N.Y. Education Law § 4402: Duties of school districts

§ 4402. Duties of school districts. 1. * a. The board of education or

trustees of each school district and the city school district of the

city of New York shall, under regulations prescribed by the commissioner

and approved by the regents of the university, identify, locate and

evaluate in accordance with this section all students with disabilities

in such district who are in need of special education, including

children with disabilities who are homeless children or are wards of the

state as defined in the regulations of the commissioner and, consistent

with section thirty-six hundred two-c of this chapter, students who

attend nonpublic schools within such school district, and shall maintain

a register containing the name of each child with a disability who

resides in the district, the nature of such child's disability, the

educational placement and setting, if any, of such child, and any other

student-specific data required to comply with federal law or

regulations.

* NB Effective until June 30, 2027

* a. The board of education or trustees of each school district and

the city school district of the city of New York shall ascertain under

regulations prescribed by the commissioner and approved by the regents

of the university, the number of children with handicapping conditions

in such district under the age of twenty-one years and the nature of the

handicapping condition of each such child in accordance with the

provisions of this section, and shall maintain a register containing the

name of each child with a handicapping condition who resides in the

district, the nature of such child's handicapping condition, the

educational placement and setting, if any, of such child.

* NB Effective June 30, 2027

b. (1) The board of education or trustees of each school district

shall establish committees and/or subcommittees on special education as

necessary to ensure timely evaluation and placement of pupils. The board

of education of the city school district of the city of New York, shall

establish at least one committee on special education in each of its

community school districts, provided that appointments to the community

school district committees shall be made upon the approval of the

community school board except that the board of education of the city

school district of the city of New York, may establish one committee to

serve more than one community school district, in which case,

appointments thereto shall be made upon the joint approval of the

affected community school boards; provided, however, that prior to such

consolidation, the board shall consider the relative caseload of the

committee on special education in each affected community school

district, including but not limited to the following factors: the number

of students evaluated by such committee; the number of referrals to

special education in such community school district; the ability to

comply with mandated paperwork and timelines; and other issues which the

board deems pertinent.

(a) Such committees shall be composed of at least the following

members: (i) the parents or persons in parental relationship to the

student; (ii) one regular education teacher of the student whenever the

student is or may be participating in the regular education environment;

(iii) one special education teacher of the student, or, if appropriate,

a special education provider of the student; (iv) a school psychologist;

(v) a representative of such school district who is qualified to provide

or administer or supervise special education and is knowledgeable about

the general curriculum and the availability of resources of the school

district; (vi) an individual who can interpret the instructional

implications of evaluation results; (vii) a school physician; (viii) an

additional parent, residing in the school district or a neighboring

school district, of a student with a disability, of a student who has

been declassified and is no longer eligible for an individualized

education program (IEP), or a parent of a disabled child who has

graduated, for a period of five years beyond the student's

declassification or graduation, provided such parent shall not be

employed by or under contract with the school district, and provided

further that such additional parent shall not be a required member if

the parents request that such additional parent member not participate;

(ix) such other persons having knowledge or special expertise regarding

the student as the school district or the parents or persons in parental

relationship to the student shall designate, to the extent required

under federal law; and (x) if appropriate, the student.

* (b) In determining the composition of such committee pursuant to

clause (a) of this subparagraph, a school district may determine that a

member appointed pursuant to one of subclause (ii), (iii), (iv), (v) or

(ix) of clause (a) of this subparagraph also fulfills the requirement of

subclause (vi) of clause (a) of this subparagraph of a member who is an

individual who can interpret the instructional implications of

evaluation results where such individuals are determined by the school

district to have the knowledge and expertise to do so and/or that a

member appointed pursuant to subclause (iii) or (iv) of clause (a) of

this subparagraph also fulfills the requirement of subclause (v) of

clause (a) of this subparagraph of a member who is a representative of

the school district. The regular education teacher of the student shall

participate in the development, review and revision of the

individualized education program for the student, to the extent required

under federal law. The school physician need not be in attendance at any

meeting of the committee on 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, the student, or a member of the committee on special

education. The parents or persons in parental relation of the student in

question shall receive proper written notice of their right to have the

school physician attend the meetings of the committee on special

education upon referral of said student to the committee on special

education or whenever such committee plans to modify or change the

identification, evaluation or educational placement of the student. The

additional parent need not be in attendance at any meeting of the

committee on 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, the student, or

a member of the committee on 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. The committee shall invite the appropriate

professionals most familiar with a student's disability or disabilities

to attend any meeting concerning the educational program for such

student. Except as otherwise provided in this clause or clause (b-1) or

(b-2) of this subparagraph, all members of such committee shall attend

meetings of the committee on special education.

Members of such committee shall serve at the pleasure of such board

and members who are neither employees of nor under contract with such

district shall serve without compensation except that such members shall

be entitled to a per diem to defray expenses incurred in such service,

provided, however, that any expense incurred shall be deemed an aidable

operating expense for purposes of state aid.

* NB Effective until June 30, 2027

* (b) In determining the composition of such committee pursuant to

clause (a) of this subparagraph, a school district may determine that a

member appointed pursuant to one of subclause (ii), (iii), (iv), (v) or

(ix) of clause (a) of this subparagraph also fulfills the requirement of

subclause (vi) of clause (a) of this subparagraph of a member who is an

individual who can interpret the instructional implications of

evaluation results where such individuals are determined by the school

district to have the knowledge and expertise to do so and/or that a

member appointed pursuant to subclause (iii) or (iv) of clause (a) of

this subparagraph also fulfills the requirement of subclause (v) of

clause (a) of this subparagraph of a member who is a representative of

the school district. The regular education teacher of the student shall

participate in the development, review and revision of the

individualized education program for the student, to the extent required

under federal law. The school physician need not be in attendance at any

meeting of the committee on special education unless specifically

requested in writing, at least seventy-two hours prior to such meeting

by the parents or other person in parental relationship to the student

in question, the student, or a member of the committee on special

education. The parents or persons in parental relationship of the

student in question shall receive proper written notice of their right

to have the school physician attend the meetings of the committee on

special education upon referral of said student to the committee on

special education or whenever such committee plans to modify or change

the identification, evaluation or educational placement of the student.

The additional parent need not be in attendance at any meeting of the

committee on 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, the student, or

a member of the committee on 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. The committee shall invite the appropriate

professionals most familiar with a student's disability or disabilities

to attend any meeting concerning the educational program for such

student.

Members of such committee shall serve at the pleasure of such board

and members who are neither employees of nor under contract with such

district shall serve without compensation except that such members shall

be entitled to a per diem to defray expenses incurred in such service,

provided, however, that any expense incurred shall be deemed an aidable

operating expense for purposes of state aid.

* NB Effective June 30, 2027

* (b-1) Notwithstanding any provision of law, rule or regulation to

the contrary, a member of the committee on special education, other than

the parents or persons in parental relation to the student 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, 2027

* (b-2) Notwithstanding any provision of law, rule or regulation to

the contrary, a member of the committee on special education, other than

the parents or persons in parental relation to the student, 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, 2027

* (b-3) Requests for excusal of a member of the committee as provided

for in clauses (b-1) and (b-2) of this subparagraph, and the written

input as provided for in clause (b-2) of this subparagraph, 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 special

education committee 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, 2027

(c) Districts not having available personnel may share the services of

a local committee on special education with another school district or

contract with a board of cooperative educational services for such

personnel pursuant to regulations of the commissioner. A district having

a subcommittee on special education may share the services of a local

committee on special education with another school district, provided

that a representative of such school district who is qualified to

provide or administer or supervise special education and is

knowledgeable about the general curriculum and the availability of

resources of the school district shall be a member of such committee

when it convenes on behalf of a student who is a resident of such

district.

* (d) Boards of education in city school districts in cities having in

excess of one hundred twenty-five thousand inhabitants shall appoint

subcommittees on special education, to the extent necessary to ensure

timely evaluation and placement of students with disabilities. Boards of

education or trustees of any school district outside of a city having a

population in excess of one hundred twenty-five thousand inhabitants may

appoint subcommittees on special education to assist the board of

education in accordance with this clause and the regulations of the

commissioner. The membership of each subcommittee shall include, but not

be limited to, the committee members required by subclauses (i), (ii),

(iii), (v), (vi), (ix) and (x) of clause (a) of this subparagraph, and a

school psychologist whenever a new psychological evaluation is reviewed

or a change to a more restrictive program option, as defined in

regulations of the commissioner, is considered. Except when (i) a

student is considered for initial placement in a special class, or (ii)

a student is considered for initial placement in a special class outside

of the student's school of attendance, or (iii) whenever a student is

considered for placement in a school primarily serving students with

disabilities or a school outside of the student's district, each

subcommittee may perform the functions for which the committee on

special education is responsible pursuant to the provisions of this

subdivision. Notwithstanding any other provisions of this clause to the

contrary, attendance of members of a subcommittee may be excused from

attendance in the same manner as members of a committee on special

education pursuant to clauses (b-1), (b-2) or (b-3) of this

subparagraph. Each subcommittee shall report annually the status of each

student with a disability within its jurisdiction to the committee on

special education, and the subcommittee shall refer to the committee,

upon receipt of a written request from the parent or person in parental

relation to a student, any matter in which the parent disagrees with the

subcommittee's recommendation concerning a modification or change in the

identification, evaluation, educational placement or provision of a free

appropriate public education to such student. The committee on special

education shall be responsible for oversight and monitoring of the

activities of each subcommittee to assure compliance with the

requirements of applicable and federal law and regulations.

* NB Effective until June 30, 2027

* (d) Boards of education in city school districts in cities having in

excess of one hundred twenty-five thousand inhabitants shall appoint

subcommittees on special education, to the extent necessary to ensure

timely evaluation and placement of students with disabilities. Boards of

education or trustees of any school district outside of a city having a

population in excess of one hundred twenty-five thousand inhabitants may

appoint subcommittees on special education to assist the board of

education in accordance with this clause and the regulations of the

commissioner. The membership of each subcommittee shall include, but not

be limited to, the committee members required by subclauses (i), (ii),

(iii), (v), (vi), (ix) and (x) of clause (a) of this subparagraph, and a

school psychologist whenever a new psychological evaluation is reviewed

or a change to a more restrictive program option, as defined in

regulations of the commissioner, is considered. Except when (i) a

student is considered for initial placement in a special class, or (ii)

a student is considered for initial placement in a special class outside

of the student's school of attendance, or (iii) whenever a student is

considered for placement in a school primarily serving students with

disabilities or a school outside of the student's district, each

subcommittee may perform the functions for which the committee on

special education is responsible pursuant to the provisions of this

subdivision. Each subcommittee shall report annually the status of each

student with a disability within its jurisdiction to the committee on

special education, and the subcommittee shall refer to the committee,

upon receipt of a written request from the parent or person in parental

relationship to a student, any matter in which the parent disagrees with

the subcommittee's recommendation concerning a modification or change in

the identification, evaluation, educational placement or provision of a

free appropriate public education to such student. The committee on

special education shall be responsible for oversight and monitoring of

the activities of each subcommittee to assure compliance with the

requirements of applicable and federal law and regulations.

* NB Effective June 30, 2027

* (2) Such committees or subcommittees shall review at least annually,

the status of each student with a disability and each student thought to

be disabled who is identified pursuant to paragraph a of this

subdivision. Such review shall consider the educational progress and

achievement of the student with a disability and the student's ability

to participate in instructional programs in regular education.

* NB Effective until June 30, 2027

* (2) Such committees or subcommittees shall identify, review and

evaluate at least annually, the status of each child with a handicapping

condition and each child thought to be handicapped who resides within

the school district. Such review shall consider the educational progress

and achievement of the child with a handicapping condition and the

child's ability to participate in instructional programs in regular

education.

* NB Effective June 30, 2027

(3) The committee or when applicable the subcommittee shall:

(a) Obtain, review and evaluate all relevant information, including

but not limited to that presented by the parent, person in parental

relationship and teacher, pertinent to each child suspected of or

identified as having a disability, including the results of a physical

examination performed in accordance with sections nine hundred three,

nine hundred four and nine hundred five of this chapter and, where

determined to be necessary by a school psychologist, an appropriate

psychological evaluation performed by a qualified private or school

psychologist, and other appropriate assessments as necessary to

ascertain the physical, mental, emotional and cultural-educational

factors which may contribute to the suspected or identified disability,

and all other school data which bear on the child's progress, including,

where appropriate, observation of classroom performance.

* (b) (i) Make recommendations based upon a written evaluation setting

forth the reasons for the recommendations, to the child's parent or

person in parental relation and board of education or trustees as to

appropriate educational programs and placement in accordance with the

provisions of subdivision six of section forty-four hundred one-a of

this article, and as to the advisability of continuation, modification,

or termination of special class or program placements which evaluation

shall be furnished to the child's parent or person in parental relation

together with the recommendations provided, however that the committee

may recommend a placement in a school which uses psychotropic drugs only

if such school has a written policy pertaining to such use that is

consistent with subdivision four-a of section thirty-two hundred eight

of this chapter and that the parent or person in parental relation is

given such written policy at the time such recommendation is made. If

such recommendation is not acceptable to the parent or person in

parental relation, such parent or person in parental relation may appeal

such recommendation as provided for in section forty-four hundred four

of this chapter.

(ii) Notwithstanding any provisions of this clause or clause (a) of

this subparagraph 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 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:

(A) 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

(B) 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 dominate 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.

(C) 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 special education committee 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

subitem shall not affect the requirement that the special education

committee review the individualized education program at the annual

meeting, or more often if necessary.

* NB Effective until June 30, 2027

* (b) Make recommendations based upon a written evaluation setting

forth the reasons for the recommendations, to the child's parent or

person in parental relationship and board of education or trustees as to

appropriate educational programs and placement in accordance with the

provisions of subdivision six of section forty-four hundred one-a of

this article, and as to the advisability of continuation, modification,

or termination of special class or program placements which evaluation

shall be furnished to the child's parent or person in parental

relationship together with the recommendations provided, however that

the committee may recommend a placement in a school which uses

psychotropic drugs only if such school has a written policy pertaining

to such use and that the parent or person in parental relationship is

given such written policy at the time such recommendation is made. If

such recommendation is not acceptable to the parent or person in

parental relationship, such parent or person in parental relationship

may appeal such recommendation as provided for in section forty-four

hundred four of this chapter.

* NB Effective June 30, 2027

(c) Provide written prior notice to the parents or person in parental

relationship of the child upon receipt of referral for evaluation or

whenever such committee plans to continue, modify or change the

identification, evaluation, or educational placement of the child or the

provision of a free appropriate public education to the child and advise

the parent of or person in parental relationship to the child of his or

her opportunity to address the committee, either in person or in

writing, on the appropriateness of the committee's recommendations on

program placements to be made to the board of education or trustees.

Such notice shall, where a child has been placed in a residential

program by a committee on special education, or has been determined to

be at risk of such a placement pursuant to subparagraph four of

paragraph b of subdivision one of section forty-four hundred two of this

article, also notify the parent or other person in parental relationship

that the child is not entitled to receive free educational services or

to remain in a residential educational program after the age of

twenty-one, the receipt of a high school diploma or the time described

in subdivision five of this section.

* (d) Advise the board of education or trustees concerning the

frequency and nature of periodic reevaluations of students with

disabilities by appropriate specialists, provided, however, that each

student in a special program or a special class shall be reevaluated by

qualified appropriate school personnel at least once every three years,

except where the school district and the parent or person in parental

relation to the student agree in writing that such a reevaluation is

unnecessary. A reevaluation of a student with a disability shall be

conducted by qualified individuals, in accordance with regulations of

the commissioner consistent with the requirements of a reevaluation as

defined by the applicable federal regulation. A reevaluation may not be

conducted more than once a year unless the parent or person in parental

relation to the student and the school district otherwise agree.

* NB Effective until June 30, 2027

* (d) Advise the board of education or trustees concerning the

frequency and nature of periodic reevaluations of students with

disabilities by appropriate specialists, provided, however, that each

student in a special program or a special class shall be reevaluated by

qualified appropriate school personnel at least once every three years.

A reevaluation of a student with a disability shall be conducted by

qualified individuals, in accordance with regulations of the

commissioner consistent with the requirements of a reevaluation as

defined by the applicable federal regulation.

* NB Effective June 30, 2027

(d-1) Each school district shall develop policies, pursuant to

regulations of the commissioner, to provide special services or

programs, to the extent appropriate to the needs of the child, to enable

the child to be involved in and progress in the general education

curriculum.

(e) Make, or have made, periodic evaluations of the adequacy of

programs, services and facilities for children with disabilities.

(f) Report periodically, but at least annually, to the board of

education or trustees on the status of programs, services, and

facilities made available by the school district in accordance with the

provisions of subdivision eight of section thirty-six hundred two of

this chapter. Such reports shall be kept on file for inspection by the

commissioner.

(g) Provide for the transmittal of information by the board of

education, including such test results and evaluations as the committee

may have collected, to the home district of the child with a disability

in cases where the home school district has contracted for the child's

education with another school district or board of cooperative

educational services.

(h) Provide the form developed pursuant to subdivision twenty-two of

section four of the veterans' services law to the parent or person in

parental relation of a child designated by the committee as either

disabled or emotionally disturbed.

(i) Provide, to the extent appropriate to the individual needs of the

student with a disability that such student is educated in a setting

with students who are nondisabled.

* (i) In accordance with the regulations of the commissioner and

subsection (k) of section fourteen hundred fifteen of title twenty of

the United States code and the implementing federal regulations, to

develop a functional behavioral assessment plan, to review, or revise,

as appropriate, a behavioral intervention plan, to develop appropriate

behavioral interventions and to review and revise, as appropriate, the

implementation of a behavioral intervention plan, to address the

behavior of a student with a disability who is alleged to have engaged

in misconduct, to the extent required by federal law and regulations.

* NB Effective June 30, 2027

* (j) In accordance with the regulations of the commissioner and

subsection (k) of section fourteen hundred fifteen of title twenty of

the United States code and the implementing federal regulations, to

conduct a functional behavioral assessment, to review, or revise, as

appropriate or necessary, and implement a behavioral intervention plan,

to develop appropriate behavioral interventions and to review and

revise, as appropriate or necessary, the implementation of a behavioral

intervention plan, to address the behavior of a student with a

disability who is alleged to have engaged in misconduct, to the extent

required by federal law and regulations.

* NB Effective until June 30, 2027

* (j) In accordance with the regulations of the commissioner and

subsection (k) of section fourteen hundred fifteen of title twenty of

the United States code and the implementing federal regulations, to

conduct a review to determine whether behavior of a student with a

disability which violates the applicable school rules or code of conduct

and results in a change in placement under federal law, including but

not limited to placement in an interim alternative educational setting

pursuant to clause (iv) or (vii) of subparagraph three of paragraph g of

subdivision three of section thirty-two hundred fourteen of this

chapter, was a manifestation of the student's disability, provided that

other qualified school district personnel may participate in such

review.

* NB Effective June 30, 2027

* (k) In accordance with the regulations of the commissioner and

subsection (k) of section fourteen hundred fifteen of title twenty of

the United States code and the implementing federal regulations, to

determine the setting and services to be provided in the interim

alternative educational setting for a student with a disability who

carries or possesses a weapon to or at school, on school premises, or to

or at a school function or knowingly possesses or uses illegal drugs or

sells or solicits the sale of a controlled substance while at school or

a school function or who has inflicted serious bodily injury upon

another person as defined in federal law and the setting and services to

be provided to a student with a disability in an interim alternative

educational setting or other setting who is removed because of behavior

that has been determined not to be a manifestation of the student's

disability.

* NB Effective until June 30, 2027

* (k) In accordance with the regulations of the commissioner and

subsection (k) of section fourteen hundred fifteen of title twenty of

the United States code and the implementing federal regulations, to

determine the services to be provided in the interim alternative

educational placement for a student with a disability who carries or

possesses a weapon to or at school, on school premises, or to or at

school function or knowingly possesses or uses illegal drugs or sells or

solicits the sale of a controlled substance while at school or a school

function and the services to be provided to a student with a disability

who is removed because of behavior that has been determined not to be a

manifestation of the student's disability.

* NB Effective June 30, 2027

(l) In accordance with the regulations of the commissioner and the

provisions of subsection (k) of section fourteen hundred fifteen of

title twenty of the United States code, and the implementing federal

regulations, to conduct expedited evaluations under the circumstances

specified in such federal law and regulations and to conduct such

reviews and make such determinations regarding students presumed to have

a disability for discipline purposes as defined in subdivision three of

section thirty-two hundred fourteen of this chapter as are required

under the federal individuals with disabilities education act and

implementing regulations.

(3-a) 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 subcommittee or his or her respective

school district who, acting reasonably and in good faith, provides such

information shall not be liable for such action.

(4) (a) When the committee on special education of a local school

district determines that a child who is living in his or her own home is

at risk of a future placement in a residential school, as determined in

accordance with guidelines established by the department pursuant to

subdivision nineteen of section forty-four hundred three of this

article, the committee shall provide the parent or other person in

parental relationship with information, where such information has been

made available to the committee, about the community support services

that may be available to the family, including an assessment of the

family's community support services needs in accordance with such

guidelines and, where such an assessment is available, the name and

address of the agency which can perform the assessment.

* (b) When the committee on special education of a local school

district determines that a child who is receiving foster care is at risk

of a future placement in a residential school, the committee, with the

consent of the parent or person in parental relation or the student, if

he or she is over the age of eighteen, shall notify the social services

district responsible for the child of its determination that the child

is at risk of placement.

* NB Effective until June 30, 2027

* (b) When the committee on special education of a local school

district determines that a child who is receiving foster care is at risk

of a future placement in a residential school, the committee shall

notify the social services district responsible for the child of its

determination that the child is at risk of placement.

* NB Effective June 30, 2027

* (c) The committee on special education, with the consent of the

parent or person in parental relation or the student, if he or she is

over the age of eighteen, shall request in writing a designee of the

appropriate county or state agency to participate, in accordance with

guidelines established by the department, in any proceeding of the

committee where a child is at risk of residential placement. The

committee shall forward a copy of any such request to the office for

people with developmental disabilities and the office of mental health.

A designee or designees of the agency may participate in any such

proceeding for the purpose of making recommendations concerning the

appropriateness of residential placement and other programs and

placement alternatives, including, but not limited to, community support

services that may be available to the family. Such designee or designees

shall not be considered members of the committee. Such designee or

designees shall include, but not be limited to, representatives of any

agency receiving coordinated children's services initiative funding as

referenced in the aid to localities budget, of a local interagency

coordinating body, of the social services district, the local mental

health agency, or health department, or of the developmental

disabilities service office, as appropriate. The name of such designee

or designees, if any, shall be made available to each committee on

special education in the county. In addition, with the consent of the

parent or other person in parental relation, the committee may confer

with other appropriate providers of services to identify any services

that may be of benefit to the family based on the family's

identification of or the committee's observation of family services

needs. As used in this chapter, the term "county" means county as

defined in section four thousand one of this title, and the term

"appropriate agency" means one of the following agencies:

(i) a local interagency body capable of performing a multidisciplinary

assessment of the family's community support services needs; or

(ii) if no such agency exists in the locality, any county agency which

is receiving state coordinated children's services initiative funding as

referenced in the aid to localities budget; or

(iii) where neither such agency exists in the locality, either the

area developmental disabilities services office, where the primary

reason the child is at risk of placement relates to a developmental

disability, or the local mental health agency, where the primary reason

the child is at risk of placement relates to any other mental

disability.

* NB Effective until June 30, 2027

* (c) The committee on special education shall request in writing a

designee of the appropriate county or state agency to participate, in

accordance with guidelines established by the department, in any

proceeding of the committee where a child is at risk of residential

placement. The committee shall forward a copy of any such request to the

office for people with developmental disabilities and the office of

mental health. A designee or designees of the agency may participate in

any such proceeding for the purpose of making recommendations concerning

the appropriateness of residential placement and other programs and

placement alternatives, including, but not limited to, community support

services that may be available to the family. Such designee or designees

shall not be considered members of the committee. Such designee or

designees shall include, but not be limited to, representatives of any

agency receiving coordinated children's services initiative funding as

referenced in the aid to localities budget, of a local interagency

coordinating body, of the social services district, the local mental

health agency, or health department, or of the developmental

disabilities service office, as appropriate. The name of such designee

or designees, if any, shall be made available to each committee on

special education in the county. In addition, with the consent of the

parent or other person in parental relationship, the committee may

confer with other appropriate providers of services to identify any

services that may be of benefit to the family based on the family's

identification of or the committee's observation of family services

needs. As used in this chapter, the term "county" means county as

defined in section four thousand one of this title, and the term

"appropriate agency" means one of the following agencies:

(i) a local interagency body capable of performing a multidisciplinary

assessment of the family's community support services needs; or

(ii) if no such agency exists in the locality, any county agency which

is receiving state coordinated children's services initiative funding as

referenced in the aid to localities budget; or

(iii) where neither such agency exists in the locality, either the

area developmental disabilities services office, where the primary

reason the child is at risk of placement relates to a developmental

disability, or the local mental health agency, where the primary reason

the child is at risk of placement relates to any other mental

disability.

* NB Effective June 30, 2027

(d) Nothing in this subparagraph shall be construed to establish an

entitlement to or constitute a determination of eligibility for any such

assessment or services, or to require the school district to pay the

costs of such assessment or services or to require that such services be

reflected in the plan of educational services and programs recommended

or approved for the child, or to limit educational services to be made

available to the child or to justify the denial, reduction, or delay of

such services to the child. No cause of action for damages shall arise

in favor of any person by reason of any failure to comply with the

provisions of this section except upon a showing of gross negligence or

willful misconduct.

(e) Notwithstanding any inconsistent provision of law, residential

schools are authorized to provide temporary care for persons over age

twenty-one who are receiving transitional care as described in section

7.37-a or 13.37-a of the mental hygiene law, or on whose behalf

temporary payments are being made pursuant to sections 7.38 or 13.38 of

the mental hygiene law, where such persons were in the care of the

residential school at the time of their twenty-first birthday and such

persons have remained continuously in the care of the residential school

since their twenty-first birthday.

(f) Notwithstanding any inconsistent provision of law, in any case

where an individual receiving transitional care is about to be

transferred from a residential school to an adult placement, a transfer

plan shall be prepared by the sending facility and forwarded to the

receiving facility, the individual and, unless the individual objects,

the parents, guardian or other family members prior to the transfer. The

transfer plan shall include any information necessary to facilitate a

safe transfer, such as specific problems, a schedule for administering

medications and behavior unique to the individual.

(5) The committee on special education or, in the case of a state

operated school, the multidisciplinary team shall not later than the

annual review prior to the eighteenth birthday of a student with a

disability who is placed in a residential program by the committee or

multidisciplinary team, or a student with a disability who is placed in

a day program but the committee or multidisciplinary team has determined

that the student is likely to require adult residential services, with

the consent of the parents, notify and invite a representative of the

office of mental health, office for people with developmental

disabilities, or the state education department, as appropriate, to

participate in the committee on special education meeting for the

development of a recommendation for adult services pursuant to section

7.37 or 13.37 of the mental hygiene law, section three hundred

ninety-eight-c of the social services law or section forty-four hundred

three of this article. The committee or multidisciplinary team shall

give the parent or guardian of the child, the opportunity to consent in

writing to the release of relevant information to such other public

agency or agencies, upon request of such agency or agencies, for

purposes of determining appropriateness of an adult program for such

student.

(a) For the purposes of this subparagraph "relevant information" shall

be defined as that information in the possession of and used by the

committee or the multidisciplinary team to ascertain the physical,

mental, emotional and cultural-educational factors which contribute to

the student's disability, including but not limited to: (i) results of

physical and psychological examinations performed by private and school

district physicians and psychologists; (ii) relevant information

presented by the parent, guardian and teacher; (iii) school data which

bear on the student's progress including the student's most recent

individualized education program; (iv) results of the most recent

examinations and evaluations performed pursuant to clause (d) of

subparagraph three of this paragraph; and (v) results of other suitable

evaluations and examinations possessed by the committee or

multidisciplinary team. Nothing in this subparagraph shall be construed

to require any committee or multidisciplinary team to perform any

examination or evaluation not otherwise required by law.

(b) Upon consent obtained pursuant to this subparagraph, the committee

or multidisciplinary team shall forward the student's name and other

relevant information in a report to the appropriate public agency as

determined by the committee or multidisciplinary team, based upon the

student's disability and physical, mental, emotional and social needs.

The committee shall forward additional and updated relevant information

to the appropriate public agency upon the request for such information

by such agency, with the consent of the parents, or the student, if such

student is eighteen years or older.

(c) When the committee or multidisciplinary team is notified by the

public agency which received the report that such state agency is not

responsible for determining and recommending adult services for the

child, the committee or multidisciplinary team shall forward the report

to another public agency; or, if the committee or multidisciplinary team

determines that there exists a dispute as to which state agency has the

responsibility for determining and recommending adult services, the

committee or multidisciplinary team may forward the report to the

council on children and families for a resolution of such dispute.

(6) The committee on special education shall provide a copy of the

handbook for parents of children with disabilities established under

subdivision eight of section four thousand four hundred three of this

article or a locally approved booklet for parents of children with

disabilities to the parents or person in parental relationship to a

child as soon as practicable after such child has been referred for

evaluation to the committee on special education.

2. a. The board of education or trustees of each school district shall

be required to furnish suitable educational opportunities for students

with disabilities by one of the special services or programs listed in

subdivision two of section forty-four hundred one of this article. The

need of the individual child shall determine which of such services

shall be rendered. Each district shall provide to the maximum extent

appropriate such services in a manner which enables students with

disabilities to participate in regular education services when

appropriate. Such services or programs shall be furnished between the

months of September and June of each year, except that for the nineteen

hundred eighty-seven--eighty-eight school year and thereafter, with

respect to the students whose disabilities are severe enough to exhibit

the need for a structured learning environment of twelve months duration

to maintain developmental levels, the board of education or trustees of

each school district upon the recommendation of the committee on special

education shall also provide, either directly or by contract, for the

provision of special services and programs as defined in section

forty-four hundred one of this article during the months of July and

August as contained in the individualized education program for each

eligible student, and with prior approval by the commissioner if

required; provided that a student with a disability who is eligible for

services, including services during the months of July and August,

pursuant to section forty-four hundred ten of this article shall not be

eligible to receive services pursuant to this paragraph during the

months of July and August.

b. (1) Provided, however, that in each school district the board of

education or trustees of such district are hereby authorized and

empowered to contract for such special services or programs as such

board shall deem reasonable and appropriate for such children with

disabilities after consideration of the recommendations of the local

committee on special education and the hearing officer if a hearing is

held pursuant to section forty-four hundred four of this chapter and,

where specified in subparagraph two of this paragraph, with the approval

of the commissioner after a finding by him that no appropriate special

services or programs specified in paragraphs a through d and k of

subdivision two of section forty-four hundred one are available.

(2) The board shall select the most reasonable and appropriate special

service or program for such children from those programs specified in

paragraphs a, b, c, e, f, g, h, i, k, l and m of subdivision two of

section forty-four hundred one of this article upon receipt of the

recommendation of the committee on special education. All contracts with

schools pursuant to the provisions of paragraphs d, e, f, g, h, l and m

of subdivision two of section forty-four hundred one of this article

shall be subject to the approval of the commissioner. All contracts

under paragraph c of subdivision two of section forty-four hundred one

shall be made in accordance with the provisions of subdivision four of

section nineteen hundred fifty of this chapter. No child shall be placed

in a residential school nor shall a board recommend placement in a

residential facility specified in paragraph j of subdivision two of

section forty-four hundred one unless there is no appropriate

nonresidential school available consistent with the needs of the child.

The board shall provide written notice of its determination to the

parent or legal guardian of such child. If the determination of the

board of education is not consistent with the recommendations of the

committee on special education, such notice shall include the statement

of the reasons for such determination which shall identify the factors

considered by the committee on special education in its evaluation.

(3) If the board cannot secure an appropriate special service within

the state or non-residential program to meet the needs of the child, it

shall notify the commissioner.

c. Nothing in this section shall be deemed or construed to prohibit a

committee on special education from recommending a special service or

program specified in paragraph d of subdivision two of section

forty-four hundred one of this chapter or to diminish the power of the

commissioner to make appointments pursuant to such paragraph.

* d. 1. Notwithstanding any provision of law, rule or regulation to

the contrary, the board of education or trustees of a school district,

except a city school district in a city with a population of one million

or more inhabitants may, upon written notice to the commissioner in

compliance with subparagraph two of this paragraph and parental

notification, for the remainder of the school year exceed the standards

established in regulation for special education class sizes for middle

and secondary school students as defined by the commissioner for

purposes of this section by no more than a twenty percent increase above

such standards, provided that the district is in compliance with such

standards at the start of classes in September of the school year, and

further provided that a city school district in a city with a population

of one hundred twenty-five thousand or more and less than one million

inhabitants shall have the option of either increasing maximum class

sizes in any school year pursuant to this section or establishing class

sizes for special classes for certain students with disabilities in

accordance with the provisions of subdivision six of this section.

2. The notice shall be on a form prescribed by the commissioner, and

shall sufficiently demonstrate educational justification and consistency

with continuing an appropriate education for all children affected. The

commissioner may revoke or preempt any increase in class size upon a

finding that increasing class size as proposed would fail to be

consistent with appropriate special education.

* NB Repealed July 1, 2027

3. Each school district shall make available a register of public or

private agencies and other professional resources within the county from

which a parent or person in parental relationship may obtain an

independent evaluation of the child.

4. a. The board of education or the board of trustees of each school

district shall provide suitable transportation to and from special

classes or programs, with the exception of residential facilities for

the care and treatment of children with disabilities under the

jurisdiction of an agency of the state other than the state department

of education, as specified in subdivisions two and four of section

forty-four hundred one of this article.

b. Such board may permit any adult, willing to serve without

compensation, to act as an attendant for such children.

c. Such board shall be empowered to contract for transportation

services provided pursuant to this subdivision with any municipality,

Board of Cooperative Educational Services, public authority or private

contractor meeting the school bus provisions outlined in section

thirty-six hundred twenty-three of this chapter and the standards and

specifications relating thereto.

d. Notwithstanding any other provision of law, such board shall

provide suitable transportation up to a distance of fifty miles to and

from a nonpublic school which a child with a disability attends if such

child has been so identified by the local committee on special education

and such child attends such school for the purpose of receiving services

or programs similar to special educational programs recommended for such

child by the local committee on special education.

5. Notwithstanding any provisions of this article to the contrary or

the provisions of section thirty-two hundred two of this chapter, a

child with a disability who reaches the age of twenty-one during (a) the

period commencing with the first day of July and ending on the

thirty-first day of August shall if otherwise eligible, be entitled to

continue in a July and August program until the thirty-first day of

August or until the termination of the summer program, whichever shall

first occur; or (b) the period commencing on the first day of September

and ending on the thirtieth day of June shall be entitled to continue in

such program until the thirtieth day of June or until the termination of

the school year, whichever shall first occur.

6. Notwithstanding any other law, rule or regulation to the contrary,

the board of education of a city school district with a population of

one hundred twenty-five thousand or more inhabitants shall be permitted

to establish maximum class sizes for special classes for certain

students with disabilities in accordance with the provisions of this

subdivision. For the purpose of obtaining relief from any adverse fiscal

impact from under-utilization of special education resources due to low

student attendance in special education classes at the middle and

secondary level as determined by the commissioner, such boards of

education shall, during the school years nineteen hundred

ninety-five--ninety-six through June thirtieth, two thousand

twenty-seven, be authorized to increase class sizes in special classes

containing students with disabilities whose age ranges are equivalent to

those of students in middle and secondary schools as defined by the

commissioner for purposes of this section by up to but not to exceed one

and two tenths times the applicable maximum class size specified in

regulations of the commissioner rounded up to the nearest whole number,

provided that in a city school district having a population of one

million or more, classes that have a maximum class size of fifteen may

be increased by no more than one student and provided that the projected

average class size shall not exceed the maximum specified in the

applicable regulation, provided that such authorization shall terminate

on June thirtieth, two thousand. Such authorization shall be granted

upon filing of a notice by such a board of education with the

commissioner stating the board's intention to increase such class sizes

and a certification that the board will conduct a study of attendance

problems at the secondary level and will implement a corrective action

plan to increase the rate of attendance of students in such classes to

at least the rate for students attending regular education classes in

secondary schools of the district. Such corrective action plan shall be

submitted for approval by the commissioner by a date during the school

year in which such board increases class sizes as provided pursuant to

this subdivision to be prescribed by the commissioner. Upon at least

thirty days notice to the board of education, after conclusion of the

school year in which such board increases class sizes as provided

pursuant to this subdivision, the commissioner shall be authorized to

terminate such authorization upon a finding that the board has failed to

develop or implement an approved corrective action plan.

7. a. The board of education or trustees of each school district and

the board of trustees of each charter school shall adopt a policy to

ensure that each regular education teacher, special education teacher,

related service provider, and other service provider who is responsible

for the implementation of a student's individualized education program

shall be given a copy of such student's individualized education program

prior to the implementation of such program or shall be able to access

such student's individualized education program electronically;

provided, however, if the policy provides that the student's

individualized education program is to be accessed electronically, then

such policy shall also ensure that the individuals responsible for the

implementation of a student's individualized education program shall be

notified and trained on how to access such individualized education

programs electronically.

b. Such policy shall require that any copy of a student's

individualized education program provided pursuant to this subdivision

shall remain confidential and shall not be redisclosed to any other

person, in compliance with federal and state laws and regulations,

including the Individuals with Disabilities Education Act and the Family

Educational Rights and Privacy Act.

c. Such policy shall require the chair of the committee on special

education to designate a professional employee of the school district

with knowledge of the student's disability and education program to,

prior to the implementation of the individualized education program,

inform each teacher, assistant and support staff person of his or her

responsibility relating to the implementation of the individualized

education program and the specific accommodations, modifications, and

supports that must be provided for the student in accordance with the

individualized education program.

8. Upon their child's enrollment or attendance in a public school,

such school shall notify every parent or person in parental relation of

their rights regarding referral and evaluation of their child for the

purposes of special education services or programs pursuant to

applicable federal and state laws. Such notification may be provided by

directing parents or persons in parental relation to obtain information

located on the department's website relating to a parent's guide to

special education in New York state for children ages three through

twenty-one provided the notification shall also contain the name and

contact information for the chairperson of the school district's

committee on special education or other individual who is charged with

processing referrals to the committee in the district.

9. The board of education or trustees of each school district shall

develop a procedure to notify the parent or person in parental relation

of a student with a disability on the same day a physical or mechanical

restraint is applied on such student or such student is placed in a time

out room. When the student's parent or person in parental relation

cannot be contacted after reasonable attempts are made, the principal

shall record and report such attempts to the committee on special

education.