N.Y. Education Law § 4005: Placement and evaluation of children

§ 4005. Placement and evaluation of children. 1. a. Children placed by

the family court. When the placement of a child is being considered by

the family court pursuant to section 353.3, seven hundred fifty-six or

one thousand fifty-five of the family court act and such child is

thought to have a handicapping condition and may be placed in a child

care institution, the family court judge or the probation department

shall request the school district of residence to provide that the

committee on special education of such district evaluate such child and

make written recommendations for appropriate educational services and to

forward a written evaluation and recommendation within forty-two days of

such request. Such information shall be used to determine the most

appropriate placement for the child, and if the family court places the

child in the custody of a social services district, it shall transmit

such information to such district. If the committee on special education

determines that the child does not have a handicapping condition, it

shall notify the family court of such determination within forty-two

days. If the committee on special education fails to make a

recommendation pursuant to the provisions of this paragraph, the family

court shall obtain such information from the school district pursuant to

section two hundred fifty-five of the family court act.

b. Children placed by a local social services district. When a local

social services district is considering the placement of a child thought

to have a handicapping condition in a child care institution, the social

services district shall request the school district of residence to

provide that the committee on special education of such district

evaluate such child and make written recommendations for appropriate

educational services within forty-two days, except where such

information has been obtained by the family court. Such information

shall be used to determine the most appropriate placement for the child.

If the committee on special education determines that the child does not

have a handicapping condition, it shall notify the social services

district of such determination within forty-two days.

c. Children placed by the division for youth. (i) Any educational

information obtained by the family court pursuant to this section shall

be transmitted to the division for youth pursuant to section five

hundred seven-b of the executive law. The division shall use such

information to determine the most appropriate placement for the child.

(ii) When the division for youth is considering the placement of a

child thought to have a handicapping condition in a child care

institution, pursuant to article nineteen-G of the executive law, the

division shall request the school district of residence to provide that

the committee on special education of such district evaluate such child

and make written recommendations for appropriate educational services

within forty-two days. Such information shall be used to determine the

most appropriate placement for the child. If the committee on special

education determines that the child does not have a handicapping

condition, it shall notify the division of such determination within

forty-two days.

d. Children placed in residential treatment facilities for children

and youth. When a pre-admission certification committee established

pursuant to section 9.51 of the mental hygiene law is considering the

placement of a child who has not previously been placed in a child care

institution by a public agency in a residential treatment facility for

children and youth and such child is thought to have a handicapping

condition, the committee shall request the school district of residence

to provide that the committee on special education of such district

evaluate such child and make written recommendations for appropriate

educational services and to forward a written evaluation and

recommendation within forty-two days of such request. Notwithstanding

the definition set forth in subdivision eleven of section forty hundred

one of this article, if a child being considered for initial placement

in a residential treatment facility is a patient in a hospital operated

or licensed by the office of mental health, the school district of

residence shall be the school district of residence at the time he or

she entered the hospital. Such information shall be used to determine

the most appropriate placement for the child. If the committee on

special education determines that the child does not have a handicapping

condition, it shall notify the pre-admission certification committee and

the operator of a residential treatment facility for children and youth

which has admitted the child for care and treatment of such

determination within forty-two days.

e. Any information obtained from a committee on special education

pursuant to this section shall be considered confidential in accordance

with regulations of the commissioner and shall be forwarded by the local

social services district, the division for youth or the appropriate

pre-admission certification committee established pursuant to section

9.51 of the mental hygiene law to the child care institution or other

facility in which the child is placed.

f. For the purposes of this section, an emergency placement shall mean

a child who must be placed in a child care institution to protect the

health and welfare of the child or his family within thirty days of the

presentation of the child to the family court or a local social services

district. Children in an emergency placement shall not be exempted from

the requirements of paragraphs a and b of this subdivision, except that

the required educational evaluation shall be performed and

recommendations made subsequent to the emergency placement but in no

case later than forty-two days after such placement.

2. a. Upon the placement of a child who is at least five years of age

in a child care institution that operates a private school or in a

special act school district, by a public agency, or in a residential

treatment facility for children and youth which, independently or as

part of an authorized agency, operates a private school or a special act

school district, the committee on special education of the private

school or the special act district shall follow the procedures contained

in section forty-four hundred two of this chapter including the

involvement of the parents or guardians of the child and shall:

(i) consider and review the evaluation performed by the committee on

special education of the school district of residence.

(ii) prepare an individualized education program for each child who

has been determined to be handicapped which takes into account

recommendations made by the committee on special education of the school

district of residence.

(iii) place the child in the most appropriate program specified in

subdivision two of section forty hundred two of this article. The

committee shall review at least annually and prepare a written report

concerning the status of each child with a handicapping condition under

its jurisdiction which shall include a determination whether a child's

educational program should be continued, modified or terminated.

(iv) forward to the social services district or the division for youth

the individualized education program and in each year forward an annual

report for each child, as specified in this paragraph. The social

services district, the division for youth or the operator of a

residential treatment facility for children and youth which is not

operated by an authorized agency, as the case may be, shall transmit a

copy of such documents to the parents or guardians of the child and to

the committee on special education of the school district of origin and

shall forward a copy of the evaluation performed by the committee on

special education of the school district of residence to the parents or

guardians of the child.

* b. If the individual educational evaluation, individualized

education program, educational placement decision, or the annual report

for the child or any other matter relating to the provision of a free

appropriate public education to the student is not acceptable to the

parents or persons in parental relation to the student, an impartial

hearing may be initiated by such parties pursuant to section forty-four

hundred four of this title and mediation shall be made available

pursuant to section forty-four hundred four-a of this title.

* NB Effective until June 30, 2027

* b. If the educational evaluation, educational placement decision or

the annual report for the child is not acceptable to the parents or

guardians of the child, the child, or the social services district or

the division for youth, appeals may be made by such parties pursuant to

section forty-four hundred four of this chapter.

* NB Effective June 30, 2027

* c. A child care institution or the social services district or the

division for youth may request a review by the board of education of the

school district of residence of the fact that a child has been

determined not to be handicapped by the committee on special education

of such district. An appeal to the commissioner will lie from any

determination of the board of education.

* NB Effective June 30, 2027

3. In the event that it has been determined by a private school

operated by a child care institution or a special act school district,

subject to any review or modification provided for in this article, that

a child should receive educational services in a public school, other

than a special act school district, or board of cooperative educational

services program or if a child resides in a child care institution that

does not maintain an approved private school program or special act

school district, then any such child residing in a child care

institution shall be admitted to the school district in which the child

care institution is located pursuant to regulations of the commissioner.

For the purposes of this subdivision a special act school district shall

not be considered to be the school district in which such institution is

located.

4. During the pendency of any proceeding concerning any individual

child described above, the child care institution or special act school

district shall continue to be reimbursed by the social services district

for the approved cost of the current educational placement of the child,

including the transportation of such child to and from any interview

required by the committee on special education of the child's school

district of residence where an evaluation must be performed subsequent

to the placement of a child pursuant to this section or any costs of an

independent evaluation deemed necessary by such committee.

5. Nothing in this section shall be deemed to affect the placement or

removal of a child from a child care institution by a public agency or

the admission or discharge of children to and from Blythedale Children's

Hospital.