STATE OF NEW YORK
________________________________________________________________________
4041--A
Cal. No. 406
2023-2024 Regular Sessions
IN SENATE
February 2, 2023
___________
Introduced by Sens. MAYER, GOUNARDES, JACKSON, LIU, MANNION -- read
twice and ordered printed, and when printed to be committed to the
Committee on Education -- reported favorably from said committee,
ordered to first and second report, ordered to a third reading, passed
by Senate and delivered to the Assembly, recalled, vote reconsidered,
restored to third reading, amended and ordered reprinted, retaining
its place in the order of third reading
AN ACT to amend the education law, in relation to replacing the words
handicapping conditions with the word disabilities
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. The article heading of article 89 of the education law, as
2 added by chapter 853 of the laws of 1976, is amended to read as follows:
3 CHILDREN WITH [HANDICAPPING CONDITIONS] DISABILITIES
4 § 2. Subdivisions 3 and 4 of section 4401 of the education law, subdi-
5 vision 3 as amended by chapter 563 of the laws of 1980 and subdivision 4
6 as amended by chapter 367 of the laws of 1979, are amended to read as
7 follows:
8 3. "Maintenance". For purposes of this article "maintenance" shall
9 mean the amount charged for room and board and allocable debt service as
10 determined by the commissioner for the living unit of the residential
11 facility by a residential school and such reasonable medical expenses
12 actually and necessarily incurred by a [handicapped] child with disabil-
13 ities while actually in attendance at a residential school, provided
14 that such medical expenses shall be for diagnostic, evaluative, educa-
15 tionally related, and emergency care services as defined by regulations
16 of the commissioner. Such amount, which shall not include expenses
17 which are otherwise reimbursable to a residential facility by a federal,
18 state or local agency, shall be approved by the commissioner of social
19 services and the director of the division of the budget and shall not be
20 otherwise payable or reimbursable.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD08394-03-3
S. 4041--A 2
1 4. "Transportation expense." For the purposes of determining transpor-
2 tation aid pursuant to this article, "transportation expense" shall mean
3 any cost incurred by the school district for the transportation of a
4 [handicapped] child with disabilities pursuant to the provisions of
5 subdivision four of section forty-four hundred two of this article,
6 notwithstanding any minimum or maximum aidable limits established by
7 other provisions of the education law or pursuant to regulations of the
8 commissioner or school district, allowed pursuant to the applicable
9 provisions of parts two and three of article seventy-three of this chap-
10 ter, provided, however, that such transportation shall not be in excess
11 of fifty miles from the home of such pupil to the appropriate special
12 service or program unless the commissioner shall certify that no appro-
13 priate non-residential special service or program is available within
14 such fifty miles, and that the commissioner may establish by regulation
15 a maximum number of trips between a pupil's home and the private resi-
16 dential school which provides special services or programs to such
17 pupil. Such cost shall include the cost of joint or regional transporta-
18 tion provided by school districts or boards of cooperative educational
19 services for such purposes and subject to the same limits.
20 § 3. Clauses (a),(e) and (g) of subparagraph 3 of paragraph b of
21 subdivision 1 of section 4402 of the education law, clause (a) as
22 amended by chapter 53 of the laws of 1991 and clauses (e) and (g) as
23 amended by chapter 53 of the laws of 1986, are amended to read as
24 follows:
25 (a) Obtain, review and evaluate all relevant information, including
26 but not limited to that presented by the parent, person in parental
27 relationship and teacher, pertinent to each child suspected of or iden-
28 tified as having a [handicapping condition] disability, including the
29 results of a physical examination performed in accordance with sections
30 nine hundred three, nine hundred four and nine hundred five of this
31 chapter and, where determined to be necessary by a school psychologist,
32 an appropriate psychological evaluation performed by a qualified private
33 or school psychologist, and other appropriate assessments as necessary
34 to ascertain the physical, mental, emotional and cultural-educational
35 factors which may contribute to the suspected or identified [handicap-
36 ping condition] disability, and all other school data which bear on the
37 child's progress, including, where appropriate, observation of classroom
38 performance.
39 (e) Make, or have made, periodic evaluations of the adequacy of
40 programs, services and facilities for children with [handicapping condi-
41 tions] disabilities.
42 (g) Provide for the transmittal of information by the board of educa-
43 tion, including such test results and evaluations as the committee may
44 have collected, to the home district of the child with a [handicapping
45 condition] disability in cases where the home school district has
46 contracted for the child's education with another school district or
47 board of cooperative educational services.
48 § 4. Subparagraph 1 of paragraph b of subdivision 2 of section 4402 of
49 the education law, as amended by chapter 642 of the laws of 1987, is
50 amended to read as follows:
51 (1) Provided, however, that in each school district the board of
52 education or trustees of such district are hereby authorized and
53 empowered to contract for such special services or programs as such
54 board shall deem reasonable and appropriate for such [handicapped] chil-
55 dren with disabilities after consideration of the recommendations of the
56 local committee on special education and the hearing officer if a hear-
S. 4041--A 3
1 ing is held pursuant to section forty-four hundred four of this chapter
2 and, where specified in subparagraph two of this paragraph, with the
3 approval of the commissioner after a finding by him that no appropriate
4 special services or programs specified in paragraphs a through d and k
5 of subdivision two of section forty-four hundred one are available.
6 § 5. Paragraphs a and d of subdivision 4 and subdivision 5 of section
7 4402 of the education law, paragraph a of subdivision 4 as amended by
8 chapter 470 of the laws of 1977, paragraph d of subdivision 4 as amended
9 by chapter 646 of the laws of 1992, subdivision 5 as separately amended
10 by chapters 53 and 683 of the laws of 1986, are amended to read as
11 follows:
12 a. The board of education or the board of trustees of each school
13 district shall provide suitable transportation to and from special
14 classes or programs, with the exception of residential facilities for
15 the care and treatment of children with [handicapping conditions] disa-
16 bilities under the jurisdiction of an agency of the state other than the
17 state department of education, as specified in subdivisions two and four
18 of section forty-four hundred one of this article.
19 d. Notwithstanding any other provision of law, such board shall
20 provide suitable transportation up to a distance of fifty miles to and
21 from a nonpublic school which a child with a [handicapping condition]
22 disability attends if such child has been so identified by the local
23 committee on special education and such child attends such school for
24 the purpose of receiving services or programs similar to special educa-
25 tional programs recommended for such child by the local committee on
26 special education.
27 5. Notwithstanding any provisions of this article to the contrary or
28 the provisions of section thirty-two hundred two of this chapter, a
29 child with a [handicapping condition] disability who reaches the age of
30 twenty-one during (a) the period commencing with the first day of July
31 and ending on the thirty-first day of August shall if otherwise eligi-
32 ble, be entitled to continue in a July and August program until the
33 thirty-first day of August or until the termination of the summer
34 program, whichever shall first occur; or (b) the period commencing on
35 the first day of September and ending on the thirtieth day of June shall
36 be entitled to continue in such program until the thirtieth day of June
37 or until the termination of the school year, whichever shall first
38 occur.
39 § 6. Subdivisions 1, 2, 4, 8, 14 and 16 of section 4403 of the educa-
40 tion law, subdivision 1 as amended by chapter 470 of the laws of 1977,
41 subdivision 2 as amended by chapter 53 of the laws of 1986, subdivision
42 4 as amended by chapter 479 of the laws of 2022, subdivision 8 as
43 amended by chapter 273 of the laws of 1986, and subdivisions 14 and 16
44 as amended by section 4 of part E of chapter 501 of the laws of 2012,
45 are amended to read as follows:
46 1. To maintain a statistical summary of the number of [handicapped]
47 children with disabilities who reside within the state and the nature of
48 their [handicaps] disabilities and to use all means and measures neces-
49 sary to adequately meet the physical and educational needs of such chil-
50 dren, as provided by law.
51 2. To stimulate all private and public efforts designed to relieve,
52 care for or educate children with [handicapping conditions] disabilities
53 and to coordinate such efforts with the work and function of govern-
54 mental agencies.
55 4. To periodically inspect, report on the adequacy of and make recom-
56 mendations concerning instructional programs or special services for all
S. 4041--A 4
1 children with [handicapping conditions] disabilities who reside in or
2 attend any state operated or state financed social service facilities,
3 youth facilities, health facilities, mental health, and developmental
4 disabilities facilities or state correctional facilities.
5 8. To develop and distribute a handbook for parents of [handicapped]
6 children with disabilities and the members of committees and subcommit-
7 tees on special education, which handbook shall explain, in layman
8 terms, the financial and educational obligations of the state, the coun-
9 ty or city, the home school district, the committee on special educa-
10 tion, and the parent or legal guardian of a [handicapped] child with
11 disabilities, the special services or programs available pursuant to
12 this article, and the legal procedures available to an aggrieved parent
13 or legal guardian of a [handicapped] child with disabilities.
14 14. To provide technical assistance to school districts to assist in
15 the adaptation of curriculum for the instruction of children with
16 [handicapping conditions] disabilities.
17 16. Commencing with the nineteen hundred eighty-seven--eighty-eight
18 school year, to provide for instruction during the months of July and
19 August of students with [handicapping conditions] disabilities who have
20 received state appointments pursuant to article eighty-five, eighty-sev-
21 en or eighty-eight of this chapter and whose [handicapping conditions]
22 disabilities, in the judgment of the commissioner, are severe enough to
23 exhibit the need for a structured learning environment of twelve months
24 duration to maintain developmental levels, by making such appointments
25 for twelve months; provided that the initial term of appointment of a
26 student with a [handicapping condition] disability who is the minimum
27 age eligible for such a state appointment shall not commence during the
28 months of July or August.
29 § 7. The section heading and subdivision 2 of section 4404 of the
30 education law, as amended by chapter 53 of the laws of 1990, are amended
31 to read as follows:
32 Appeal procedures for children with [handicapping conditions] disabil-
33 ities.
34 2. Review by state review officer. A state review officer of the
35 education department shall review and may modify, in such cases and to
36 the extent that the review officer deems necessary, in order to properly
37 effectuate the purposes of this article, any determination of the impar-
38 tial hearing officer relating to the determination of the nature of a
39 child's [handicapping condition] disability, selection of an appropriate
40 special education program or service and the failure to provide such
41 program and require such board to comply with the provisions of such
42 modification. The commissioner shall adopt regulations governing the
43 practice and procedure in such appeals to the state review officer;
44 provided, however, that in no event shall any fee or charge whatsoever
45 be imposed for any appeal taken pursuant to this subdivision. The state
46 review officer is empowered to make all orders which are proper or
47 necessary to give effect to the decision of the review officer.
48 § 8. The section heading, the opening paragraph of subdivision 1 and
49 subdivisions 2, 3 and 5 of section 4405 of the education law, the
50 section heading and subdivision 2 as amended by chapter 53 of the laws
51 of 1986, the opening paragraph of subdivision 1 and subdivisions 3 and 5
52 as amended by chapter 53 of the laws of 1990, paragraphs a and b of
53 subdivision 3 as amended by chapter 57 of the laws of 1993, paragraph c
54 of subdivision 3 as amended by chapter 82 of the laws of 1995 and para-
55 graph d of subdivision 3 as amended by chapter 260 of the laws of 1993,
56 are amended to read as follows:
S. 4041--A 5
1 Computing financial responsibility for special educational services
2 for certain children with [handicapping conditions] disabilities.
3 Maintenance for children with [handicapping conditions] disabilities
4 in residential schools under the provisions of this article or state
5 schools under the provisions of articles eighty-seven and eighty-eight
6 of this chapter.
7 2. Transportation expense. The transportation expense of each child
8 with a [handicapping condition] disability shall be aidable in accord-
9 ance with subdivision seven of section thirty-six hundred two of this
10 chapter; provided, however, that for the school year commencing July
11 first, nineteen hundred seventy-six, school districts shall be appor-
12 tioned ninety per centum of the estimated amount of its approved costs
13 of such year for the transportation of children with [handicapping
14 conditions] disabilities whose transportation was formerly provided
15 under a family court order and is now a charge upon the school district,
16 subject to the adjustment of any errors after the actual costs are
17 ascertained.
18 3. Computing state financial responsibility for operating expenses for
19 certain children with [handicapping conditions] disabilities.
20 a. In addition to any other apportionments under the provisions of
21 this chapter, there shall be apportioned to each applicable school
22 district for each child with a [handicapping condition] disability in
23 attendance in a state school under the provisions of paragraph d of
24 subdivision two of section forty-four hundred one of this article or an
25 approved program under the provisions of paragraphs e, f, g, h, i and l
26 of such subdivision two, the product of such attendance, computed in
27 accordance with regulations of the commissioner, and the excess cost
28 aid: an amount computed by multiplying the excess cost, as defined in
29 subdivision six of section forty-four hundred one of this article by the
30 excess cost aid ratio defined in subdivision seven of this section.
31 b. In addition to the apportionment provided to a school district
32 pursuant to paragraph a of this subdivision for the attendance of a
33 child with a [handicapping condition] disability in a state school under
34 the provisions of paragraph d of subdivision two of section forty-four
35 hundred one of this article, for each such child in attendance in such
36 school prior to July first, nineteen hundred ninety, there shall be
37 apportioned an additional amount. Such amount shall equal the product of
38 the taper aidable cost multiplied by the taper aid ratio. The taper
39 aidable cost shall equal the positive remainder resulting when (i) the
40 apportionment attributable to such child pursuant to paragraph a of this
41 subdivision is subtracted from (ii) the product of such child's attend-
42 ance and the tuition for the state school such child attends. The taper
43 aid ratio shall equal the quotient, computed to three decimals without
44 rounding, resulting when the positive remainder of one minus the
45 combined wealth ratio, as defined in subdivision [one] three of section
46 thirty-six hundred two of this chapter is divided by seventy-five one-
47 hundredths. Such aid ratio shall not be less than zero nor more than
48 one.
49 c. The apportionments to each school district pursuant to this subdi-
50 vision shall be based on excess cost paid and attendance during the base
51 year.
52 d. Notwithstanding sections thirty-six hundred seven and thirty-six
53 hundred nine-a of this chapter, apportionments pursuant to this subdivi-
54 sion shall be paid to school districts upon submission of reports of
55 attendance and approved tuition expenditures filed in a format
56 prescribed by the commissioner and shall be paid from the annual appor-
S. 4041--A 6
1 tionment of public moneys for the support of public schools in accord-
2 ance with section thirty-six hundred nine-b of this chapter.
3 5. The commissioner shall annually determine the tuition rate and the
4 commissioner of social services shall annually determine the maintenance
5 rate for special services or programs provided during the months of July
6 and August for children with [handicapping conditions] disabilities
7 entitled to attend public schools without the payment of tuition pursu-
8 ant to section thirty-two hundred two of this chapter. The commissioner
9 of education shall annually determine the tuition rate, maintenance rate
10 and the medical services rate, if applicable, for such children attend-
11 ing the New York state school for the blind or the New York state school
12 for the deaf during the months of July and August. Such rates shall be
13 determined in conformance with the reimbursement methodologies estab-
14 lished pursuant to subdivision four of this section and shall be subject
15 to the approval of the division of the budget. Rates shall be determined
16 for all special services or programs as defined in section forty-four
17 hundred one of this chapter and offered during July and August.
18 § 9. Subdivisions 1, 2, 4 and 5 of section 4406 of the education law,
19 subdivisions 1 and 2 as amended and subdivisions 4 and 5 as added by
20 chapter 683 of the laws of 1986, are amended to read as follows:
21 1. When the family court pursuant to section two hundred thirty-six of
22 the family court act shall issue an order to provide for educational
23 services, including transportation, tuition or maintenance of such chil-
24 dren with [handicapping conditions] disabilities, the commissioner [of
25 education], if he approves such order, shall issue a certificate to such
26 effect in duplicate, one of which shall be filed with the clerk of the
27 board of supervisors or other governing elective body of the county or
28 chief fiscal officer of the city of New York and one in the office of
29 the commissioner [of education]. Refusal of the commissioner to approve
30 such order may be reviewed only in accordance with the provisions of
31 article seventy-eight of the civil practice law and rules.
32 2. One-half of the cost of providing such services, as provided in
33 subdivision one of this section, as certified by the commissioner [of
34 education], is hereby made a charge against the county or the city of
35 New York in which any such [handicapped] child with disabilities
36 resides, and the remaining one-half of the cost thereof shall be paid by
37 the state out of moneys appropriated therefor. All claims for services
38 rendered and for supplies furnished and for other expenses incurred in
39 providing such services, shall be paid in the first instance by the
40 board of supervisors or other governing elective body of the county or
41 chief fiscal officer of the city of New York in which such [handicapped]
42 child with disabilities resides, upon vouchers presented and audited in
43 the same manner as in the case of other claims against the county or the
44 city of New York.
45 4. The commissioner is hereby authorized after consultation with an
46 advisory task force to be appointed by the commissioner, appropriately
47 representative of consumers and providers of such services, to establish
48 program and expenditure guidelines and standards for the provision of
49 special services or programs as defined in section forty-four hundred
50 one of this article for children with [handicapping conditions] disabil-
51 ities who are under the age of five and are not entitled to attend
52 public schools without the payment of tuition pursuant to section thir-
53 ty-two hundred two of this chapter.
54 5. a. Each county and the city of New York may perform a fiscal audit
55 of such services or programs within their respective county or city
56 ordered by the family court pursuant to section two hundred thirty-six
S. 4041--A 7
1 of the family court act for preschool age children with [handicapping
2 conditions] disabilities.
3 b. Payments made pursuant to this section by the county or the city of
4 New York shall, upon the conclusion of the July first to June thirtieth
5 school year for which such payment was made, be subject to audit against
6 the actual difference between such audited expenditures and revenues.
7 Any overpayments made shall be refunded to such county or city or such
8 county or city shall withhold the amount of such overpayment from any
9 other payments due to the claimant and shall report such overpayments to
10 the commissioner.
11 § 10. The section heading and subdivision 1 of section 4407 of the
12 education law, the section heading as amended by chapter 53 of the laws
13 of 1986, subdivision 1 as amended by chapter 82 of the laws of 1985 and
14 paragraph a of subdivision 1 as amended by chapter 53 of the laws of
15 1989, are amended to read as follows:
16 Special provisions relating to instruction of certain children with
17 [handicapping conditions] disabilities. 1. [a.] When it shall appear to
18 the satisfaction of the department that a child with a [handicapping
19 condition] disability is not receiving instruction because there are no
20 appropriate public or private facilities for instruction of such a child
21 within this state because of the unusual type of the [handicap] disabil-
22 ity or combination of [handicaps] disabilities as certified by the
23 commissioner, the school district of which each such pupil is a resident
24 is authorized to contract with an educational facility located outside
25 the state, which, in the judgment of the department, can meet the needs
26 of such child for instruction. Contracts, rates, payments and
27 reimbursements pursuant to this section shall be in accordance with
28 section forty-four hundred five of this article.
29 § 11. The section heading, paragraphs a, b and d of subdivision 4 and
30 paragraph a of subdivision 5 of section 4410 of the education law, as
31 added by chapter 243 of the laws of 1989, paragraph a of subdivision 4
32 and subparagraph (iii) of paragraph a of subdivision 5 as amended by
33 chapter 705 of the laws of 1992 and paragraph d of subdivision 4 as
34 amended by chapter 520 of the laws of 1993, are amended to read as
35 follows:
36 Special education services and programs for preschool children with
37 [handicapping conditions] disabilities.
38 a. The board shall identify each preschool child suspected of having a
39 [handicapping condition] disability who resides within the district and,
40 upon referral to the committee shall, with the consent of the parent,
41 provide for an evaluation related to the suspected disability of the
42 child. The board shall make such identification in accordance with regu-
43 lations of the commissioner.
44 b. Each board shall, within time limits established by the commission-
45 er, be responsible for providing the parent of a preschool child
46 suspected of having a [handicapping condition] disability with a list of
47 approved evaluators in the geographic area. The parent may select the
48 evaluator from such list. Each board shall provide for dissemination of
49 the list and other information to parents at appropriate sites including
50 but not limited to pre-kindergarten, day care, head start programs and
51 early childhood direction centers, pursuant to regulations of the
52 commissioner.
53 d. The approved evaluator shall, following completion of the evalu-
54 ation, transmit the documentation of the evaluation to all members of
55 the committee and to a person designated by the municipality in which
56 the preschool child resides. Each municipality shall notify the approved
S. 4041--A 8
1 evaluators in the geographic area of the person so designated. The
2 summary report of the evaluation shall be transmitted in English and
3 when necessary, also in the dominant language or other mode of communi-
4 cation of the parent; the documentation of the evaluation shall be tran-
5 smitted in English and, upon the request of the parent, also in the
6 dominant language or other mode of communication of the parent, unless
7 not clearly feasible to do so pursuant to regulations promulgated by the
8 commissioner. Costs of translating the summary report and documentation
9 of the evaluation shall be separately reimbursed. If, based on the eval-
10 uation, the committee finds that a child has a [handicapping condition]
11 disability, the committee shall use the documentation of the evaluation
12 to develop an individualized education program for the preschool child.
13 Nothing herein shall prohibit an approved evaluator from at any time
14 providing the parent with a copy of the documentation of the evaluation
15 provided to the committee.
16 a. The committee shall review all relevant information, including but
17 not limited to:
18 (i) information presented by the parent and the child's teacher or
19 teachers pertinent to each child suspected of having a [handicapping
20 condition] disability;
21 (ii) the results of all evaluations; and
22 (iii) information provided by the appropriate licensed or certified
23 professional designated by the agency that is charged with the responsi-
24 bility for the child pursuant to applicable federal laws, if any.
25 § 12. The section heading, paragraph f of subdivision 1 and subdivi-
26 sions 2, 3 and 4 of section 4410-a of the education law, as added by
27 chapter 53 of the laws of 1990, paragraph f of subdivision 1 as amended
28 by chapter 474 of the laws of 1996, subdivisions 2, 3 and 4 as amended
29 by chapter 280 of the laws of 1994 and such section as renumbered by
30 chapter 705 of the laws of 1992, are amended to read as follows:
31 Responsibility for certain temporary-resident preschool children with
32 [handicapping conditions] disabilities.
33 f. "Preschool child with a disability" shall mean a child eligible for
34 services pursuant to section forty-four hundred ten of this chapter. [A
35 "preschool child with a handicapping condition" means a preschool child
36 with a disability.]
37 2. School district evaluation and placement responsibility. The
38 school district of current location of a foster care or homeless child
39 or child in residential care shall be responsible for the evaluation and
40 placement procedures prescribed for a preschool child suspected of
41 having a [handicapping condition] disability pursuant to section forty-
42 four hundred ten of this chapter. In issuing its written notice of
43 determination of services, the board of education of such school
44 district shall identify the municipality of residence of a preschool
45 child with a [handicapping condition] disability who is a foster care or
46 homeless child or child in residential care. Such notice of determi-
47 nation shall be transmitted to both the municipality of residence and
48 the municipality of current location.
49 3. Contract and payment responsibility. The municipality of current
50 location shall be the municipality of record for a preschool child with
51 a [handicapping condition] disability who is a foster care or homeless
52 child or child in residential care for the purposes of section forty-
53 four hundred ten of this chapter provided, however, that, notwithstand-
54 ing the provision of paragraph b of subdivision eleven of such section,
55 the state shall reimburse one hundred percent of the approved costs paid
S. 4041--A 9
1 by such municipality which shall be offset by the local contribution due
2 pursuant to subdivision four of this section.
3 4. Local contribution. The municipality of residence shall be finan-
4 cially responsible for the local contribution which shall equal that
5 portion of the approved costs of services to a foster care or homeless
6 child or child in residential care with a [handicapping condition] disa-
7 bility which would not be reimbursed pursuant to the schedule set out in
8 paragraph b of subdivision eleven of section forty-four hundred ten of
9 this chapter. The commissioner shall certify to the comptroller the
10 amount of the local contribution owed by each municipality to the state.
11 The comptroller shall deduct the amount of such local contribution first
12 from any moneys due the municipality pursuant to such section and then
13 from any other moneys due or to become due such municipality.
14 § 13. This act shall take effect immediately.
