall be made in the first
instance from any federal funds designated under federal law for local
use, as determined by the commissioner, that are available after
satisfying the provisions of subparagraph (i) of this paragraph. To the
extent that such federal funds are not sufficient or available to
reimburse a municipality for such costs, reimbursement shall be made
with state funds.
e. Public special education funding provided for the purposes of this
section shall not be used to purchase regular preschool educational
services, day care or other child care services, or to purchase any
instructional service other than special services or programs as defined
in subdivision two of section forty-four hundred one of this article or
in this section, and the purchase of such regular preschool educational
services and child care services shall not be approvable pursuant to
this section as a charge upon the municipality or the board.
11. Financial responsibility for approved costs. a. The approved costs
for a preschool child who receives services pursuant to this section
shall be a charge upon the municipality wherein such child resides. All
approved costs shall be paid in the first instance and at least
quarterly by the appropriate governing body or officer of the
municipality upon vouchers presented and audited in the same manner as
the case of other claims against the municipality. Notwithstanding any
inconsistent provisions of this section, upon notification by the
commissioner, a municipality may withhold payments due any provider for
services rendered to preschool children in a program for which the
commissioner has been unable to establish a tuition rate due to the
failure of the provider to file complete and accurate reports for such
purpose, as required by the commissioner.
b. (i) Commencing with the reimbursement of municipalities for
services provided pursuant to this section on or after July first,
nineteen hundred ninety-three, the state shall reimburse fifty-nine and
one half percent of the approved costs paid by a municipality for the
purposes of this section. Commencing with the reimbursement of
municipalities for services provided pursuant to this section on or
after July first, nineteen hundred ninety-four, the state shall
reimburse sixty-nine and one-half percent of the approved costs paid by
a municipality for the purposes of this section. The state shall
reimburse fifty percent of the approved costs paid by a municipality for
the purposes of this section for services provided prior to July first,
nineteen hundred ninety-three. Such state reimbursement to the
municipality shall not be paid prior to April first of the school year
in which such approved costs are paid by the municipality.
(ii) In accordance with a schedule adopted by the commissioner, each
municipality which has been notified by a board of its obligation to
contract for the provision of approved special services or programs for
a preschool child shall be provided with a listing of all such children
by the commissioner. Such list shall include approved services and costs
as prescribed by the commissioner for each such child for whom the
municipality shall certify, on such list, the amount expended for such
purposes and the date of expenditure. Upon the receipt of such certified
statement, the commissioner shall examine the same, and if such
expenditures were made as required by this section, the commissioner
shall approve it and transmit it to the comptroller for audit. The
comptroller shall thereupon issue his warrant, in the amount specified
in such approved statement for the payment thereof out of moneys
appropriated therefor, to the municipal treasurer or chief fiscal
officer as the case may be.
(iii) (a) Notwithstanding the provisions of this paragraph, any monies
due municipalities pursuant to this paragraph for services provided
during the two thousand eight--two thousand nine and prior school years
shall be reduced by an amount equal to the product of the percentage of
the approved costs reimbursed by the state pursuant to subparagraph (i)
of this paragraph and any federal participation, pursuant to title XIX
of the social security act, in special education programs provided
pursuant to this section. The commissioner shall deduct such amount, as
certified by the commissioner of health as the authorized fiscal agent
of the state education department. Such deductions shall be made in
accordance with a plan developed by the commissioner and approved by the
director of the budget. To the extent that such deductions exceed moneys
owed to the municipality pursuant to this paragraph, such excess shall
be deducted from any other payments due the municipality.
(b) Any moneys due municipalities pursuant to this paragraph for
services provided during the two thousand nine--two thousand ten school
year and thereafter, or for services provided in a prior school year
that were not reimbursed by the state on or before April first, two
thousand eleven, shall, in the first instance, be designated as the
state share of moneys due a municipality pursuant to title XIX of the
social security act, on account of school supportive health services
provided to preschool students with disabilities pursuant to this
section. Such state share shall be assigned on behalf of municipalities
to the department of health, as provided herein; the amount designated
as such nonfederal share shall be transferred by the commissioner to the
department of health based on the monthly report of the commissioner of
health to the commissioner; and any remaining moneys to be apportioned
to a municipality pursuant to this section shall be paid in accordance
with this section. The amount to be assigned to the department of
health, as determined by the commissioner of health, for any
municipality shall not exceed the federal share of any moneys due such
municipality pursuant to title XIX of the social security act. Moneys
designated as state share moneys shall be paid to such municipality by
the department of health based on the submission and approval of claims
related to such school supportive health services, in the manner
provided by law.
(iv) Notwithstanding any other provision of law to the contrary, no
payments shall be made by the commissioner pursuant to this section on
or after July first, nineteen hundred ninety-six based on a claim for
services provided during school years nineteen hundred
eighty-nine--ninety, nineteen hundred ninety--ninety-one, nineteen
hundred ninety-one-ninety-two, nineteen hundred
ninety-two--ninety-three, nineteen hundred ninety-three--ninety-four,
and nineteen hundred ninety-four--ninety-five which is submitted later
than two years after the end of the nineteen hundred
ninety-five--ninety-six school year; provided, however, that no payment
shall be barred or reduced where such payment is required as a result of
a court order or judgment or a final audit, and provided further that
the commissioner may grant a waiver to a municipality excusing the late
filing of such a claim upon a finding that the delay was caused by a
party other than the municipality or a board to which the municipality
delegated authority pursuant to paragraph f of subdivision five or
subdivision eight of this section.
(v) Notwithstanding any other provision of law to the contrary, no
payments shall be made by the commissioner pursuant to this section on
or after July first, nineteen hundred ninety-six based on a claim for
services provided in the nineteen hundred ninety-five--ninety-six school
year or thereafter which is submitted later than three years after the
end of the school year in which services were rendered, provided,
however, that no payment shall be barred or reduced where such payment
is required as a result of a court order or judgment or a final audit,
and provided further that the commissioner may grant a waiver to a
municipality excusing the late filing of such a claim upon a finding
that the delay was caused by a party other than the municipality or a
board to which the municipality delegates authority pursuant to
paragraph f of subdivision five or subdivision eight of this section.
(vi) Notwithstanding any other provision of law to the contrary,
beginning with state reimbursement otherwise payable in the two thousand
six--two thousand seven state fiscal year and in each year thereafter,
payments pursuant to this section, subject to county agreement and in
the amounts specified in such agreement, shall be paid no later than
June thirtieth of the state fiscal year next following the state fiscal
year in which such reimbursement was otherwise eligible for payment and
in which the liability to the county for such state reimbursement
accrued, provided that such payments in a subsequent state fiscal year
shall be recognized by the state and the applicable county as satisfying
the state reimbursement obligation for the prior state fiscal year. Any
unspent amount associated with such county agreements shall not be
available for payments to other counties or municipalities.
c. (i) Each municipality, or, in addition, in the case of a city of
one million or more persons, the board, may perform a fiscal audit of
such services or programs for which it bears fiscal responsibility in
accordance with audit standards established by the commissioner, which
may include site visitation. The department shall provide guidelines on
standards and procedures to municipalities and boards, for fiscal audits
of services or programs pursuant to this section. Prior to commencing a
fiscal audit pursuant to this subparagraph, a municipality shall
ascertain that neither the state nor any other municipality has
performed a fiscal audit of the same services or programs within the
current fiscal year for such program. If it is determined that no such
audit has been performed, the municipality shall inquire with the
department to determine which other municipalities, if any, bear
financial responsibility for the services or programs to be audited and
shall afford such other municipalities an opportunity to recommend
issues to be examined through the audit. Municipalities completing
audits pursuant to this subparagraph shall provide copies to the
department, the provider of the services and programs and all other
municipalities previously determined to bear financial responsibility
for the audited services and programs. No other municipality may conduct
an additional fiscal audit of the same services or programs during such
current fiscal year for such program.
(ii) Payments made pursuant to this section by a municipality shall,
upon conclusion of the July first to June thirtieth school year for
which such payment was made, be subject to audit against the actual
difference between such audited expenditures and revenues. The
municipality shall submit the results of any such audit to the
commissioner and the commissioner of social services, if appropriate,
for review and, if warranted, adjustment of the tuition and/or
maintenance rates. The municipality is authorized to recover
overpayments made to a provider of special services or programs pursuant
to this section as determined by the commissioner or the commissioner of
health based upon their adjustment of a tuition and/or maintenance rate,
provided that for purposes of making such adjustment and recovery, the
municipality shall be deemed to have paid one hundred percent of the
disallowed costs. Such recovery may be accomplished by withholding such
amount from any moneys due the provider in the current year, or by
direct reimbursement. The commissioner shall promulgate rules and
regulations necessary to implement the provisions of this paragraph
within sixty days of the effective date of the chapter of the laws of
two thousand thirteen which amended this subparagraph.
12. Advisory committees. a. The commissioner shall establish an
advisory committee consisting of representatives of municipalities to
advise the commissioner on establishing the rate methodology authorized
by subdivision ten of this section.
b. The commissioner shall establish such other advisory committees as
he deems necessary to implement the provisions of this section.
13. a. The commissioner shall adopt regulations to implement the
provisions of this section. Such regulations shall include:
(i) regional cost ceilings on average per pupil transportation cost
for the reimbursement of transportation expenditures, where regions
shall be as defined by the commissioner;
(ii) the requirement that committees identify transportation options
for preschool children, consistent with this article, including
encouraging parents to transport their children at public expense where
cost-effective; and
(iii) the requirement that each program approved pursuant to the
provisions of this section shall make application to the commissioner
for approval to provide special education itinerant services.
b. The commissioner shall ensure that eligibility criteria are
consistently applied.
c. The commissioner shall, in consultation with clinicians trained in
early childhood educational services, municipal representatives,
representatives of parents of children requiring preschool and school
age special education services, representatives of statewide and
regional provider organizations, academic experts concerned with the
provision of special education services, and such other early childhood
education professionals as the commissioner shall deem appropriate,
develop clinical practice guidelines for the purpose of assisting
evaluators with respect to appropriate diagnosis and evaluation, and
committees with respect to the type, frequency and duration of services.
The commissioner may at his or her own discretion use existing advisory
committees and may add additional members to develop these guidelines.
Such guidelines shall be designed to assure that appropriate services
are provided in a manner which is necessary and cost efficient, and in
the least restrictive environment, and shall promote the education of
children in integrated settings with children who do not have
disabilities insofar as possible and appropriate, including through the
provision of related services or special education itinerant services.
* d. The commissioner shall establish procedures for administrative
appeals to resolve interagency disputes between boards and
municipalities over responsibility for provision of, or payment for,
special education programs or services to preschool children with
disabilities. During the pendency of any such appeal, the board or,
where applicable, a state department or agency responsible for
developing the preschool child's individualized education program, shall
provide and pay for the special education programs and services on the
preschool child's individualized education program and may seek
reimbursement in the appeal. The commissioner shall be authorized to
make all orders that in the commissioner's judgment are proper or
necessary to give effect to the decision in the appeal. Upon a
determination that a public agency has failed to provide or pay for such
special education programs and services, the commissioner shall certify
the amount of such costs to the state comptroller and the state
comptroller to deduct such amount from any state funds that become due
to such public agency.
* NB Repealed June 30, 2024
Structure New York Laws
Title 6 - Special Schools and Instruction
Article 89 - Children With Handicapping Conditions
4401-A - Referral and Evaluation for Special Education Services or Programs.
4402 - Duties of School Districts.
4403 - Duties of Education Department.
4404 - Appeal Procedures for Children With Handicapping Conditions.
4404-A - Mediation Program for Students With Disabilities.
4406 - Procedures Through the Family Court; Cost of Certain Educational Services.
4407 - Special Provisions Relating to Instruction of Certain Children With Handicapping Conditions.
4408 - Payment for July and August Programs for Students With Disabilities.
4410 - Special Education Services and Programs for Preschool Children With Handicapping Conditions.