Relates to special education programs and services and implementation of the federal individuals with disabilities education improvement act; repealer

Summary of the provisions of the bill

This bill proposes to make permanent the series of amendments to the Education Law made by Chapter 352 of the Laws of 2005, Chapter 430 of the Laws of 2006 and Chapter 378 of the Laws of 2007 relating to New York's compliance with IDEA. Specifically, the bill contains the following provisions:

Section 1 of this legislation would repeal subdivision 17 of section 1950 of the Education Law to provide mandate relief to school districts by eliminating the requirement for five-year BOCES Special Education Space Requirements Plans.

Section 2 would amend §2215 of the Education Law to replace the BOCES special education plan requirement with a general provision placing responsibility for determining the adequacy and appropriateness of the facilities space available to house special education programs within the geographic area served by the BOCES consistent with the least restrictive environment requirement, with the District Superintendents of Schools.

Section 3 would amend Education Law §2856(1) to codify the formula used to compute the State aid attributable to a student attending a charter school in light of the shift to total Foundation aid. The amount of aid is the sum of the Foundation aid attributable to the student with a disability, computed by formula in the manner used to determine that portion of Foundation aid which a school district must set aside and use for special education programs and services, plus any high cost excess cost aid attributable to the student, plus any supplemental public excess cost aid attributable to the student.

Section 4 would make a series of amendments to §3602-c of the Education Law, relating to the provision of special education programs and services to students parentally placed in nonpublic schools through dual enrollment in the public schools.

The definition of "services" in paragraph a of subdivision 1 of §3602-c would be amended to provide for special education services in July and August for parentally placed students with disabilities enrolled in nonpublic schools through school districts of location pursuant to §3602-c and § 4408 of the Education Law relating to July and August services. A new paragraph e would be added to prescribe the conditions under which special education services would be available. As with public school students, a nonpublic school student whose disability is severe enough to exhibit the need for a structured learning environment of twelve months duration to maintain developmental levels shall be eligible to receive special education programs and services in July and August. However, this bill would specify that a nonpublic school student shall not be entitled pursuant to section 3602-c to placement in a special class or integrated co-teaching services, as such terms are defined in the regulations of the Commissioner, in July and August. The bill would also provide that the school district of location shall be eligible for state aid for such services exclusively pursuant to § 4408 of the Education Law.

Paragraph a of subdivision 2 would be amended to require parents to file a request for services with the district of location on or before the first of April of the preceding school year where the child has previously had an individualized educational service program developed and implemented or by June first of the preceding school year for those students first receiving special education services in the following school year or for whom an individualized educational service program is first developed and implemented on or after April first and on or before June first. The bill would also clarify that if a student is first identified as a student with a disability after June 1, the parent will have thirty days from the development of the individualized education services program to file a request for services with the district of location.

Subparagraph (1) of paragraph b of subdivision 2 of § 3602-c is amended to specify that a student has no entitlement under § 3602-c to placement in a special class or integrated co-teaching services, as such terms are defined in the regulations of the Commissioner, by the school district of location for all or part of the school day.

Finally, subparagraph (1) of paragraph b of subdivision 2 is also amended by section four to make mediation mandatory when due process complaints are brought to enforce rights created under State law under §3602-c. For due process complaints presented on or after 9/1/09, this bill would require that the matter be submitted to mediation and that at least one mediation session be held prior to making a request for an impartial hearing.

Section 5 would amend §3602-c(7) relating to the charge back of costs by school districts of location to school districts of residence. The bill would require the Commissioner of Education to establish regional rate methodologies for use by school districts in computing regional rates for the following three categories: costs of services, evaluations and special education administration. School districts of location would be able to elect to use these rate methodologies to compute regional rates for billing for all nonresident students receiving services under §3602-c(2) or could choose to compute actual costs on an individual student basis for all qualified nonresident students. The school district of location would have the flexibility to use the regional rates for one or more of the categories of costs and not for the other categories. Further, this section would establish a statute of limitations on claims for reimbursement, by requiring a school district of location to submit such claim to the school district of residence within one year from the end of the school year in which the costs were incurred or within 60 days of the effective date of this section, whichever is later.

In addition, section 5 would make a technical correction to delete language inadvertently added to paragraph c of subdivision 7 of § 3602-c that suggests that a charge back may be made for due process costs, when a charge back for due process costs is not authorized by paragraph b of subdivision 7.

Section 6 would amend §4402(2)(a) of the Education Law to remove the requirement that school districts obtain the written consent of the parent prior to the initial placement of the student in a July/August program recommended by the Committee on Special Education.

Section 7 would amend §4402(4)(d) of the Education Law to provide that where the board of education of a student's school district of residence provides transportation up to a distance of fifty miles to and from a nonpublic school which a student identified with a disability attends for the purpose of receiving services or programs from the nonpublic school which are similar to special education programs and services recommended for the student by the district of residence, the student would not be entitled to special education programs and services from the school district of location pursuant to § 3602-c of the Education Law. As a condition of eligibility for such transportation, the parent or person in parental relation to the student would be required to consent to the provision of notice by the school district of residence to the chairperson of the committee on special education of the school district in which the nonpublic school is located. Such notice must be provided by the district of residence no later than thirty days after commencing transportation services.

Section 8 would amend § 4404(1)(a) of the Education Law to create an exception to the two year statute of limitations for due process for tuition reimbursement claims for unilateral parental placements. The bill would require that a complaint seeking tuition reimbursement for the unilateral parental placement of a student in a private school be presented not more than one hundred and eighty days from the unilateral placement by the parent or person in parental relation in the private school.

Section 9 would amend Education Law § 4410(1)(f) to allow parents the option of having their child remain in an early intervention (EI) program until the last day of the school year in which the child turns age three.

Section 10 would amend § 2541(8) of the Public Health Law to allow a parent the option to have their child remain in an early intervention program until the last day of the school year in which the toddler with a disability turns age three. This bill also would clarify that "school year" means the period commencing July 1 and ending June 30.

Section 11 would amend section 22 of Chapter 352 of the Laws of 2005 relating to implementation of the federal Individuals with Disabilities Education Improvement Act of 2004 to prevent the sunset of such act on June 30, 2009 by repealing the expiration of the effective date to make such provisions permanent.

Section 12 would repeal section 8 of Chapter 430 of the Laws of 2006 relating to implementation of the federal Individuals with Disabilities Education Improvement Act of 2004 to prevent the sunset of portions of amendments made by sections 1,2,3,5, and 6 of such act on June 30, 2009 by repealing the expiration of the effective date to make such provisions permanent.

Section 13 would amend section 27 of Chapter 378 of the Laws of 2007 relating to implementation of the federal Individuals with Disabilities Education Improvement Act of 2004 to prevent the sunset of such act on June 30, 2009 by repealing the expiration of the effective date to make such provisions permanent.

Section 14 would be the effective date.

Statement in support of the bill

This bill would conform the Education Law to the IDEA by permanently adopting amendments to align state requirements with IDEA as amended by the Individuals with Disabilities Education Improvement Act of 2004 (Public Law 108-446) and the final federal regulations implementing IDEA 2004 (34 C.F.R. Part 300). Failure to permanently conform provisions of Education Law to the reauthorized IDEA and all provisions of the federal Part 300 regulations, which became effective on October 13, 2006, would result in a conflict between New York law and federal law and regulations that could expose both the state and school districts to legal challenge and possible loss of federal funds and would deny students with disabilities, parents and school districts the benefits they are intended to receive from the reforms made by IDEA.

The United States Department of Education (USED) requires the State to assure compliance with the new IDEA that went into effect on July 1, 2005. States were given until June 30, 2007 to conform their state laws to the new IDEA and the new Part 300 regulations. Chapter 352 of the Laws of 2005, Chapter 430 of the Laws of 2006 and Chapter 378 of the Laws of 2007 were enacted to bring New York into compliance with the IDEA, but all three acts will sunset on June 30, 2009.

Failure to continue the alignment of New York law with the new IDEA could result in a loss or delay of funding under Part B of IDEA. The United States Department of Education (USED) requires the State, prior to expenditure of its use of federal funds for state-level activities, to certify that arrangements to establish responsibility for services pursuant to 20 U.S.C. §1412(a)(12)(A) are current. Therefore, to ensure that the State is not prohibited from expending its federal state administration funds of more than $13 million to implement the IDEA or subject to more drastic sanctions for noncompliance with the IDEA, the provisions in Education Law enacted by these three prior acts must be extended or made permanent as proposed in this bill.

The provisions of Chapter 352 of the Laws of 2005, Chapter 430 of the Laws of 2006 and Chapter 378 of the Laws of 2007 that would be permanently adopted by this bill would conform New York State law to IDEA and the final federal regulations implementing IDEA and support the State's goals to: promote less adversarial mechanisms to resolve disputes between parents and school districts; ensure safe schools while protecting the rights of students with disabilities; and ensure that students who need special education, including students who are homeless, wards of the State, or who are enrolled in nonpublic elementary and secondary schools by their parents receive timely and appropriate services; and would increase accountability for results through proposed amendments that would require additional student data collection consistent with federal law. With the exception of the amendments to § 3602-c of the Education Law, which because of the complexities caused by shifting fiscal and programmatic responsibility for providing special education services to students parentally placed in nonpublic schools has caused confusion and ongoing disputes, there have been few issues raised with the provisions that were enacted in these three acts, and we are not proposing amendments to those provisions.

Because of concerns expressed by the field with how the provisions of § 3602-c relating to services for parentally placed students with disabilities attending nonpublic schools are being implemented, the State Education Department convened a Roundtable with representatives of nonpublic schools, parents, teachers, superintendents of schools, school administrators and school board members to discuss how the changes made to §3602-c by Chapter 378 of the Laws of 2007 are working and what changes should be made based on the experience of the past two years. The amendments to section 3602-c of the Education Law proposed are an outgrowth of the discussions at the Roundtable, and are based on the recommendations of these various constituency groups. The series of changes to § 3602-c proposed in this bill are intended to assure that students with disabilities attending nonpublic schools continue to receive the special education services they need from their school district of location, while balancing the need of school districts to avoid unnecessary costs, reduce disputes over billing issues and due process complaints that go to an impartial hearing and have timely notice that they must budget and make arrangement for services to dually enrolled students with disabilities.

First, this bill would amend § 3602-c to authorize the provision of services for students with disabilities in July and August by the school district of location in an individualized educational services program (IESP). Presently, the definition of "services" in Education Law §3602-c(1)(a) is limited to services provided in the regular school year. A student with a disability enrolled in a nonpublic school who needs a twelve month program must re-enroll in their school district of residence for the summer and receive July and August services through an individualized education program (IEP) developed by the Committee on Special Education (CSE) of the school district of residence. The school district of residence then contracts for such services and receives aid pursuant to Education Law § 4408. Recognizing the unnecessary burden this places on parents and the school district of residence, as well as the illogic and inefficiency of forcing the CSE of the school district of residence to develop an IEP for July and August for a parentally placed student with a disability, when another district's CSE is developing an IESP for the students, this bill would empower the school district of location to provide summer services through the student's IESP and to contract for and receive aid for such services pursuant to § 4408 of the Education Law.

This bill would also amend § 3602-c relating to the existing June 1st deadline for submission of a request for services by parents of parentally placed nonpublic students. For those students who have previously received services pursuant an IESP, this bill would require that a request for services be filed by April 1st which is the deadline for submission of requests for transportation by nonpublic school students and is better aligned with the budget cycle of the affected school districts. The June 1st deadline would be retained for students who have not previously had an IESP developed and implemented, particularly those who will be receiving special education services pursuant to an IESP for the first time in the following school year. This would assure that parents who are first placing their child in a nonpublic school have more time to decide whether to request services, while those whose parents have previously made a request for services are required to submit their request simultaneously with their transportation, to give the affected school districts time to plan and budget for the costs of services. In addition, this bill would clarify the provision that allows parents whose child is first identified as a student with a disability after June 1st to submit a request within 30 days of identification. In New York, the student would be identified when an IESP is developed, so this bill would clarify that the 30 day period runs from the development of the IESP.

This bill would also add language to clarify, both for July and August services and services provided during the regular school year, that a student parentally placed in a nonpublic school has no entitlement under § 3602-c to the provision of a special class or integrated co-teaching services. Section 3602-c is intended to authorize the provision of special education programs and services to supplement the regular education instruction provided by the nonpublic school. Unlike related services, resource room services, consultant teacher services and supplementary aids and services, which are designed to supplement regular education instruction, a special class or integrated co-teaching services necessarily involves a teacher providing a portion of the core regular educational program of the student. Such core instruction should be provided by the nonpublic school, and would be both costly and burdensome for the school district of location to provide.

To address concerns that too many disputes under Education Law § 3602-c are proceeding to due process hearings, which are costly to school districts and burdensome on both school districts and parents, this bill would make mediation mandatory prior to commencement of a due process hearing, whenever a due process complaint involves a dispute over rights under State law under § 3602-c. Where a due process complaint involves child find requirements, the federal rules would apply and mediation would continue to be optional. This bill would provide that at least one mediation session must be held prior to making a request for an impartial hearing. Prompt resolution of disputes is in the interest of the parents and the school districts and mediation can be an effective means of dispute resolution. The more disputes that are resolved by agreement through mediation, the sooner appropriate services are provided to students and lower the costs to the school district of location for due process hearings and subsequent appeals.

Finally, this bill would amend §3602-c(7) of the Education to permit the Commissioner to establish regional rate methodologies for computing regional rates for the following three categories: costs of services, evaluations and special education administration. The school district of location would have the option of using the regional rate methodology for one or more categories of costs or computing actual cost on an individual student basis, but would be required to do so consistently for all nonresident nonpublic school students served in any school year. Thus, the school district of location could opt to use the regional rate methodology only for evaluations and/or CSE administration and compute the actual costs of services on an individual child basis. By providing the option of regional rates, this bill would address concerns expressed by school officials about the burden and costliness of having to compute costs on an individual basis. Over time, the State Education Department would develop methodologies for computing regional rates for various services plus evaluations ad CSE administration, and once developed, they would be available to school districts of location as a ready means of determining actual costs. If because of local conditions, a school district of location were to decide that a regional rate would not accurately reflect actual costs for one or more categories of costs, it would be free to continue to compute actual costs using its own methodology. Thus, school districts of location would ,have the benefit of the availability of a regional rate methodology that would reduce their administrative costs, but would not be locked into a regional rate methodology if local conditions indicate that a regional

rate would not accurately reflect actual cost for one or more categories of costs.

In addition, Education Law § 3602-c(7) would be amended to add a one-year statute of limitations on submission of claims for reimbursement of the costs of services, evaluations and CSE administration to the school district of residence. Districts of location would have one year from the end of the school year in which costs are incurred to bill for the costs, or 60 days from the effective date of this act, whichever is later. By establishing a reasonable time within which claims must be presented, this bill would assure that claims are processed in a timely manner and that districts of residence are not confronted by claims for multiple years that are difficult to verify because of the passage of time.

The bill would also make a related amendment to Education Law § 4402(4)(d), which authorizes transportation from a nonpublic school student's school district of residence for up to 50 miles, where the student attends a nonpublic school for the purpose of receiving special education services comparable to those recommended in the student's IEP. First of all, this bill would clarify that the comparable special education services must be provided by the nonpublic school and not the school district of location pursuant to § 3602-c. Beyond that, this bill would provide that a student with a disability who receives such transportation is not entitled to receive special education services pursuant to § 3602-c and that as a condition of receipt of such transportation, the parent must consent to the provision of notice by the school district of residence to the CSE chairperson of the school district of location identifying such student, by name, address and school of attendance, as a student receiving transportation pursuant to Education Law § 4402(4)(d). The school district of residence would be required to provide such notice within 30 days after commencing such transportation. These changes are proposed in response to concerns raised by school officials that some parents of nonpublic school students may seek to use Education Law § 4402(4)(d) inappropriately to receive transportation for a longer distance than would otherwise be allowable under the transportation mileage limitations approved by the voters of the school district when in fact their child is receiving comparable special education services from another school district pursuant to § 3602-c. This bill would foreclose that possibility, which isn't what was intended when § 4402(4)(d) was enacted. Section 4402(4)(d) was intended to authorize transportation to a private special education school in which the parent placed their child up to 50 miles, provided it offers comparable services. In the situation contemplated by § 4402(4)(d), the school district would bear the cost of this additional transportation, but would not be paying for the special education services provided the student by the nonpublic school. By preventing the imposition of costs for transportation under § 4402(4)(d) in addition to the cost of services under § 3602-c that would be charged back to the school district of residence, this bill would reduce costs to school districts.

This bill also proposes additional changes in the law relating to special education intended to provide mandate relief and reduce costs to school districts.

This bill would eliminate the requirement of a Board of Cooperative Educational Services (BOCES) special education facilities plan, which currently must be prepared every five years. Such plan involves an exhaustive review of all school districts, approved private schools and BOCES facilities in a BOCES region, as well as an analysis of the future need for space to house special education programs. In lieu of the BOCES space plan, this bill would impose a general responsibility upon the BOCES district superintendent of schools to determine the adequacy and appropriateness of the space available to house special education programs within the supervisory district of the BOCES. This would allow the district superintendents of schools to monitor the availability of facilities to serve students with disabilities in the least restrictive environment within the BOCES region, while eliminating the cost and burden upon component school districts and BOCES of preparing and periodically updating a detailed BOCES space plan.

This bill would also amend § 4402(2)(a) of the Education Law to eliminate an unnecessary parental consent requirement under State law that applies to an initial recommendation for twelve month services. Under federal law, parental consent is required upon the initial provision of special education services to a student, and the federal IDEA regulations now provide for the revocation of such consent to services by the parent. Where July and August services are recommended in the student's initial IEP, parental consent to the initial provision of services would be required under federal and State law in any event. However, § 4402(2)(a) exceeds federal law by requiring parental consent specific to the initial provision of July and August services. Thus, if a school district CSE recommends twelve month services after a student has previously been identified and provided IEP services, §4402(2)(a) would require parental consent prior to the initial provision of twelve month services, when federal law would not. This additional consent is unnecessary and potentially burdensome and costly for school districts, which are required to make diligent efforts at obtaining consent, even where the parent may not be easily contacted. This is the only instance in which parental consent to a particular type of service is required-otherwise parents may pursue due process if they disagree with an IEP or may withdraw consent to the provision of special education altogether. Allowing a parent to block the provision of twelve month services to their child, when he or she has been determined to need twelve month services to prevent substantial regression is inappropriate. To protect the interests of students with disabilities who need twelve month services and to reduce the burden and costs to school districts, this unnecessary parental consent requirement should be eliminated.

The bill also would amend subdivision 1 of § 4404 of Education Law to establish a 180 day statute of limitations for due process complaints seeking tuition reimbursement for the unilateral parental placement of a student in a private school. Chapter 430 of the Laws of 2006 amended § 4404(1) to adopt a two-year statute of limitations for due process complaints generally. This bill would carve out an exception for due process complaints involving claims for tuition reimbursement for unilateral parental placements, which involve an intentional decision by a parent to enroll their child in a private special education school, rather than receive special education services from their school district of residence. In this situation, delay by the parent in bringing an impartial hearing can result in substantial costs to the school district, which could under current law be faced with defending against a claim involving two years of tuition costs before it has an opportunity to begin litigating over the merits of the parents' claim. When a claim encompasses multiple school years, the record in an impartial hearing can become voluminous and the cost of defending the complaint rises. To avoid these unnecessary costs on school districts, a 180 day statute of limitations should be imposed on tuition claims for a unilateral parental placement. Where the parent knows or should know that he or she will be seeking tuition reimbursement, it is not fair to the school district or its taxpayers to allow the parent to delay presenting their claim for almost two years.

This bill also would make amendments relating to the transition of toddlers with disabilities to preschool special education that are intended to aid our State in meeting the targets under our State Performance Plan for timely evaluation and placement of students at transition from the early intervention (EI) program. The bill proposes amendments to Education Law §4410(1) (f) and Public Health Law § 2541(8), to allow parents to opt to have their children who reach age three while being served in an early intervention program to remain in the EI program until the end of the school year in which the child turns three, as a number of other states currently do. Currently, Public Health Law §2541(8) requires that children whose 3rd birthday occurs on or before August 31st enter a 4410 program in September and children whose 3rd birthday occurs on or after September 1 enter a 4410 program on January first of the succeeding calendar year. From a pedagogical standpoint, moving a child to a new program on their 3rd birthday makes little sense when the child is born late in the school year. Giving the parent the option to have their child remain in the EI program through the end of the school year in which they turn three would benefit the child by allowing the child to transition when the program starts in September.

Finally, the bill would amend Education Law §2856 to codify the formula currently used to compute the State aid attributable to a student with a disability, which must be paid to a charter school that opts to serve such student with a disability. Until the Foundation aid formula is fully phased in and all school districts are receiving Foundation aid, it is not possible to compute the amount of aid that a student with a disability would generate using the Foundation aid formula without making unwarranted assumptions and causing serious anomalies. This bill would place the formula currently used, which is based upon the amount of Foundation aid that a school district must use for special education programs and services, in statute.

Budgetary implications of the bill

Failure to comply with IDEA could place New York's allocation of funds under Part B of IDEA (approximately $13 million in funds for state administration in 2007-08 and $699 million in toto) in jeopardy. This bill would not result in any increased costs to the State. The only provision of this bill that may result in additional costs to school districts is the provision authorizing the provision of July and August services to nonpublic students through the school district of location. It should not result in significant increases in costs, however, since the school district of residence is currently required to provide July and August services to pursuant to section 4408 to those nonpublic students with disabilities who re-enroll in the school district for the summer. On balance, however, this bill will result in cost savings to school districts. The provisions of this bill allowing parents to opt to have their children remain in an early intervention program until the end of the school year in which they turn age 3 could result in additional costs to counties depending upon the relative State reimbursement rates under the EI program and 4410 program. Counties would incur additional costs under EI that would at least be partially offset by reduced costs under section 4410. The amount of such additional costs to counties, if any, is not known.

Prior legislative history

This is a new bill.

Effective date

This act would take effect June 30, 2009 and in the event that it would become a law after this date, it would take effect immediately and would be deemed to have been in full force on and after June 30, 2009, provided that the amendments to paragraph a of subdivision 1 of section 3602-c of the Education Law, paragraph e of subdivision 2 of section 3602-c of the Education Law shall first apply to July and August programs for nonpublic students with disabilities in July 10

and August 2010; the amendments to subdivision seven of section 3602-c of the Education Law would first apply to charges for costs of services, evaluation and CSE administration that relate to the provision of special education programs and services to students attending nonpublic schools for the 2009-2010 school year; and the amendments to paragraph a of subdivision 1 of section 4404 of the Education Law would first apply to due process complaints for tuition reimbursement presented on or after September 1,2009. II