N.Y. Education Law § 4410: Special education services and programs for preschool children with disabilities

§ 4410. Special education services and programs for preschool children

with disabilities. 1. Definitions. As used in this section:

a. "Approved evaluator" means either:

(1) a program approved by the commissioner pursuant to paragraph b of

subdivision nine of this section; or

(2) a school district or group of appropriately licensed and/or

certified professionals associated with a public or private agency

approved by the commissioner pursuant to subdivision nine-a of this

section.

b. "Approved program" means a program approved by the commissioner

pursuant to paragraph a of subdivision nine of this section.

c. "Board" means:

(i) a board of education as defined in section two of this chapter; or

(ii) trustees of a common school district as defined in section

sixteen hundred one of this chapter.

d. "City or county official" means the chief executive officer, or, in

any county which does not have a chief executive officer, the county

governing body, or the mayor of the city of New York.

e. "Committee" means committee on preschool special education.

f. "First eligible for services" means the earliest date on which a

child becomes age-eligible for services pursuant to this section, and as

defined in regulations of the commissioner in accordance with applicable

federal law and regulations, except that a child who is already

receiving services under section two hundred thirty-six of the family

court act or its successor may, if the parent so chooses, continue to be

eligible to receive such services through August thirty-first of the

calendar year in which the child first becomes age-eligible to receive

services pursuant to this section.

g. "Municipality" means a county outside the city of New York or the

city of New York in the case of a county contained within the city of

New York.

h. "Parent" means parent or person in parental relation.

i. "Preschool child" means a child with a disability as defined in

section forty-four hundred one of this article who is first eligible for

services as defined in paragraph f of this subdivision but who will not

have become five years of age on or before December first of the school

year, or a later date if a board establishes such later date for

eligibility to attend school. A child shall be deemed a preschool child

through the month of August of the school year in which the child first

becomes eligible to attend school pursuant to section thirty-two hundred

two of this chapter.

j. "Related services" means those services as defined in paragraph k

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

provided to a preschool child at a site determined by the board,

including but not limited to an approved or licensed prekindergarten or

head start program; the work site of the provider; the child's home; a

hospital; a state facility; or a child care location as defined in

paragraph a of subdivision eight of this section. If the board

determines that documented medical or special needs of the preschool

child indicate that the child should not be transported to another site,

the child shall be entitled to receive related services in the preschool

child's home.

k. "Special education itinerant services" means an approved program

provided by a certified special education teacher on an itinerant basis

in accordance with the regulations of the commissioner, at a site

determined by the board, including but not limited to an approved or

licensed prekindergarten or head start program; the child's home; a

hospital; a state facility; or a child care location as defined in

paragraph a of subdivision eight of this section. If the board

determines that documented medical or special needs of the preschool

child indicate that the child should not be transported to another site,

the child shall be entitled to receive special education itinerant

services in the preschool child's home.

2. Provision of services. The board of each school district shall be

responsible for the provision of special education services and programs

to preschool children in accordance with the provisions of subdivision

two of section four thousand four hundred one of this article, except as

otherwise limited by regulations of the commissioner; provided, however,

that prior to July first, nineteen hundred ninety-one, a board shall be

responsible for the provision of special education services and programs

to a preschool child only to the extent that there is an approved

program available for such preschool children.

3. Committee on preschool special education. a. Each such board shall

establish one or more committees to conduct meetings to develop, review

and revise the individualized education program of a preschool child

with a disability.

* (1) Such board shall ensure that such committee is composed of at

least the following members: (i) the parents of the preschool child;

(ii) a regular education teacher of such child, whenever the child is or

may be participating in a regular education environment; (iii) a special

education teacher of the child or, if appropriate, a special education

provider of the child; (iv) an appropriate professional employed by the

school district who is qualified to provide, or supervise the provision

of, special education, who is knowledgeable about the general curriculum

of the school district and the availability of preschool special

education programs and services and other resources in the school

district and the municipality, and who shall serve as chairperson of the

committee; (v) an additional parent of a child with a disability who

resides in the school district or a neighboring school district and

whose child is enrolled in a preschool or elementary level education

program, provided that such parent shall not be employed by or under

contract with the school district or municipality, and provided further

that such additional parent shall not be a required member unless the

parents, or a member of the committee on preschool special education,

request that such additional parent member participate in accordance

with this subparagraph; (vi) an individual who can interpret the

instructional implications of evaluation results, provided that such

individual may be the member appointed pursuant to clause (ii), (iii),

(iv) or (vii) of this subparagraph where such individuals are determined

by the school district to have the knowledge and expertise to do so;

(vii) such other persons having knowledge or expertise regarding the

child as the board or the parents shall designate, to the extent

required under federal law; and for a child in transition from programs

and services provided pursuant to applicable federal laws relating to

early intervention services, at the request of the parent or person in

parental relation to the child, the appropriate professional designated

by the agency that has been charged with the responsibility for the

preschool child pursuant to said applicable federal laws. In addition,

the chief executive officer of the municipality of the preschool child's

residence shall appoint an appropriately certified or licensed

professional to the committee. Attendance of the appointee of the

municipality shall not be required for a quorum. The additional parent

need not be in attendance at any meeting of the committee on preschool

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 or a member of the

committee on preschool 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.

* NB Effective until June 30, 2027

* (1) Such board shall ensure that such committee is composed of at

least the following members: (i) the parents of the preschool child;

(ii) a regular education teacher of such child, whenever the child is or

may be participating in a regular education environment; (iii) a special

education teacher of the child or, if appropriate, a special education

provider of the child; (iv) an appropriate professional employed by the

school district who is qualified to provide, or supervise the provision

of, special education, who is knowledgeable about the general curriculum

of the school district and the availability of preschool special

education programs and services and other resources in the school

district and the municipality, and who shall serve as chairperson of the

committee; (v) an additional parent of a child with a disability who

resides in the school district or a neighboring school district and

whose child is enrolled in a preschool or elementary level education

program, provided that such parent shall not be employed by or under

contract with the school district or municipality, and provided further

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

parents request that such additional parent member not participate; (vi)

an individual who can interpret the instructional implications of

evaluation results, provided that such individual may be the member

appointed pursuant to clause (ii), (iii), (iv) or (vii) of this

subparagraph where such individuals are determined by the school

district to have the knowledge and expertise to do so; (vii) such other

persons having knowledge or expertise regarding the child as the board

or the parents shall designate, to the extent required under federal

law; and for a child in transition from programs and services provided

pursuant to applicable federal laws relating to early intervention

services, the appropriate professional designated by the agency that has

been charged with the responsibility for the preschool child pursuant to

said applicable federal laws. In addition, the chief executive officer

of the municipality of the preschool child's residence shall appoint an

appropriately certified or licensed professional to the committee.

Attendance of the appointee of the municipality shall not be required

for a quorum.

* NB Effective June 30, 2027

(2) At least five business days prior to a meeting of the committee on

preschool special education notice of such meeting shall be given to

each committee member, including the appointee of the municipality, and

the parent of the preschool child, in writing by first class mail,

postage prepaid, telefacsimile, or by personal service. The

appropriately licensed or certified professional designated by the

agency that has been charged with the responsibility for the preschool

child pursuant to applicable federal laws relating to early intervention

services shall attend all meetings of the committee conducted prior to

the child's initial receipt of services pursuant to this section. The

regular education teacher of the child shall participate in the

development, review and revision of an individualized education program

for the child to the extent required under federal law. A member of such

committee shall be considered as a member of a committee on special

education for the purposes of section thirty-eight hundred eleven of

this chapter.

* (3) Notwithstanding any provision of law, rule or regulation to the

contrary, a member of the committee on preschool special education,

other than the parents or persons in parental relation to the student or

the appointee of the municipality, 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

* (4) Notwithstanding any provision of law, rule or regulation to the

contrary, a member of the committee on preschool special education,

other than the parents or persons in parental relation to the student or

the appointee of the municipality, 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

* (5) Requests for excusal of a member of the committee on preschool

special education as provided for in subparagraphs three and four of

this paragraph, and the written input as provided for in subparagraph

four of this paragraph, 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 committee on preschool education 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

* (6) Notwithstanding any other provision of law, rule or regulation

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 preschool 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:

(i) 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

(ii) 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 dominant 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.

(iii) 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 committee on preschool special education 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

clause shall not affect the requirement that the committee on preschool

special education review the individualized education program at the

annual meeting, or more often if necessary.

* NB Repealed June 30, 2027

b. Two or more boards may, subject to the approval of the

commissioner, establish a joint committee. Boards seeking to establish

such a joint committee shall apply to the commissioner for approval on a

form prescribed by the commissioner. Such application shall include, but

not be limited to, a plan for holding meetings in a manner and at a

location convenient for parents.

c. A municipality with one or more boards located within the

municipality may coordinate the scheduling and location of meetings with

the prior consent of such board or boards and the approval of the

commissioner.

d. The committee shall review, at least annually, the status of each

preschool child.

e. In any meeting held to review or evaluate a preschool child, the

preschool child's parent shall be given the opportunity to attend and

participate in the meeting. The committee shall permit individuals

invited by the parent to be present. To the extent possible, any meeting

of the committee shall be held at a site mutually convenient to the

members of the committee and the parent of the preschool child,

including but not limited to the work site of the evaluator, the

municipal representative on the committee, or the chairperson of the

committee. In a city having a population of less than two hundred fifty

thousand but more than two hundred thousand and in a city having a

population of less than one hundred seventy-five thousand but more than

one hundred fifty thousand, the chairperson of the committee shall

determine the location of the meeting.

f. After notification by a service coordinator, as defined in section

twenty-five hundred forty-one of the public health law, that a child

receiving services pursuant to title II-A of article twenty-five of the

public health law potentially will transition to receiving services

under this section and that a conference is to be convened to review the

child's program options and establish a transition plan, which

conference must occur at least ninety days before such child would be

eligible for services under this section, the chairperson of the

committee on preschool special education of the local school district or

his or her designee in which such child resides shall participate in the

conference.

g. In any meeting of the committee held to review or reevaluate the

status of a preschool child, the professional who participated in the

evaluation shall, upon the request of the parent or committee, attend

and participate at such meeting.

4. Evaluations. a. The board shall identify each preschool child

suspected of having a disability who resides within the district and,

upon referral to the committee shall, with the consent of the parent,

provide for an evaluation related to the suspected disability of the

child. The board shall make such identification in accordance with

regulations of the commissioner.

b. Each board shall, within time limits established by the

commissioner, be responsible for providing the parent of a preschool

child suspected of having a disability with a list of approved

evaluators in the geographic area. The parent may select the evaluator

from such list. Each board shall provide for dissemination of the list

and other information to parents at appropriate sites including but not

limited to pre-kindergarten, day care, head start programs and early

childhood direction centers, pursuant to regulations of the

commissioner.

c. The documentation of the evaluation shall include all assessment

reports and a summary report of the findings of the evaluation on a form

prescribed by the commissioner including a detailed statement of the

preschool child's individual needs. The summary report shall not make

reference to any specific provider of special services or programs. In

addition, with the consent of the parents, approved evaluators and

committees shall be provided with the most recent evaluation report for

a child in transition from programs and services provided pursuant to

title two-a of article twenty-five of the public health law. Nothing

shall prohibit an approved evaluator or the committee from reviewing

other assessments or evaluations to determine if such assessments or

evaluations fulfill the requirements of the regulations of the

commissioner. Notwithstanding any inconsistent provisions of this

section, the committee, in its discretion, may obtain an evaluation of

the child from another approved evaluator prior to making any

recommendation that would place a child in the approved program that

conducted the evaluation of the child. If the committee recommends

placing a child in an approved program that also conducted an evaluation

of such child it shall indicate in writing that such placement is an

appropriate one for the child. In addition, the committee shall provide

notice to the commissioner of such recommendation.

d. The approved evaluator shall, following completion of the

evaluation, transmit the documentation of the evaluation to all members

of the committee and to a person designated by the municipality in which

the preschool child resides. Each municipality shall notify the approved

evaluators in the geographic area of the person so designated. The

summary report of the evaluation shall be transmitted in English and

when necessary, also in the dominant language or other mode of

communication of the parent; the documentation of the evaluation shall

be transmitted in English and, upon the request of the parent, also in

the dominant language or other mode of communication of the parent,

unless not clearly feasible to do so pursuant to regulations promulgated

by the commissioner. Costs of translating the summary report and

documentation of the evaluation shall be separately reimbursed. If,

based on the evaluation, the committee finds that a child has a

disability, the committee shall use the documentation of the evaluation

to develop an individualized education program for the preschool child.

Nothing herein shall prohibit an approved evaluator from at any time

providing the parent with a copy of the documentation of the evaluation

provided to the committee.

e. Prior to the committee meeting at which eligibility will be

determined, the committee shall provide the parent with a copy of the

summary report of the findings of the evaluation, and shall provide the

parent with written notice of the opportunity to address the committee

in person or in writing. Upon timely request of the parent, the

committee shall, prior to meeting, provide a copy of all written

documentation to be considered by the committee; provided, however, that

such material shall be provided to the parent at any time upon request.

f. If the parent disagrees with the evaluation, the parent may obtain

an additional evaluation at public expense to the extent authorized by

federal law or regulation.

5. Determination of services. a. The committee shall review all

relevant information, including but not limited to:

(i) information presented by the parent and the child's teacher or

teachers pertinent to each child suspected of having a disability;

(ii) the results of all evaluations; and

(iii) information provided by the appropriate licensed or certified

professional designated by the agency that is charged with the

responsibility for the child pursuant to applicable federal laws, if

any.

b. (i) If the committee determines that the child has a disability,

the committee shall recommend approved appropriate services or special

programs and the frequency, duration and intensity of such services,

including but not limited to the appropriateness of single services or

half-day programs based on the individual needs of the preschool child.

The committee shall first consider the appropriateness of providing: (i)

related services only; (ii) special education itinerant services only;

(iii) related services in combination with special education itinerant

services; (iv) a half-day program, as defined in the regulations of the

commissioner; (v) a full day program; in meeting the child's needs. If

the committee determines that the child demonstrates the need for a

single related service, such service shall be provided as a related

service only or, where appropriate, as a special education itinerant

service. Prior to recommending the provision of special education

services in a setting which includes only preschool children with

disabilities, the committee shall first consider providing special

education services in a setting which includes age-appropriate peers

without disabilities. Provision of special education services in a

setting with no regular contact with such age-appropriate peers shall be

considered only when the nature or severity of the child's disability is

such that education in a less restrictive environment with the use of

supplementary aids and services cannot be achieved satisfactorily. The

committee's recommendation shall include a statement of the reasons why

less restrictive placements were not recommended. The committee may

recommend placement in a program that uses psychotropic drugs only if

the program has a written policy pertaining to such use and the parent

is given a copy of such written policy at the time such recommendation

is made.

(ii) The committee shall recommend approved appropriate services or

special programs. The recommendation shall be based on the individual

needs of the preschool child. Appropriate services may include one or

more related services selected from a list maintained by a municipality

pursuant to paragraph c of subdivision nine of this section; provided,

however, that if the committee recommends one or more related services

from such list, or itinerant services, the committee shall request that

the parent identify the initial child care location arranged by the

parent, or other site, at which each such service will be provided.

(iii) The reasons for such recommendation shall be in writing and

shall be furnished to the preschool child's parent, the municipality in

which the preschool child resides and the board. If the committee's

recommendation differs from an expressed preference of a parent with

respect to the frequency, duration or intensity of services, or with

respect to more or less restrictive settings, the committee shall

include in its statement the reasons why the committee recommended a

program or service other than that preferred by the parent. The

committee shall include in its recommendation any statement or

statements provided by the parent, which the board shall consider.

(iv) 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 his or her respective school district who,

acting reasonably and in good faith, provides such information shall not

be liable for such action.

c. After consideration of the recommendation of the committee and its

statement of reasons, including any statement or statements of a parent

setting forth an expressed preference, the board shall arrange for the

provision of the recommended special services or programs from among the

special services and programs approved for such purpose by the

commissioner. In the event the special service or program will be

provided in the child's home or another care setting for which the

parent has made or subsequently makes arrangements, no transportation

shall be indicated.

d. If the board disagrees with the recommendation of the committee, it

shall set forth in writing a statement of its reasons and send the

recommendation back to the committee, a notice of which shall be

furnished to the preschool child's parent and the municipality in which

the preschool child resides. In the event a board refers the

recommendation back to the committee for reconsideration, the board

shall also notify the parent and the committee in writing of the need to

schedule a meeting to ensure timely placement. If the determination is

for two or more related services, where possible, the board shall select

from the list maintained by the municipality pursuant to paragraph c of

subdivision nine of this section such related service providers that are

employed by a single agency for the provision of such services. The

board shall provide each related service provider with a copy of the

individualized education program and the name and location of each

related service provider. The board shall designate one of the service

providers to coordinate the provision of the related services. If the

determination is for special education itinerant services and one or

more related services, the special education itinerant service provider

shall be responsible for the coordination of such services pursuant to

regulations of the commissioner.

* e. A preschool child shall receive the services of a program

arranged for by the board commencing with the starting date for such

program, unless such services are recommended by the committee less than

thirty days prior to, or after, the starting date for such program, in

which case, such services shall be provided as soon as possible

following development of the individualized education program, but no

later than thirty days from the recommendation of the committee;

provided, however, that in no case shall a child receive services prior

to the date that such child is first eligible for services pursuant to

paragraph f of subdivision one of this section.

* NB Effective until June 30, 2027

* e. A preschool child shall receive the services of a program

arranged for by the board commencing with the starting date for such

program, unless such services are recommended by the committee less than

thirty days prior to, or after, the starting date for such program, in

which case, such services shall be provided no later than thirty days

from the recommendation of the committee; provided, however, that in no

case shall a child receive services prior to the date that such child is

first eligible for services pursuant to paragraph f of subdivision one

of this section.

* NB Effective June 30, 2027

f. The board shall give written notice of the special services or

programs arranged for to the appropriate municipality, and to the

related service provider or the approved program selected to provide the

services. The municipality shall contract with the approved program in a

timely manner but in no event later than forty days from the receipt of

written notice of the determination of the board. If the municipality is

a city of one million or more persons, the municipality may delegate

contracting authority to the board. The contract shall include but not

be limited to any provisions required by the commissioner, shall adhere

to the rates established pursuant to subdivision ten of this section as

applicable and shall be in a form approved by the commissioner. After

receipt of notification from a municipality of actions taken pursuant to

this paragraph and subdivision eight of this section, the commissioner

shall issue a notice of authorization for reimbursement to the

municipality pursuant to the provisions of subdivisions ten and eleven

of this section. Provided further, any agreement for transportation

services pursuant to subdivision eight of this section shall be a

contract, separate and distinct from the contract for special services

or programs pursuant to this section, between the municipality and the

approved program which shall include but not be limited to any

provisions required by the commissioner on a form prescribed by the

commissioner.

g. The board shall determine the appropriate municipality based on the

municipality within the school district in which the preschool child

resides at the time such board issues its written notice of

determination. The board shall terminate such determination if the board

arranges for the provision of a new service or program for such child or

if the preschool child moves out of the school district or moves to a

different municipality within the school district. If the board

terminates such determination for a preschool child because such child

moves to a different municipality within the school district, such board

shall issue a new written notice of determination for the same special

education service or program effective the next school day which shall

become the responsibility of the new municipality in which such child

resides. Pursuant to regulations promulgated by the commissioner, if the

preschool child moves to a school district that is within a reasonable

distance of the child's current approved placement such child may

continue in such placement if it is consistent with the individualized

needs of the child and the board of the new school district shall issue

a notice of determination to continue such placement, provided that

nothing shall preclude a parent from requesting and receiving from the

committee of the new school district a reevaluation of the continued

placement of such preschool child prior to the annual review

establishing the placement for the next school year.

h. Such special services or programs shall be furnished between the

months of September and June of each year, except for those preschool

children whose disabilities are severe enough to exhibit the need for a

structured learning environment of twelve months duration to prevent

substantial regression. The committee shall include in its

recommendation for such services or programs a statement of the reasons

for such recommendation. The board, after consideration of the

recommendation of the committee, shall select an appropriate special

service or program for each preschool child eligible for such special

service or program during the months of July and August from among those

programs approved for such purpose by the commissioner. Nothing

contained herein shall be construed to prevent the committee from

recommending or the board from selecting a special service or program,

or the frequency or duration of a special service or program, which is

different in type or intensity than the service or program that the

child is furnished between the months of September and June.

6. Professional practice issues. a. Notwithstanding any provisions of

law to the contrary, approved programs operated by private providers

shall be authorized to employ licensed professionals or contract with

licensed professionals or entities legally authorized to provide

professional services in accordance with section sixty-five hundred

three-b of this chapter.

b. An approved program may be formed as an education corporation, or

with the consent of the commissioner as: (i) a not-for-profit

corporation; (ii) a business corporation that has the operation of an

approved program or another special education school as a primary

purpose; (iii) a limited liability company; (iv) a professional service

limited liability company or a foreign professional service limited

liability company in accordance with the applicable provisions of

article twelve or thirteen of the limited liability company law; (v) a

registered limited liability partnership or registered foreign limited

liability partnership in accordance with article eight-B of the

partnership law. In addition, a group of appropriately licensed or

certified professionals may be formed as a professional services

corporation established pursuant to article fifteen of the business

corporation law or as a professional service limited liability company,

foreign professional service limited liability company or registered

limited liability partnership or registered foreign limited liability

partnership in accordance with article eight-B of the partnership law.

An approved program formed as such a professional service limited

liability company or registered limited liability partnership may be

authorized to provide special education itinerant services or other

educational services not involving the practice of a profession under

title eight of this chapter, and, upon grant of a waiver pursuant to

section sixty-five hundred three-b of this chapter, may employ or

contract with individuals licensed or otherwise authorized to practice,

or with a professional service corporation, partnership or other entity

legally authorized to practice any profession under title eight of this

chapter in which the entity would not be authorized to provide

professional services under the applicable provisions of section twelve

hundred three or subdivision (a) of section thirteen hundred one of the

limited liability company law or sections 121-1500 or 121-1502 of the

partnership law, provided that such contract is within the scope of the

department's approval and is only for the purpose of conducting a

multi-disciplinary evaluation of a preschool child suspected of having a

disability or a preschool child with a disability or providing related

services specified in the individualized education program of a

preschool child with a disability.

c. Notwithstanding any other provision of law to the contrary, the

exemption in subdivision two of section eighty-two hundred seven of this

chapter shall apply to persons employed by a center-based program

approved pursuant to subdivision nine of this section to perform the

duties of a speech-language pathologist, audiologist, teacher of the

speech and deaf and hard of hearing or teacher of the deaf to students

enrolled in such approved center-based program in the course of their

employment.

* d. Notwithstanding any other provision of law to the contrary, the

exemption in subdivision one of section seventy-six hundred five of this

chapter shall apply to persons employed on a full-time or part-time

salary basis, which may include on an hourly, weekly, or monthly basis,

or on a fee for evaluation services basis provided that such person is

employed by and under the dominion and control of a center-based program

approved pursuant to subdivision nine of this section as a certified

school psychologist to provide activities, services and use of the title

psychologist to students enrolled in such approved center-based program;

and to certified school psychologists employed on a full-time or

part-time salary basis, which may include on an hourly, weekly, or

monthly basis, or on a fee for evaluation services basis provided that

the school psychologist is employed by and under the dominion and

control of a program that has been approved pursuant to paragraph b of

subdivision nine of this section, or subdivision nine-a of this section,

to conduct a multi-disciplinary evaluation of a preschool child having

or suspected of having a disability where authorized by paragraph a of

subdivision six of section sixty-five hundred three-b of this chapter,

in the course of their employment. Nothing in this section shall be

construed to authorize a certified school psychologist or group of such

school psychologists to engage in independent practice or practice

outside of an employment relationship.

* NB Effective until June 30, 2028

* d. Notwithstanding any other provision of law to the contrary, the

exemption in subdivision one of section seventy-six hundred five of this

chapter shall apply to persons employed by a center-based program

approved pursuant to subdivision nine of this section as a school

psychologist to provide activities, services and use of the title

psychologist to students enrolled in such approved center-based program

in the course of their employment.

* NB Effective June 30, 2028

7. Appeals. * a. The parent may file a written request with the board

for an impartial hearing with respect to any matter relating to the

identification, evaluation or educational placement of, or provision of

a free appropriate public education to, the preschool child or a

manifestation determination or other matter relating to the preschool

child's placement upon discipline, provided, however, that mediation

shall be available to the parent in accordance with the procedures

specified in section forty-four hundred four-a of this article.

* NB Effective until June 30, 2027

* a. If the determination of the board is not acceptable to the

parent, or if the committee or board fails to make or effectuate such a

recommendation within such periods of time as are required by

subdivision five of this section or by the regulations of the

commissioner, such parent may file a written request with the board for

an impartial hearing, provided, however, that mediation shall be

available to the parent in accordance with the procedures specified in

section forty-four hundred four-a of this article.

* NB Effective June 30, 2027

* b. Upon receipt of such request, the board shall provide for a

hearing to be conducted in accordance with the provisions of subdivision

one of section forty-four hundred four of this article. The impartial

hearing officer shall render a decision, and mail a copy of the decision

to the parents and to the board, not later than thirty calendar days

after the receipt by the board of a request for a hearing or after the

initiation of such a hearing by the board. The decision of the impartial

hearing officer shall be based solely upon the record of the proceeding

before the impartial hearing officer, and shall set forth the reasons

and the factual basis for the determination. The decision shall also

include a statement advising the parents and the board of the right to

obtain a review of such a decision by a state review officer. The board

may initiate a hearing to the extent provided in subdivision one of

section forty-four hundred four of this article.

* NB Effective until June 30, 2027

* b. Upon receipt of such request, the board shall provide for a

hearing to be conducted in accordance with the provisions of subdivision

one of section forty-four hundred four of this article. The impartial

hearing officer shall render a decision, and mail a copy of the decision

to the parents and to the board, not later than thirty calendar days

after the receipt by the board of a request for a hearing or after the

initiation of such a hearing by the board. The decision of the impartial

hearing officer shall be based solely upon the record of the proceeding

before the impartial hearing officer, and shall set forth the reasons

and the factual basis for the determination. The decision shall also

include a statement advising the parents and the board of the right to

obtain a review of such a decision by a state review officer.

* NB Effective June 30, 2027

* c. During the pendency of an appeal pursuant to this subdivision,

unless the board and the parent otherwise agree:

(i) a preschool child who has received services pursuant to

subdivision five of this section, shall remain in the current

educational placement; or

(ii) a preschool child not previously served pursuant to this section

shall, if the parent agrees, receive services in the program designated

by the board pursuant to such subdivision five, which designation

resulted in such appeal.

A preschool child who is transitioning from part C of the individuals

with disabilities education act and/or title two-A of article

twenty-five of the public health law and is no longer eligible for

services under part C and title two-A of article twenty-five of the

public health law by reason of age, the school district or other public

agency is not required to provide the services that the child had been

receiving under part C and such title two-A. If the child is found

eligible for special education programs and services pursuant to this

section, and the parent or person in parental relation consents to the

initial provision of services, then the school district or other public

agency shall provide those special education programs and services that

are not in dispute between the parent and the school district or other

public agency.

* NB Effective until June 30, 2027

* c. During the pendency of an appeal pursuant to this subdivision,

unless the board and the parent otherwise agree:

(i) a preschool child who has received services pursuant to

subdivision five of this section, shall remain in the current

educational placement; or

(ii) a preschool child not previously served pursuant to this section

shall, if the parent agrees, receive services in the program designated

by the board pursuant to such subdivision five, which designation

resulted in such appeal; or

(iii) a preschool child who received services pursuant to section two

hundred thirty-six of the family court act during the previous year may

receive, from the provider of such services, preschool special education

services in an approved program appropriate to the needs of such child.

* NB Effective June 30, 2027

d. A state review officer of the education department shall review the

decision of the impartial hearing officer in the manner prescribed in

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

render a decision no later than thirty days after the decision of such

hearing officer.

e. Review of the final determination or order of the state review

officer may be brought in the manner prescribed in subdivision three of

section forty-four hundred four of this article.

8. Transportation. The municipality in which a preschool child resides

shall, beginning with the first day of service, provide either directly

or by contract for suitable transportation, as determined by the board,

to and from special services or programs; provided, however, that if the

municipality is a city with a population of one million or more persons

the municipality may delegate the authority to provide such

transportation to the board; and provided further, that prior to

providing such transportation directly or contracting with another

entity to provide such transportation, such municipality or board shall

request and encourage the parents to transport their children at public

expense, where cost-effective, at a rate per mile or a public service

fare established by the municipality and approved by the commissioner.

Except as otherwise provided in this section, the parents' inability or

declination to transport their child shall in no way affect the

municipality's or board's responsibility to provide recommended

services. Such transportation shall be provided once daily from the

child care location to the special service or program and once daily

from the special service or program to the child care location up to

fifty miles from the child care location. If the board determines that a

child must receive special services and programs at a location greater

than fifty miles from the child care location, it shall request approval

of the commissioner. For the purposes of this subdivision, the term

"child care location" shall mean a child's home or a place where care

for less than twenty-four hours a day is provided on a regular basis and

includes, but is not limited to, a variety of child care services such

as day care centers, family day care homes and in-home care by persons

other than parents. All transportation of such children shall be

provided pursuant to the procedures set forth in section two hundred

thirty-six of the family court act using the date called for in the

written notice of determination of the board or the date of the written

notice of determination of the board, whichever comes later, in lieu of

the date the court order was issued. Notwithstanding this subdivision or

any provision of law to the contrary, transportation expenses incurred

by a municipality for operating and maintenance costs pursuant to this

subdivision during the period between the issuance of executive order

202.4 on March sixteenth, two thousand twenty and the issuance of

executive order 202.28 on May seventh, two thousand twenty shall be

reimbursable and considered approved costs in accordance with the

provisions of this section and the regulations of the commissioner.

9. Program approval. a. Providers of special services or programs

shall apply to the commissioner for program approval on a form

prescribed by the commissioner; such application shall include, but not

be limited to, a listing of the services to be provided, the population

to be served, a plan for providing services in the least restrictive

environment and a description of its evaluation component, if any. The

commissioner shall approve programs in accordance with regulations

adopted for such purpose and shall periodically review such programs at

which time the commissioner shall provide the municipality in which the

program is located or for which the municipality bears fiscal

responsibility an opportunity for comment within thirty days of the

review. In collaboration with municipalities and representatives of

approved programs, the commissioner shall develop procedures for

conducting such reviews. Municipalities shall be allowed to participate

in such departmental review process. Such review shall be conducted by

individuals with appropriate experience as determined by the

commissioner and shall be conducted not more than once every three

years.

(iii) Commencing July first, nineteen hundred ninety-six and

continuing through June thirtieth, two thousand three, a moratorium on

the approval of any new or expanded programs in settings which include

only preschool children with disabilities is established. Exceptions

shall be made for cases in which school districts document a critical

need for a new or expanded program in a setting which includes only

preschool children with disabilities, to meet the projected demand for

services for preschool children in the least restrictive environment.

Applications for new or expanded programs may be made directly to the

state education department. Nothing herein shall prohibit the

commissioner from approving the modification of a full-day program into

half-day sessions.

Commencing July 1, 1999 the department shall only approve any new or

expanded programs in settings which include only preschool children with

disabilities, if the applicant can document a critical need for a new or

expanded program in a setting which includes only preschool children

with disabilities to meet the projected demand for services for

preschool children in the least restrictive environment. If the

department determines that approval will not be granted, it must notify

the applicant, in writing, of its reasons for not granting such

approval. The department shall establish guidelines, within 90 days of

the effective date of this section which shall state the criteria used

to determine if the applicant has demonstrated such a critical need. The

department is authorized to consult with the local school district to

verify any data submitted.

On December 1, 2003 the commissioner shall submit a report to the

board of regents, the majority leader of the senate, the speaker of the

assembly and governor evaluating the impact of such moratorium on the

availability of preschool special education services. The report shall

include: (i) information regarding the number of applications for new

programs and program expansions and the disposition of those

applications by the commissioner; (ii) an assessment of the projected

need for additional classes serving only disabled children and those

serving disabled children with their non-disabled peers and in other

less restrictive settings; (iii) an assessment of the projected need for

additional programs due to program closings in the region, number of

children receiving early intervention services and existing waiting

lists; (iv) an assessment of the distance that children must be

transported to receive preschool special education services; (v) an

evaluation of the programmatic performance and cost-effectiveness of

existing programs; (vi) recommendations regarding ways in which improved

quality and cost-effectiveness could be achieved through the selective

expansion of effective programs and/or the curtailment of less effective

programs; and (vii) an assessment of the availability and effectiveness

of approved programs providing services to preschool children with

autism.

b. As part of an application submitted pursuant to paragraph a of this

subdivision, a provider of special services or programs shall submit a

description of its multi-disciplinary evaluation component, if any,

which shall be subject to the approval of the commissioner in accordance

with regulations adopted for such purpose after consultation with the

appropriate advisory committee. Such components or program may rely in

part on formal written agreements or affiliations with appropriately

certified or licensed professionals, or agencies employing such

professionals, provided that such professionals or agencies perform

their responsibilities in conformance with regulations of the

commissioner and that providers fully disclose any such arrangements on

all applications for program approval, and provided further that the

provider certifies that it shall apply for and obtain a waiver pursuant

to section sixty-five hundred three-b of this chapter prior to providing

evaluation services pursuant to such written agreements or affiliations.

Nothing herein shall require a provider of special services or programs

to have a multidisciplinary evaluation program.

c. Municipalities, or in the case of a city of one million or more

persons, the board, shall maintain a list of appropriately certified or

licensed professionals to deliver related services consistent with this

section and the regulations of the commissioner and shall determine

reasonable reimbursement for such services subject to the approval of

the commissioner. Such list shall also include reasonable reimbursement,

as determined by the municipality and approved by the commissioner and

the director of the budget, for the coordination of two or more related

services pursuant to paragraph d of subdivision five of this section.

d. Providers may make application to conduct a program that relies on

formal written agreements or affiliations with other approved programs

or appropriately certified or licensed professionals, provided that such

arrangements are fully disclosed on all applications to the commissioner

for program approval, and provided further that the provider certifies

it shall apply for and obtain a waiver pursuant to section sixty-five

hundred three-b of this chapter prior to providing related services

pursuant to any such written agreements or affiliations involving

licensed professionals.

e. Nothing herein shall preclude an approved program from providing

services in the preschool child's home.

f. As part of an application submitted pursuant to paragraph a of this

subdivision, a provider of special services or programs shall describe

any program in which preschool children will receive services in

conjunction with children placed pursuant to section two hundred

thirty-six of the family court act or title II-A of article twenty-five

of the public health law. If such preschool program otherwise meets the

criteria for approval of preschool programs established by regulations

of the commissioner, the commissioner shall approve such program.

g. As part of an application submitted pursuant to paragraph a of this

subdivision, a provider of special services or programs shall certify

pursuant to regulations promulgated by the commissioner that it will

take measures to ensure its executive director or person performing the

duties of a chief executive officer: (i) meets the criteria established

by the commissioner to be an executive director; and (ii) if paid as a

full time executive director, he or she is employed in a full time, full

year position and shall not engage in activity that would interfere with

or impair such executive director's ability to carry out and perform his

or her duties, responsibilities and obligations.

* 9-a. (a) A group of appropriately licensed and/or certified

professionals associated with a public or private agency may apply to

the commissioner for approval as an evaluator on a form prescribed by

the commissioner. The commissioner shall approve evaluators pursuant to

this subdivision consistent with the approval process for the

multi-disciplinary evaluation component of programs approved pursuant to

subdivision nine of this section consistent with regulations adopted

pursuant to such subdivision. All school districts are deemed approved

evaluators of preschool students suspected of having a disability

without the need to submit an application to the commissioner if staff

who provide such evaluation services shall have appropriate licensure

and/or certification.

Such application shall include, but not be limited to, a description

of the multi-disciplinary evaluation services proposed to be provided

and a demonstration that all agency employees and staff who provide such

evaluation services shall have appropriate licensure and/or

certification and that the individual who shall have direct supervision

responsibilities over such staff shall have an appropriate level of

experience in providing evaluation or services to preschool or

kindergarten-aged children with disabilities. To be eligible for

approval as an evaluator under this subdivision on and after July first,

two thousand eleven, a group of appropriately licensed or certified

professionals shall be formed as a limited liability company or

professional services corporation established pursuant to article

fifteen of the business corporation law, article twelve or thirteen of

the limited liability company law or article eight-B of the partnership

law. The approval of any groups of licensed or certified professionals

that are in existence on July first, two thousand eleven and would not

be eligible for approval thereafter shall terminate on July first, two

thousand thirteen.

(b) The commissioner shall periodically review such evaluators at

which time the commissioner shall provide the municipality in which the

evaluator is located an opportunity for comment.

(c) The commissioner shall establish a billing and reimbursement

system for services provided by school districts and evaluators approved

pursuant to the provisions of this subdivision consistent with billing

and reimbursement for evaluation services provided by evaluators

approved pursuant to the provisions of subdivision nine of this section.

* NB Repealed July 1, 2027

9-b. Program reapproval process. The commissioner shall periodically

review and reapprove programs, including the provision of evaluation

services, in accordance with regulations adopted for such purpose, which

shall include reapproval criteria designed to assure that quality

services are provided in a necessary and cost efficient manner and in

the least restrictive environment which may include settings in which

age-appropriate peers without disabilities are typically found. In

reviewing programs and the provision of evaluation services, the

commissioner shall consider factors including, but not limited to, the

percentage of children receiving services from the approved program that

conducted the evaluation of the child; and whether there has been

evidence of misleading or erroneous advertising. The division of the

budget shall consider in a timely manner all requests submitted by the

department to hire sufficient staff to conduct such periodic reapproval

of programs, as determined by the commissioner, using available federal

funds.

Such reapproval process shall provide the municipality in which the

program is located or for which the municipality bears fiscal

responsibility, an opportunity for comment thirty or more days prior to

completion of the reapproval. In collaboration with municipalities and

representatives of approved programs, the commissioner shall develop

procedures for conducting such reapprovals. Municipalities shall be

allowed to participate in such departmental review process. Such

reapprovals shall be conducted by individuals with appropriate

experience as determined by the commissioner and shall be conducted not

more than once every three years, unless the commissioner, on his or her

own initiative or at the request of a municipality, determined that

reapprovals are earlier or more frequently required. The commissioner

shall commence such reapproval process no later than January fifteenth,

nineteen hundred ninety-seven. Program reapprovals may result in

disapproval of the entire program or a component of the program,

including but not limited to the evaluation component. In reapproving a

program component, such approval criteria shall include, but not be

limited to:

a. the extent to which the program offers services in settings with

regular contact with age-appropriate peers, where appropriate to the

needs of the population served; and

b. whether there has been evidence of misleading or erroneous

advertising.

Such reapproval shall assure an appropriate opportunity to be heard on

the findings of the reapproval and the opportunity to address such

findings through corrective or remedial action, where applicable. Such

reapproval process shall also provide for the determination of action on

the part of the department to address the findings of the reapproval

which may include, but not be limited to, the withdrawal of approval to

provide evaluation services.

9-c. Advertising. The commissioner is authorized to require approved

programs and evaluators to periodically submit copies of advertising for

review, and to commence a proceeding to revoke the approval of an

approved program or evaluator pursuant to this subdivision for false,

misleading, deceptive or fraudulent advertising pursuant to regulations

to be promulgated by the commissioner, which shall be consistent with

article twenty-two-a of the general business law. Such regulations shall

prohibit advertisements from including misleading or erroneous

information with respect to services to be provided to preschool

children and their families. The department shall issue guidelines as to

appropriate advertising content. In a revocation proceeding, such

guidelines shall not be presumptive evidence that particular advertising

is appropriate.

9-d. Business plans. Approved providers of special services and

programs, including local educational agencies, shall develop and submit

to the commissioner, by January first, nineteen hundred ninety-seven, a

business plan, the contents of which shall be determined by the

commissioner, which redirects fiscal and personnel resources toward

providing special education programs and services in settings with

children who do not have disabilities, and reduces the reliance on

programs and settings which include only preschool children with

disabilities.

10. Approved costs. a. (i) (A) Commencing with the nineteen hundred

ninety--ninety-one school year, the commissioner shall annually

determine the tuition rate for approved services or programs provided to

preschool children pursuant to this section. Such rates for providers of

such services and programs shall be determined in conformance with a

methodology established pursuant to subdivision four of section

forty-four hundred five of this article after consultation with and a

review of an annual report prepared by the advisory committee

established pursuant to paragraph a of subdivision twelve of this

section and shall be subject to the approval of the director of the

budget. Notwithstanding any other provision of law, rule or regulation

to the contrary, tuition rates established for the nineteen hundred

ninety-five--ninety-six school year shall exclude the two percent cost

of living adjustment authorized in rates established for the nineteen

hundred ninety-four--ninety-five school year.

(B) Commencing with the two thousand fifteen--two thousand sixteen

school year, such special education itinerant services shall be provided

by approved programs, and such approved programs shall be reimbursed for

such services based on the actual attendance of preschool children

receiving such services.

(C) Notwithstanding any other provision of law, rule or regulation to

the contrary, on or before the two thousand sixteen--two thousand

seventeen school year and thereafter, to be phased-in over no more than

four years from such starting year, the commissioner, subject to the

approval of the director of the budget, shall establish regional tuition

rates for special education itinerant services based on average actual

costs in accordance with a methodology established pursuant to

subdivision four of section forty-four hundred five of this article.

(D) Notwithstanding any other provision of law, rule or regulation to

the contrary, commencing with the two thousand eighteen--two thousand

nineteen school year, approved preschool integrated special class

programs shall be reimbursed for such services based on an alternative

methodology for reimbursement to be established by the commissioner. In

developing such methodology the commissioner shall seek input from

stakeholders that would be impacted by such alternative methodology. The

alternative methodology, subject to the approval of the director of the

budget, shall be proposed by the department no later than April first,

two thousand eighteen.

(ii) Upon request, the commissioner shall, on a timely basis, transmit

to the municipality in which an approved program is located any

information provided by such approved program for the purpose of

establishing a rate for the program.

(iii) Following determination of tuition rates pursuant to

subparagraph (i) of this paragraph, the commissioner shall submit such

rates to the director of the budget for approval and shall

simultaneously transmit to each municipality the rates for programs

located in the municipality. Within thirty calendar days of the

commissioner's transmittal date, the municipality may submit comments in

writing to the commissioner. The commissioner shall consider such

comments and, if he deems it appropriate, adjust such rate prior to

final action by the director of the budget. If the commissioner does not

adjust the rate, the commissioner shall respond to the comments

presented by the municipality.

b. Reimbursement for evaluations conducted by approved evaluators

shall be provided pursuant to regulations of the commissioner after

consultation with the advisory committee established pursuant to

paragraph a of subdivision twelve of this section and shall be subject

to approval by the director of the budget.

c. Approved costs for transportation shall be the costs incurred by

the municipality in accordance with the provisions of subdivision eight

of this section. The commissioner shall establish, in consultation with

the municipalities, and with the approval of the director of the budget,

regional ceilings for each region of the state, as defined by the

commissioner, on the maximum allowable state reimbursement. In

developing such ceilings, the commissioner shall consider the size of

the geographic area to be served, the projected number of children

requiring transportation services and such other factors as the

commissioner shall determine may influence the cost of transportation

services.

d. (i) At the beginning of the school year, the commissioner shall

allocate funds for reimbursement of allowable administrative costs, as

defined in regulations of the commissioner, incurred by a board pursuant

to this section. Such allocation shall be in an amount equal to a school

district's pro rata share of the statewide base year count of preschool

children as a percent of federal funds available for such reimbursement,

as determined by the commissioner. In January of any school year in

which additional federal funds are determined by the commissioner to be

available for such reimbursement, the commissioner shall equitably

allocate such funds for reimbursement of allowable administrative costs,

in a manner determined by the commissioner which is consistent with

federal statutes and regulations governing the use of federal funds, to

school districts which have demonstrated a need for such additional

funds. At the close of the school year for which such funds were

allocated, each board shall submit, in a form prescribed by the

commissioner, a statement of the allowable administrative costs incurred

pursuant to this section. A board may, subject to approval of the

commissioner, submit any allowable administrative costs for which

federal funds are not allocated to that school district pursuant to this

subdivision to the appropriate municipality or municipalities for

reimbursement pursuant to subdivision eleven of this section.

(ii) Boards may submit reasonable costs incurred pursuant to

paragraphs a through d of subdivision seven of this section to the

appropriate municipality for reimbursement. Boards may also submit to

the appropriate municipality for reimbursement of reasonable costs

incurred pursuant to paragraph e of subdivision seven of this section:

(A) in an action or proceeding brought by another party or (B) in an

action or proceeding brought by the board, other than an action or

proceeding brought against the state, a department, board or agency of

the state or a state officer, except where such state defendant is

joined as a necessary party to such action or proceeding, if, upon final

disposition of the action or proceeding, the board receives a judgment

in its favor annulling the determination or order of the state review

officer. The municipality shall be reimbursed for payment of such costs

pursuant to subdivision eleven of this section.

(iii) On or after July first, nineteen hundred ninety, and annually

thereafter until June thirtieth, two thousand one, municipalities shall

be eligible for reimbursement for administrative costs incurred during

the preceding year of fifty dollars for each eligible preschool child

served in such year pursuant to this section. On or after July first,

two thousand one, and annually thereafter, municipalities shall be

eligible for reimbursement for administrative costs incurred during the

preceding year of seventy-five dollars for each eligible preschool child

served in such year pursuant to this section. Each municipality shall

submit a claim in a form prescribed by the commissioner. Upon approval,

reimbursement shall be made by the commissioner from appropriations

available therefor. Such reimbursement shall be made in the first

instance from any federal funds designated under federal law for local

use, as determined by the commissioner, that are available after

satisfying the provisions of subparagraph (i) of this paragraph. To the

extent that such federal funds are not sufficient or available to

reimburse a municipality for such costs, reimbursement shall be made

with state funds.

e. Public special education funding provided for the purposes of this

section shall not be used to purchase regular preschool educational

services, day care or other child care services, or to purchase any

instructional service other than special services or programs as defined

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

in this section, and the purchase of such regular preschool educational

services and child care services shall not be approvable pursuant to

this section as a charge upon the municipality or the board.

11. Financial responsibility for approved costs. a. The approved costs

for a preschool child who receives services pursuant to this section

shall be a charge upon the municipality wherein such child resides. All

approved costs shall be paid in the first instance and at least

quarterly by the appropriate governing body or officer of the

municipality upon vouchers presented and audited in the same manner as

the case of other claims against the municipality. Notwithstanding any

inconsistent provisions of this section, upon notification by the

commissioner, a municipality may withhold payments due any provider for

services rendered to preschool children in a program for which the

commissioner has been unable to establish a tuition rate due to the

failure of the provider to file complete and accurate reports for such

purpose, as required by the commissioner.

b. (i) Commencing with the reimbursement of municipalities for

services provided pursuant to this section on or after July first,

nineteen hundred ninety-three, the state shall reimburse fifty-nine and

one half percent of the approved costs paid by a municipality for the

purposes of this section. Commencing with the reimbursement of

municipalities for services provided pursuant to this section on or

after July first, nineteen hundred ninety-four, the state shall

reimburse sixty-nine and one-half percent of the approved costs paid by

a municipality for the purposes of this section. The state shall

reimburse fifty percent of the approved costs paid by a municipality for

the purposes of this section for services provided prior to July first,

nineteen hundred ninety-three. Such state reimbursement to the

municipality shall not be paid prior to April first of the school year

in which such approved costs are paid by the municipality.

(ii) In accordance with a schedule adopted by the commissioner, each

municipality which has been notified by a board of its obligation to

contract for the provision of approved special services or programs for

a preschool child shall be provided with a listing of all such children

by the commissioner. Such list shall include approved services and costs

as prescribed by the commissioner for each such child for whom the

municipality shall certify, on such list, the amount expended for such

purposes and the date of expenditure. Upon the receipt of such certified

statement, the commissioner shall examine the same, and if such

expenditures were made as required by this section, the commissioner

shall approve it and transmit it to the comptroller for audit. The

comptroller shall thereupon issue his warrant, in the amount specified

in such approved statement for the payment thereof out of moneys

appropriated therefor, to the municipal treasurer or chief fiscal

officer as the case may be.

(iii) (a) Notwithstanding the provisions of this paragraph, any monies

due municipalities pursuant to this paragraph for services provided

during the two thousand eight--two thousand nine and prior school years

shall be reduced by an amount equal to the product of the percentage of

the approved costs reimbursed by the state pursuant to subparagraph (i)

of this paragraph and any federal participation, pursuant to title XIX

of the social security act, in special education programs provided

pursuant to this section. The commissioner shall deduct such amount, as

certified by the commissioner of health as the authorized fiscal agent

of the state education department. Such deductions shall be made in

accordance with a plan developed by the commissioner and approved by the

director of the budget. To the extent that such deductions exceed moneys

owed to the municipality pursuant to this paragraph, such excess shall

be deducted from any other payments due the municipality.

(b) Any moneys due municipalities pursuant to this paragraph for

services provided during the two thousand nine--two thousand ten school

year and thereafter, or for services provided in a prior school year

that were not reimbursed by the state on or before April first, two

thousand eleven, shall, in the first instance, be designated as the

state share of moneys due a municipality pursuant to title XIX of the

social security act, on account of school supportive health services

provided to preschool students with disabilities pursuant to this

section. Such state share shall be assigned on behalf of municipalities

to the department of health, as provided herein; the amount designated

as such nonfederal share shall be transferred by the commissioner to the

department of health based on the monthly report of the commissioner of

health to the commissioner; and any remaining moneys to be apportioned

to a municipality pursuant to this section shall be paid in accordance

with this section. The amount to be assigned to the department of

health, as determined by the commissioner of health, for any

municipality shall not exceed the federal share of any moneys due such

municipality pursuant to title XIX of the social security act. Moneys

designated as state share moneys shall be paid to such municipality by

the department of health based on the submission and approval of claims

related to such school supportive health services, in the manner

provided by law.

(iv) Notwithstanding any other provision of law to the contrary, no

payments shall be made by the commissioner pursuant to this section on

or after July first, nineteen hundred ninety-six based on a claim for

services provided during school years nineteen hundred

eighty-nine--ninety, nineteen hundred ninety--ninety-one, nineteen

hundred ninety-one-ninety-two, nineteen hundred

ninety-two--ninety-three, nineteen hundred ninety-three--ninety-four,

and nineteen hundred ninety-four--ninety-five which is submitted later

than two years after the end of the nineteen hundred

ninety-five--ninety-six school year; provided, however, that no payment

shall be barred or reduced where such payment is required as a result of

a court order or judgment or a final audit, and provided further that

the commissioner may grant a waiver to a municipality excusing the late

filing of such a claim upon a finding that the delay was caused by a

party other than the municipality or a board to which the municipality

delegated authority pursuant to paragraph f of subdivision five or

subdivision eight of this section.

(v) Notwithstanding any other provision of law to the contrary, no

payments shall be made by the commissioner pursuant to this section on

or after July first, nineteen hundred ninety-six based on a claim for

services provided in the nineteen hundred ninety-five--ninety-six school

year or thereafter which is submitted later than three years after the

end of the school year in which services were rendered, provided,

however, that no payment shall be barred or reduced where such payment

is required as a result of a court order or judgment or a final audit,

and provided further that the commissioner may grant a waiver to a

municipality excusing the late filing of such a claim upon a finding

that the delay was caused by a party other than the municipality or a

board to which the municipality delegates authority pursuant to

paragraph f of subdivision five or subdivision eight of this section.

(vi) Notwithstanding any other provision of law to the contrary,

beginning with state reimbursement otherwise payable in the two thousand

six--two thousand seven state fiscal year and in each year thereafter,

payments pursuant to this section, subject to county agreement and in

the amounts specified in such agreement, shall be paid no later than

June thirtieth of the state fiscal year next following the state fiscal

year in which such reimbursement was otherwise eligible for payment and

in which the liability to the county for such state reimbursement

accrued, provided that such payments in a subsequent state fiscal year

shall be recognized by the state and the applicable county as satisfying

the state reimbursement obligation for the prior state fiscal year. Any

unspent amount associated with such county agreements shall not be

available for payments to other counties or municipalities.

c. (i) Each municipality, or, in addition, in the case of a city of

one million or more persons, the board, may perform a fiscal audit of

such services or programs for which it bears fiscal responsibility in

accordance with audit standards established by the commissioner, which

may include site visitation. The department shall provide guidelines on

standards and procedures to municipalities and boards, for fiscal audits

of services or programs pursuant to this section. Prior to commencing a

fiscal audit pursuant to this subparagraph, a municipality shall

ascertain that neither the state nor any other municipality has

performed a fiscal audit of the same services or programs within the

current fiscal year for such program. If it is determined that no such

audit has been performed, the municipality shall inquire with the

department to determine which other municipalities, if any, bear

financial responsibility for the services or programs to be audited and

shall afford such other municipalities an opportunity to recommend

issues to be examined through the audit. Municipalities completing

audits pursuant to this subparagraph shall provide copies to the

department, the provider of the services and programs and all other

municipalities previously determined to bear financial responsibility

for the audited services and programs. No other municipality may conduct

an additional fiscal audit of the same services or programs during such

current fiscal year for such program.

(ii) Payments made pursuant to this section by a municipality shall,

upon conclusion of the July first to June thirtieth school year for

which such payment was made, be subject to audit against the actual

difference between such audited expenditures and revenues. The

municipality shall submit the results of any such audit to the

commissioner and the commissioner of social services, if appropriate,

for review and, if warranted, adjustment of the tuition and/or

maintenance rates. The municipality is authorized to recover

overpayments made to a provider of special services or programs pursuant

to this section as determined by the commissioner or the commissioner of

health based upon their adjustment of a tuition and/or maintenance rate,

provided that for purposes of making such adjustment and recovery, the

municipality shall be deemed to have paid one hundred percent of the

disallowed costs. Such recovery may be accomplished by withholding such

amount from any moneys due the provider in the current year, or by

direct reimbursement. The commissioner shall promulgate rules and

regulations necessary to implement the provisions of this paragraph

within sixty days of the effective date of the chapter of the laws of

two thousand thirteen which amended this subparagraph.

12. Advisory committees. a. The commissioner shall establish an

advisory committee consisting of representatives of municipalities to

advise the commissioner on establishing the rate methodology authorized

by subdivision ten of this section.

b. The commissioner shall establish such other advisory committees as

he deems necessary to implement the provisions of this section.

13. a. The commissioner shall adopt regulations to implement the

provisions of this section. Such regulations shall include:

(i) regional cost ceilings on average per pupil transportation cost

for the reimbursement of transportation expenditures, where regions

shall be as defined by the commissioner;

(ii) the requirement that committees identify transportation options

for preschool children, consistent with this article, including

encouraging parents to transport their children at public expense where

cost-effective; and

(iii) the requirement that each program approved pursuant to the

provisions of this section shall make application to the commissioner

for approval to provide special education itinerant services.

b. The commissioner shall ensure that eligibility criteria are

consistently applied.

c. The commissioner shall, in consultation with clinicians trained in

early childhood educational services, municipal representatives,

representatives of parents of children requiring preschool and school

age special education services, representatives of statewide and

regional provider organizations, academic experts concerned with the

provision of special education services, and such other early childhood

education professionals as the commissioner shall deem appropriate,

develop clinical practice guidelines for the purpose of assisting

evaluators with respect to appropriate diagnosis and evaluation, and

committees with respect to the type, frequency and duration of services.

The commissioner may at his or her own discretion use existing advisory

committees and may add additional members to develop these guidelines.

Such guidelines shall be designed to assure that appropriate services

are provided in a manner which is necessary and cost efficient, and in

the least restrictive environment, and shall promote the education of

children in integrated settings with children who do not have

disabilities insofar as possible and appropriate, including through the

provision of related services or special education itinerant services.

* d. The commissioner shall establish procedures for administrative

appeals to resolve interagency disputes between boards and

municipalities over responsibility for provision of, or payment for,

special education programs or services to preschool children with

disabilities. During the pendency of any such appeal, the board or,

where applicable, a state department or agency responsible for

developing the preschool child's individualized education program, shall

provide and pay for the special education programs and services on the

preschool child's individualized education program and may seek

reimbursement in the appeal. The commissioner shall be authorized to

make all orders that in the commissioner's judgment are proper or

necessary to give effect to the decision in the appeal. Upon a

determination that a public agency has failed to provide or pay for such

special education programs and services, the commissioner shall certify

the amount of such costs to the state comptroller and the state

comptroller to deduct such amount from any state funds that become due

to such public agency.

* NB Repealed June 30, 2027