S05867 Summary:

BILL NOS05867A
 
SAME ASSAME AS A07639-A
 
SPONSORMARCELLINO
 
COSPNSRAMEDORE
 
MLTSPNSR
 
Amd 4401, Ed L
 
Amends the definition of a student with a disability.
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S05867 Actions:

BILL NOS05867A
 
05/03/2017REFERRED TO EDUCATION
01/03/2018REFERRED TO EDUCATION
04/16/2018AMEND AND RECOMMIT TO EDUCATION
04/16/2018PRINT NUMBER 5867A
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S05867 Memo:

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S05867 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         5867--A
 
                               2017-2018 Regular Sessions
 
                    IN SENATE
 
                                       May 3, 2017
                                       ___________
 
        Introduced by Sens. MARCELLINO, AMEDORE -- read twice and ordered print-
          ed,  and when printed to be committed to the Committee on Education --
          recommitted to the Committee on Education in  accordance  with  Senate
          Rule  6,  sec.  8  --  committee  discharged,  bill  amended,  ordered
          reprinted as amended and recommitted to said committee

        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.
                                                                   LBD10922-03-8

        S. 5867--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.

        S. 5867--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

        S. 5867--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

        S. 5867--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

        S. 5867--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.
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