NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A7639A
SPONSOR: Thiele TITLE OF BILL: An act to amend the education law, in relation to the
definition of a student with a disability
PURPOSE:
Relates to the definition of a "child with a disability" or "student
with a disability."
SUMMARY OF PROVISIONS:
Section 4401 of the Education Law is amended to determine and define the
disabilities that shall be included under the meaning of "child with a
disability" or "student with a disability." Such disabilities shall
include but not be limited to: Autism; Deafness; Deaf-Blindness;
Emotional Disturbance; Learning Disability; Intellectual Disability;
Multiple Disabilities; Orthopedic Impairment; Other Health Impairments;
Speech or Language Impairment; Traumatic Brain Injury; Visual Impairment
and Dyslexia.
JUSTIFICATION:
This legislation places into statute the terms used in the definition of
students with disabilities contained in the Regulations of the Commis-
sioner of Education relating to Special Education and Students with
Disabilities and includes the definition of Dyslexia within such
provisions.
Dyslexia's currently obscure and undefined placement in regulation
ignores its immense prevalence in the population and creates the false
impression that it happens with the rarity of aphasia and perceptual
disabilities. Dyslexia is a dynamic phenomenon that makes an unimagina-
tively constructed written language system difficult to process in the
visually-empowered, differently-wired brain that dyslexics are blessed
with. Students with dyslexia need evidence-based, effective intervention
such as structured, multisensory language based educational inter-
ventions in order to address the problem at hand through the proper
individualized education plan.
This legislation removes Dyslexia from its current placement within the
definition of Learning Disability and recognizes it as a specific learn-
ing disability that is neurobiological in origin. It uses the Interna-
tional Dyslexia Association's definition of Dyslexia which was derived
from a multi- year collaboration that included neuroscience experts from
Yale and Georgetown Universities. It would ensure that students with
Dyslexia receive the proper instruction and a quality education as
currently afforded to other students.
LEGISLATIVE HISTORY:
2017: New Legislation
FISCAL IMPLICATIONS:
To be determined.
EFFECTIVE DATE:
This act shall take effect immediately, provided, however, it shall not
affect any student's individualized education program that has been
approved for the two thousand eighteen - two thousand nineteen school
year; provided, however, that the amendments to subdivision 1 of section
4401 of the education law made by section one of this act shall be
subject to the expiration and reversion of such subdivision pursuant to
section 22 of chapter 352 of the laws of 2005, as amended, when upon
such date the provisions of section two of this act shall take effect.
STATE OF NEW YORK
________________________________________________________________________
7639--A
2017-2018 Regular Sessions
IN ASSEMBLY
May 5, 2017
___________
Introduced by M. of A. THIELE -- read once and referred to the Committee
on Education -- recommitted to the Committee on Education in accord-
ance with Assembly Rule 3, sec. 2 -- committee discharged, bill
amended, ordered reprinted as amended and recommitted to said commit-
tee
AN ACT to amend the education law, in relation to the definition of a
student with a disability
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Subdivision 1 of section 4401 of the education law, as
2 amended by chapter 378 of the laws of 2007, is amended to read as
3 follows:
4 1. A "child with a disability" or "student with a disability" means a
5 person under the age of twenty-one who is entitled to attend public
6 schools pursuant to section thirty-two hundred two of this chapter and
7 who, because of mental, physical or emotional reasons can only receive
8 appropriate educational opportunities from a program of special educa-
9 tion. Such term does not include a child whose educational needs are due
10 primarily to unfamiliarity with the English language, environmental,
11 cultural or economic factors. Lack of appropriate instruction in read-
12 ing, including in the essential components of reading instruction as
13 defined in subsection three of section twelve hundred eight of the
14 elementary and secondary education act of nineteen hundred sixty-five,
15 or lack of appropriate instruction in mathematics or limited English
16 proficiency shall not be the determinant factor in identifying a student
17 as a student with a disability. Such disabilities shall include but not
18 be limited to:
19 (a) Autism means a developmental disability significantly affecting
20 verbal and nonverbal communication and social interaction, generally
21 evident before age three, that adversely affects a student's educational
22 performance. Other characteristics often associated with autism are
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD10922-04-8
A. 7639--A 2
1 engagement in repetitive activities and stereotyped movements, resist-
2 ance to environmental change or change in daily routines, and unusual
3 responses to sensory experiences. The term does not apply if a student's
4 educational performance is adversely affected primarily because the
5 student has an emotional disturbance as defined in paragraph (d) of this
6 subdivision. A student who manifests the characteristics of autism after
7 age three could be diagnosed as having autism if the criteria in this
8 paragraph are otherwise satisfied.
9 (b) Deafness means a hearing impairment that is so severe that the
10 student is impaired in processing linguistic information through hear-
11 ing, with or without amplification, that adversely affects a student's
12 educational performance.
13 (c) Deaf-blindness means concomitant hearing and visual impairments,
14 the combination of which causes such severe communication and other
15 developmental and educational needs that they cannot be accommodated in
16 special education programs solely for students with deafness or students
17 with blindness.
18 (d) Emotional disturbance means a condition exhibiting one or more of
19 the following characteristics over a long period of time and to a marked
20 degree that adversely affects a student's educational performance:
21 (1) an inability to learn that cannot be explained by intellectual,
22 sensory, or health factors;
23 (2) an inability to build or maintain satisfactory interpersonal
24 relationships with peers and teachers;
25 (3) inappropriate types of behavior or feelings under normal circum-
26 stances;
27 (4) a generally pervasive mood of unhappiness or depression; or
28 (5) a tendency to develop physical symptoms or fears associated with
29 personal or school problems. The term includes schizophrenia. The term
30 does not apply to students who are socially maladjusted, unless it is
31 determined that they have an emotional disturbance.
32 (e) Hearing impairment means an impairment in hearing, whether perma-
33 nent or fluctuating, that adversely affects the child's educational
34 performance but that is not included under the definition of deafness in
35 this section.
36 (f) Learning disability means a disorder in one or more of the basic
37 psychological processes involved in understanding or in using language,
38 spoken or written, which manifests itself in an imperfect ability to
39 listen, think, speak, read, write, spell, or to do mathematical calcu-
40 lations. The term includes such conditions as perceptual disabilities,
41 brain injury, minimal brain dysfunction, and developmental aphasia. The
42 term does not include learning problems that are primarily the result of
43 visual, hearing or motor disabilities, of an intellectual disability, of
44 emotional disturbance, or of environmental, cultural or economic disad-
45 vantage.
46 (g) Intellectual disability means significantly subaverage general
47 intellectual functioning, existing concurrently with deficits in adap-
48 tive behavior and manifested during the developmental period, that
49 adversely affects a student's educational performance.
50 (h) Multiple disabilities means concomitant impairments (such as
51 intellectual disability-blindness, intellectual disability-orthopedic
52 impairment, etc.), the combination of which cause such severe educa-
53 tional needs that they cannot be accommodated in a special education
54 program solely for one of the impairments. The term does not include
55 deaf-blindness.
A. 7639--A 3
1 (i) Orthopedic impairment means a severe orthopedic impairment that
2 adversely affects a student's educational performance. The term includes
3 impairments caused by congenital anomaly (e.g., clubfoot, absence of
4 some member, etc.), impairments caused by disease (e.g., poliomyelitis,
5 bone tuberculosis, etc.), and impairments from other causes (e.g., cere-
6 bral palsy, amputation, and fractures or burns which cause contrac-
7 tures).
8 (j) Other health-impairment means having limited strength, vitality or
9 alertness, including a heightened alertness to environmental stimuli,
10 that results in limited alertness with respect to the educational envi-
11 ronment, that is due to chronic or acute health problems, including but
12 not limited to a heart condition, tuberculosis, rheumatic fever, nephri-
13 tis, asthma, sickle cell anemia, hemophilia, epilepsy, lead poisoning,
14 leukemia, diabetes, attention deficit disorder or attention deficit
15 hyperactivity disorder or tourette syndrome, which adversely affects a
16 student's educational performance.
17 (k) Speech or language impairment means a communication disorder, such
18 as stuttering, impaired articulation, a language impairment or a voice
19 impairment, that adversely affects a student's educational performance.
20 (l) Traumatic brain injury means an acquired injury to the brain
21 caused by an external physical force or by certain medical conditions
22 such as stroke, encephalitis, aneurysm, and anoxia or brain tumors with
23 resulting impairments that adversely affect educational performance. The
24 term includes open or closed head injuries or brain injuries from
25 certain medical conditions resulting in mild, moderate or severe impair-
26 ments in one or more areas, including cognition, language, memory,
27 attention, reasoning, abstract thinking, judgment, problem solving,
28 sensory, perceptual and motor abilities, psychosocial behavior, physical
29 functions, information processing, and speech. The term does not include
30 injuries that are congenital or caused by birth trauma.
31 (m) Visual impairment including blindness means an impairment in
32 vision that, even with correction, adversely affects a student's educa-
33 tional performance. The term includes both partial sight and blindness.
34 (n) Dyslexia means a specific learning disability that is neurobiolog-
35 ical in origin. It is characterized at the level of a keen observer as
36 frustration, withdrawal, anxiety, aversion to homework and schoolwork,
37 underperformance, and an undoing of the personal sense of ability,
38 psycho-somatic symptoms that are triggered by school-failure to read or
39 perform well at spelling, written expression or other language tasks, or
40 mixing up right and left hands. Other observable characteristics
41 include difficulties with accurate and/or fluent word recognition and by
42 poor spelling and decoding abilities. These difficulties typically
43 result from a deficit in the phonological component of language that is
44 often unexpected in relation to other cognitive abilities and the
45 provision of effective classroom instruction. Secondary consequences may
46 include problems in reading comprehension and reduced reading experience
47 that can impede growth of vocabulary and background knowledge.
48 (o) "Special education" means specially designed instruction which
49 includes special services or programs as delineated in subdivision two
50 of this section, and transportation, provided at no cost to the parents
51 to meet the unique needs of a child with a disability. A "child with a
52 handicapping condition" means a child with a disability.
53 § 2. Subdivision 1 of section 4401 of the education law, as amended by
54 chapter 311 of the laws of 1999, is amended to read as follows:
55 1. A "child with a disability" or "student with a disability" means a
56 person under the age of twenty-one who is entitled to attend public
A. 7639--A 4
1 schools pursuant to section thirty-two hundred two of this chapter and
2 who, because of mental, physical or emotional reasons can only receive
3 appropriate educational opportunities from a program of special educa-
4 tion. Such term does not include a child whose educational needs are due
5 primarily to unfamiliarity with the English language, environmental,
6 cultural or economic factors. Lack of instruction in reading or math-
7 ematics or limited English proficiency shall not be the determinant
8 factor in identifying a student as a student with a disability. Such
9 disabilities shall include but not be limited to:
10 (a) Autism means a developmental disability significantly affecting
11 verbal and nonverbal communication and social interaction, generally
12 evident before age three, that adversely affects a student's educational
13 performance. Other characteristics often associated with autism are
14 engagement in repetitive activities and stereotyped movements, resist-
15 ance to environmental change or change in daily routines, and unusual
16 responses to sensory experiences. The term does not apply if a student's
17 educational performance is adversely affected primarily because the
18 student has an emotional disturbance as defined in paragraph (d) of this
19 subdivision. A student who manifests the characteristics of autism after
20 age three could be diagnosed as having autism if the criteria in this
21 paragraph are otherwise satisfied.
22 (b) Deafness means a hearing impairment that is so severe that the
23 student is impaired in processing linguistic information through hear-
24 ing, with or without amplification, that adversely affects a student's
25 educational performance.
26 (c) Deaf-blindness means concomitant hearing and visual impairments,
27 the combination of which causes such severe communication and other
28 developmental and educational needs that they cannot be accommodated in
29 special education programs solely for students with deafness or students
30 with blindness.
31 (d) Emotional disturbance means a condition exhibiting one or more of
32 the following characteristics over a long period of time and to a marked
33 degree that adversely affects a student's educational performance:
34 (1) an inability to learn that cannot be explained by intellectual,
35 sensory, or health factors;
36 (2) an inability to build or maintain satisfactory interpersonal
37 relationships with peers and teachers;
38 (3) inappropriate types of behavior or feelings under normal circum-
39 stances;
40 (4) a generally pervasive mood of unhappiness or depression; or
41 (5) a tendency to develop physical symptoms or fears associated with
42 personal or school problems. The term includes schizophrenia. The term
43 does not apply to students who are socially maladjusted, unless it is
44 determined that they have an emotional disturbance.
45 (e) Hearing impairment means an impairment in hearing, whether perma-
46 nent or fluctuating, that adversely affects the child's educational
47 performance but that is not included under the definition of deafness in
48 this section.
49 (f) Learning disability means a disorder in one or more of the basic
50 psychological processes involved in understanding or in using language,
51 spoken or written, which manifests itself in an imperfect ability to
52 listen, think, speak, read, write, spell, or to do mathematical calcu-
53 lations. The term includes such conditions as perceptual disabilities,
54 brain injury, minimal brain dysfunction, and developmental aphasia. The
55 term does not include learning problems that are primarily the result of
56 visual, hearing or motor disabilities, of an intellectual disability, of
A. 7639--A 5
1 emotional disturbance, or of environmental, cultural or economic disad-
2 vantage.
3 (g) Intellectual disability means significantly subaverage general
4 intellectual functioning, existing concurrently with deficits in adap-
5 tive behavior and manifested during the developmental period, that
6 adversely affects a student's educational performance.
7 (h) Multiple disabilities means concomitant impairments (such as
8 intellectual disability-blindness, intellectual disability-orthopedic
9 impairment, etc.), the combination of which cause such severe educa-
10 tional needs that they cannot be accommodated in a special education
11 program solely for one of the impairments. The term does not include
12 deaf-blindness.
13 (i) Orthopedic impairment means a severe orthopedic impairment that
14 adversely affects a student's educational performance. The term includes
15 impairments caused by congenital anomaly (e.g., clubfoot, absence of
16 some member, etc.), impairments caused by disease (e.g., poliomyelitis,
17 bone tuberculosis, etc.), and impairments from other causes (e.g., cere-
18 bral palsy, amputation, and fractures or burns which cause contrac-
19 tures).
20 (j) Other health-impairment means having limited strength, vitality or
21 alertness, including a heightened alertness to environmental stimuli,
22 that results in limited alertness with respect to the educational envi-
23 ronment, that is due to chronic or acute health problems, including but
24 not limited to a heart condition, tuberculosis, rheumatic fever, nephri-
25 tis, asthma, sickle cell anemia, hemophilia, epilepsy, lead poisoning,
26 leukemia, diabetes, attention deficit disorder or attention deficit
27 hyperactivity disorder or tourette syndrome, which adversely affects a
28 student's educational performance.
29 (k) Speech or language impairment means a communication disorder, such
30 as stuttering, impaired articulation, a language impairment or a voice
31 impairment, that adversely affects a student's educational performance.
32 (l) Traumatic brain injury means an acquired injury to the brain
33 caused by an external physical force or by certain medical conditions
34 such as stroke, encephalitis, aneurysm, and anoxia or brain tumors with
35 resulting impairments that adversely affect educational performance. The
36 term includes open or closed head injuries or brain injuries from
37 certain medical conditions resulting in mild, moderate or severe impair-
38 ments in one or more areas, including cognition, language, memory,
39 attention, reasoning, abstract thinking, judgment, problem solving,
40 sensory, perceptual and motor abilities, psychosocial behavior, physical
41 functions, information processing, and speech. The term does not include
42 injuries that are congenital or caused by birth trauma.
43 (m) Visual impairment including blindness means an impairment in
44 vision that, even with correction, adversely affects a student's educa-
45 tional performance. The term includes both partial sight and blindness.
46 (n) Dyslexia means a specific learning disability that is neurobiolog-
47 ical in origin. It is characterized at the level of a keen observer as
48 frustration, withdrawal, anxiety, aversion to homework and schoolwork,
49 underperformance, and an undoing of the personal sense of ability,
50 psycho-somatic symptoms that are triggered by school-failure to read or
51 perform well at spelling, written expression or other language tasks, or
52 mixing up right and left hands. Other observable characteristics
53 include difficulties with accurate and/or fluent word recognition and by
54 poor spelling and decoding abilities. These difficulties typically
55 result from a deficit in the phonological component of language that is
56 often unexpected in relation to other cognitive abilities and the
A. 7639--A 6
1 provision of effective classroom instruction. Secondary consequences may
2 include problems in reading comprehension and reduced reading experience
3 that can impede growth of vocabulary and background knowledge.
4 (o) "Special education" means specially designed instruction which
5 includes special services or programs as delineated in subdivision two
6 of this section, and transportation, provided at no cost to the parents
7 to meet the unique needs of a child with a disability. A "child with a
8 handicapping condition" means a child with a disability.
9 § 3. This act shall take effect immediately; provided, however, that
10 it shall not affect any student's individualized education program that
11 has been approved for the 2018--2019 school year; provided, further,
12 that the amendments to subdivision 1 of section 4401 of the education
13 law made by section one of this act shall be subject to the expiration
14 and reversion of such subdivision pursuant to section 22 of chapter 352
15 of the laws of 2005, as amended, when upon such date the provisions of
16 section two of this act shall take effect.
