Relates to mandate relief for school districts and certain other educational entities; repealer

Summary of the provisions of the bill

Section 1 of the bill would amend subdivision 35 of § 1604 of the Education Law to provide that a common school district may adopt, in its discretion, a resolution establishing the office of deputy claims auditor to act as claims auditor in the absence of the claims auditor. Education Law § 1604(35), as amended, would provide that when the trustees of such school district delegate the claims audit function using an inter-municipal cooperative agreement, shared services, as authorized by §1950 of the Education Law, or an independent contractor, the trustees would be responsible for auditing all claims for services from the entity providing such delegated claims auditor, either directly or through a delegation to a different independent entity.

Section 2 of the bill would similarly amend subdivision 20-a of § 1709 of the Education Law to provide that a union free school district may adopt, in its discretion, a resolution establishing the office of deputy claims auditor to act as claims auditor in the absence of the claims auditor. Education Law § 1709, as amended, would provide that when the board delegates the claims audit function using an inter-municipal cooperative agreement, shared services, as authorized by § 1950 of the Education Law, or an independent contractor, the board would be responsible for auditing all claims for services from the entity providing such delegated claims auditor, either directly or through a delegation to a different independent entity.

Section 3 of the bill would amend paragraph e of subdivision 2 of 1711 of the Education Law to include deputy claims auditors in the

list of persons over which the superintendent of schools of a union free school district has supervision and direction.

Section 4 of the bill would amend subdivision 1 of § 1724 of the Education Law to permit union free school districts with a population over 10,000 students to use a risk-based sampling methodology to determine the number of claims to be audited rather than auditing all claims.

Section 5 of the bill would amend subdivision 4 of § 1950 of the Education Law by adding a new paragraph oo to clarify that BOCES may contract with one or more school districts for the purchase of equipment used for telecommunications, and may do so through an aidable shared service upon request of two or more component school districts.

Section 6 of the bill would amend paragraph q of subdivision 4 of 1950 of the Education Law to clarify that BOCES have the authority to coordinate nonpublic school transportation for school districts.

Section 7 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 8 of this legislation would amend subdivision 2 of section 2116-b of the Education Law to authorize school districts with actual general fund expenditures totaling less than eight million dollars in the previous school year, or school districts with actual enrollment of less than 500 students in the prior year to forego an internal audit function.

Section 9 would amend §2215 of the Education Law to replace the BOCES special education space plan requirement with a general provision placing responsibility with the District Superintendents of Schools 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 and ensuring the stability and continuity of program placements for students with disabilities, including procedures that ensure that special education programs and services located in appropriate facilities will not be relocated without adequate consideration of the needs of participating students with disabilities.

Section 10 of the bill would amend subdivision 5 of §2503 of the Education Law to include deputy claims auditors in the list of positions over which the board of education of a small city school district has authority to create, abolish, and to till by appointment.

Section 11 of the bill would amend subdivision 5 of section §2508 of the Education Law to include deputy claims auditors in the list of persons over which the superintendent of schools of a small city school district has supervision and direction.

Section 12 of the bill would amend subdivision 2 of §2523 of the Education Law to provide that if a small city school district has

established the office of deputy claims auditor, the deputy claims auditor may in the absence of the claims auditor approve the disbursement of money by the treasurer of such city school district. Section 2503(2), as amended, would provide that where such district has appointed a claims auditor and deputy claims auditor, no money would be paid out by the treasurer of such school district except upon the warrant of the claims auditor or deputy claims auditor.

Section 13 of the bill would amend subdivision 1 of §2524 of the Education Law to provide that a small city school district may present an itemized voucher for a claim to the deputy claims auditor, in addition to the claims auditor, for the deputy claims auditor's audit and allowance of such claim.

Section 14 of the bill would amend §2525 of the Education Law to provide that the deputy claims auditor, in the absence of the claims auditor, may consider a disputed claim, which may include taking testimony from the claimant relative to the justness and accuracy of such claim and taking evidence related to such claim, and may endorse such claim.

Section 15 would amend §2526 of the Education Law to provide that a small city school district may adopt, in its discretion, a resolution establishing the office of deputy claims auditor to act as claims auditor in the absence of the claims auditor. Education Law §2526, as amended, would provide that when the board of education of such school district delegates the claims audit function using an inter-municipal cooperative agreement, shared services, as authorized by § 1950 of the Education Law, or an independent contractor, the board of education would be responsible for auditing all claims for services from the entity providing such delegated claims auditor, either directly or through a delegation to a different independent entity.

Section 16 of the bill would amend §2527 of the Education Law to require a deputy claims auditor appointed to such position in a small city school district to execute an official undertaking prior to taking office, just as the claims auditor is currently required.

Section 17 of the bill would amend subdivision 2-a of §2554 of the Education Law to provide that a large city school district (a school district in a city with a population of 125,000 or more) may adopt, in its discretion, a resolution establishing one or more offices of deputy claims auditor to act as claims auditor in the absence of the claims auditor. Education Law §2554(2-a), as amended, would provide that when the board of education of such city school district delegates the claims audit function using an inter-municipal cooperative agreement, shared services, as authorized by § 1950 of the Education Law, or an independent contractor, the board of education would be responsible for auditing all claims for services from the entity providing such delegated claims auditor, either directly or through a delegation to a different independent entity.

Section 18 of the bill would amend subdivision 2 of §2562 of the Education Law to provide that a person may present a claim for settlement on an account or claim against the board of education of a large city school district to the deputy claims auditor in the

absence of the claims auditor. Accordingly, §2562(2), as amended, would authorize the deputy claims auditor, in the absence of the claims auditor, to take testimony and evidence in considering such a claim.

Section 19 of the bill would amend subdivision 6 of §2566 of the Education Law to include deputy claims auditors in the list of persons over which the superintendent of schools of a large city school district has supervision and direction.

Section 20 of the bill would amend paragraph a of subdivision 1 of §2576 of the Education Law, which relates to annual estimates in the Big Four large city school districts, to include deputy claims auditors' salaries in the salaries of school personnel included in such estimates.

Section 21 of the bill would amend subdivision 2 of §2580 of the Education Law to authorize the deputy claims auditor of a large city school district to sign an order authorizing the disbursement of money by the treasurer of such school district in the absence of the claims auditor.

Section 22 of the bill would amend §2580 of the Education Law by adding a new subdivision 3-b to authorize the Department of Motor Vehicles (DMV) to forward a copy of a prospective employee's criminal history record and fingerprints to the commissioner for purposes of conducting a criminal history record check where such prospective employee was previously fingerprinted and had a criminal history record check conducted by DMV as a school bus driver or school bud attendant. The bill would also to provide the Division of Criminal Justice Services with the authority to provide subsequent criminal history notification on such a prospective employee directly to the commissioner.

Sections 23 and 24 of the bill would amend §§3241 and 3242 of the Education Law to require that the annual census for pre-kindergarten children be prepared and filed biennially and clarifies that such census shall be prepared annually for children between age five and eighteen who are entitled to attend the public schools.

Section 25 of the bill would amend §3602 (6)(e)(3)(b) to provide that an assumed amortization for a project approved by the commissioner on or after July 1, 2011 would commence on the later of either: 18 months after approval by the Commissioner or upon receipt by the Commissioner of both the certificate of substantial completion and final cost report for such project or upon a finding by the Commissioner that the certificate of substantial completion of the project has been issued but the district is unable to complete the final cost report due to circumstances beyond the control of the district.

Section 26 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 non-public 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, other than an approved private residential or non-residential school for the education of students with a disability, 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 tile 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 tile 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 27 would amend §3602-c(7) of the Education Law relating to the chargeback 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 27 would make a technical correction to delete language inadvertently added to paragraph c of subdivision 7 of 3602-c that suggests that a chargeback 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 28 would amend §3635 of the Education Law to permit boards of education to provide student transportation based upon patterns of actual ridership and requires districts that have elected to provide student transportation in such a manner to place their plans on a district website on or before August fifteenth of the school year in which the transportation plan will be implemented.

Section 29 would repeal §3641 (4)(d) of the Education Law to eliminate state requirements for reporting beyond the federal requirements of the Asbestos Hazard Emergency Response Act.

Section 30 would amend § 4402(1)(b) (5) and (7) of the Education Law to provide at the first annual review of a student with a disability placed in a residential program, after the student has attained the age of 18, to develop adult service recommendations. Upon consent of the student's parents or the student themselves if over the age of 18, the committee on special education or the multidisciplinary team shall invite representatives from the Office of Mental Hygiene, Office of Mental Retardation and Developmental Disabilities, the State Office of Children and Family Services or the State Education Department to participate in such recommendations and upon consented release of the student's information, refer the student to the appropriate public agency for services.

Section 31 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 32 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 33 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 34 would amend § 305(14)(a) of the Education Law and section 37 would amend § 103(2) of the General Municipal Law to provide districts with the option of publishing procurement notices in the state's procurement opportunities newsletter (commonly known as the "contract reporter"), which would provide access to a greater audience leading to greater interest and ultimately better pricing for districts.

Additionally, sections 34 and 35, which would amend §§ 305(14(a) and (e) of the Education Law respectively and section 36 would amend §103 of the General Municipal Law allow for school district contracts to be awarded by "best value" which would permit districts to consider other factors in awarding contracts rather than the bid price alone.

Section 38 would amend §6-0107 of the Environmental Conservation Law to clarify that projects for the reconstruction, renovation, repair or improvement of existing public school facilities. or existing library facilities, and projects for the construction of new or expanded public schools or library facilities in large city school districts are not within the definition of a public infrastructure project.

Section 39 would amend §375(20)(1)(b), (c) and (d) of the Vehicle and Traffic Law to eliminate the requirement for a back-lit School Bus sign and replaces such with federally compliant reflective materials consistent with the provisions currently in place in 48 of the 50 states.

Section 40 would repeal §353(15) of the Executive Law to eliminate the reporting to the Division of Veterans Affairs of children of veterans of the armed forces who served in Vietnam during the Vietnam conflict who are students with disabilities.

Section 41 would require the Commissioner, in consultation with the Office of the State Comptroller to conduct a study of the feasibility and desirability of authorizing school districts and boards of cooperative educational services to enter national credit card contracts as a cost saving measure, with appropriate safeguards. This

section would require the commissioner to submit a report to the Board of Regents, the Governor and the Legislature with recommendations on whether and under what conditions such credit card contracts should be authorized.

Section 42 would repeal subdivisions 2 and 3 of §810 of the Education Law relating to required instruction on Conservation Day.

Section 43 is the effective date.

Statement in support of the bill

This bill would enact a series of measures to provide mandate relief and flexibility to school districts and other educational entities, including boards of cooperative educational services, libraries and charter schools, to help them contain costs. With both the State and school districts facing a worsening revenue picture and dealing with budget cuts, it is critically important that mandate relief be provided so that the limited resources available may be used more efficiently to carry out the critical functions of our schools-to provide high-quality instructional programs for the children of our State.

This bill would eliminate or reduce certain mandates and provide greater flexibility relating to curriculum, transportation, educational management services and special education.

The bill would eliminate the detailed curriculum requirements relating to Conservation Day. Instruction relating to environmental issues and Earth Day should be embedded in the existing curriculum and there is no need for the specific instructional requirements relating to Conservation Day.

With respect to transportation, the bill seeks to promote efficiency in school district transportation, by providing greater flexibility in how transportation services are provided. Specifically, many school districts believe that they are required to provide under existing law many more seats on bus transportation than are actually needed as evidenced by student ridership. This bill would explicitly authorize transportation based upon a district's actual ridership. In addition, this bill would clarify that BOCES are authorized to transport pupils to nonpublic schools, providing for cost effective practices and coordination of services by reducing employee and equipment costs. Additionally, the bill promotes efficiency in both information sharing and processing of fingerprinting for school bus drivers by authorizing the Department of Motor Vehicles to forward a prospective employee's criminal history record and fingerprints to the department for processing. Finally, the bill would eliminate the requirement for back-lit school bus signs, which are not required under Federal law and regulations, and would allow their replacement them with federally-compliant reflective materials.

The bill would also enact a series of mandate relief measures relating to educational management services and general school district operations. The bill would provide that the annual census for

pre-kindergarten children be prepared and tiled biennially rather than annually as this task is performed for the purpose of determining enrollment projections rather than determining actual enrollment and has no effect on the district's ultimate funding. Additionally, the bill would authorize union tree school districts with a population over 10,000 students to use a risk-based sampling methodology to determine the number of claims to be audited, which would provide for a fiscally sound auditing process while eliminating the unnecessary burden to audit all claims regardless of the size of the district. Additionally, school districts with actual general fund expenditures totaling less than eight million dollars in the previous school year, or school districts with actual enrollment of less than five hundred students in the previous school year would be excused from internal audit functions. The bill would also clarity that BOCES are authorized to contract for the purchase of telecommunications equipment on behalf of one or more districts, and that such cooperative purchasing is an aidable shared service if two or more component districts request it. Unnecessary reporting would be eliminated by this bill including reports in excess of the federal Asbestos Hazard Emergency Response Act (AHERA) and the voluntary reporting of children of Vietnam Veterans. Specifically, AHERA is enforced and monitored by the EPA and requires all public and non-public elementary schools to develop and implement measures to determine if asbestos identified as a hazardous material is present and to manage and monitor it safely over time. The state capital planning process currently in effect provides safeguards for testing for asbestos and other hazardous materials, requires that districts hire professional consultants to conduct the process and that all work be carried out in accordance with all applicable laws.

In addition, the State Smart Growth Public Infrastructure Policy Act, would be amended to reduce unnecessary work for the Department, school districts, libraries and charter schools, while complying with the spirit of the legislative intent. SED provides funding, directly or indirectly, for capital construction projects for school districts, BOCES, public libraries and charter schools across the State and approves the plans and specifications for school district and charter school projects outside of New York City, for BOCES projects and for school district public library projects. Over 95 percent of school building projects approved by SED involve reconstruction, rehabilitation or improvement of existing facilities, and the percentage of public libraries receiving library facilities aid for reconstruction or renovation of an existing library is similarly high. The primary purpose of the smart growth legislation is to deal with the problem of suburban sprawl-concerns about siting facilities outside of a municipal center without considering the viability of sites within the municipal center, where the environmental and energy impact may be diminished. Requiring the preparation of a written small growth impact statement for a project involving, for example, roof repair to an existing school building or public library, serves no useful purpose and would generate unnecessary paperwork and costs. A reconstruction project, by its nature, meets the first of the listed smart growth criteria, since it involves improvement of an existing building. New library construction projects for public libraries other than school district public libraries, which are subject to local zoning and land use requirements in receive the bulk of their

funding from municipalities, so there is a risk of unnecessarily requiring duplicative statements and of a conflict between the judgment of local code enforcement officials as to the application of smart growth principles. In addition, as written, the law does not provide an exemption for building projects in New York City that are funded by SED, or for that matter for projects in the other Big 5 large city school districts. This creates an unnecessary burden, as all such projects would be located in a municipal center, as defined by this bill, and the siting of a school building in a large city shouldn't implicate the issues of suburban sprawl and development that smart growth principles are intended to address.

The bill also seeks to promote costs savings through the contracting and procurement process. Cost savings would be actualized by expanding the publishing of procurement notices to include the state's Procurement Opportunities Newsletter (often referred to as the "contract reporter"). This would ensure greater access to procurement opportunities leading to the potential for more competitive pricing for districts. The bill would also allow for school district contracts for the purchase of services to be awarded by "best value" ,under the guidelines and restrictions applicable to State contracts under the State Finance Law. Current law requires the awarding of school district contracts to the lowest, responsible bidders. This amendment would provide for complex technical and service contracts, the opportunity for districts to consider other factors in awarding contracts rather than making determinations based solely upon cost. The bill would clarify that awards under the existing RFP process for transportation contracts and contracts for mobile instructional units would be awarded based on best value, and that an RFP process using best value would be authorized for contracts for restaurant and cafeteria services. Finally, the bill authorizes the Commissioner to conduct a study of the feasibility and desirability of authorizing school districts and BOCES to enter into national credit card contracts. Current law restricts school districts from utilizing certain contracts including national contracts. It is anticipated that such contract may provide cost savings or revenues for districts particularly where rebates are offered based upon volume of purchases, but appropriate sate guards would need to be developed to prevent misuse of such authority.

The bill also provides school districts with relief from the impact of late filing of final cost reports, which under current law results in a loss of state building aid for the school building project involved because of the statute of limitations on the payment of aid. Under Education Law §3604(5)(a), the Commissioner is prohibited from certifying a payment of State aid on a claim submitted more than one year after the school year in which the payment was first to be made. As applied to building aid, which may involve large construction projects with millions of dollars in expense paid out pursuant to an assumed amortization over a 30 year period, the result of a late tiling of a claim (which under the Commissioner's regulations is complete upon tiling of a final cost report containing the actual expenditures made by the district), can be draconian, with a district losing the benefit of millions of dollars of aid. To avoid such a result and its negative impact on school district taxpayers, this bill would provide that payment of building aid

commence upon the later of: (1) 18 months after approval of the project by the Commissioner, or 2 the filing of both a certificate of substantial completion of the project by the architect or engineer and a final cost report. Where the district is unable to submit a timely final cost report due to circumstances beyond its control the Commissioner would be authorized to grant a waiver and allow aid to flow, provided that 18 months has passed since the Commissioner's approval. For some projects, this approach could result in a delay in the initial payment of aid in circumstances in which construction is not substantially completed within 18 months of the Commissioner's approval, but it would protect school districts from loss of building aid resulting from late filing of a final cost report and would allow the Commissioner to commence payment of building aid through a waiver in circumstances in which a district is unable to file a final cost report because of circumstances beyond its control.

The bill also enacts provisions of law to give districts greater flexibility in carrying out their claims auditing function. In 2005, Chapter 263 of the Laws of 2005 amended the Education Law to provide that each school district could, in its own discretion, adopt a resolution creating the office of claims auditor and appoint a claims auditor to hold his or her position subject to the pleasure of the board of education or the trustees of such district. Such claims auditor would be required to report directly to the board of education or the trustees of such school district. Such position would be classified in the exempt class of the civil service.

Chapter 263 further provided that a school district could delegate the claims audit function by using an inter-municipal cooperative agreement, shared services to the extent authorized by § 1950 of the Education Law, or independent contractors, to fulfill such function. Chapter 263 also amended other provisions of the Education law to strengthen and enhance the claims audit function within each school district and accordingly increase financial accountability in each district.

This bill would afford school districts with greater flexibility in carrying out their claims audit function by authorizing each district to establish, by resolution, an office of deputy claims auditor to act as the claims auditor in the absence of the claims auditor.

The bill would also address a conflict of interest problem that has arisen for school districts that elect to have boards of cooperative educational services (BOCES) or other independent entities serve as their claims auditor. A claims auditor must conduct an independent review of the claims submitted to the school district and needs to avoid situations that may involve a conflict of interest. Accordingly, where a BOCES or other independent entity is delegated authority to carry out the claims audit function, the employees of that BOCES or other independent entity should not be auditing claims under contracts between the school district and that BOCES or other independent entity. For school districts that wish to make use of BOCES to carry out their claims auditing function, as Chapter 253 of the Laws of 2005 permits, particularly districts in rural areas where there are few options for carrying out the claims auditor function through private firms, the need to avoid such a conflict of interest has created some difficult challenges.

This bill would clarify that where a board of education delegates the claims auditing function to a BOCES or another independent entity, the board of education is responsible for auditing any claims for services from that BOCES or other entity, either directly or by delegating to a different independent entity. This affords school districts with flexibility in how to address the conflict of interest problem, while preserving the core principle of Chapter 253 of the 2005 that the independence of the claims auditor must be maintained so that school district tax dollars are effectively protected.

The bill would also enact provisions relating to cost containment and mandate relief in special education.

The first set of amendments relate to the provision of special education services to nonpublic students and home-schooled students pursuant to Education Law §3602-c. The complexities caused by shifting fiscal and programmatic responsibility for providing special education services to students parentally placed in nonpublic schools, when §3602-c was amended by Chapter 378 of the Laws of 2007, 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 coteaching 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 amends § 4402(1)(b) (5) and (7) to utilize appropriate language, consistent throughout education law, and to provide for transitional programs for students with a disability placed in a residential program by their committee on special education or multidisciplinary team who have reached the age of 18. Specifically, this amendment would permit, upon the consent of the student or parents, the inclusion of a representative from the Office of Mental Hygiene, Office of Mental Retardation and Developmental Disabilities, the State Office of Children and Family Services or the State Education Department to participate in the development of adult service recommendations. This provision would provide greater information sharing among the agencies and aid in determining which agency would provide the most appropriate service for the student.

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 heating 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.

Budgetary implications of the bill

The bill would result in cost savings to school districts and other educational entities from elimination of various unnecessary mandates. The amount of such savings is not known, though it is expected to be substantial if this bill is enacted in its entirety.

One 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. Any such cost should be offset by savings from other provisions of the bill. In addition, the amendments to Education Law §3602(6) (e) (3) (b) relating to final cost rep0l1s would result in a delay in receipt of State building aid for school districts that do not substantially complete their projects within 18 months of Commissioner's approval, but it would protect those districts from a loss of aid that might otherwise result from late tiling of a final cost report.

Prior legislative history

None.

Effective date

This act would take effect July 1, 2011, provided that in the event this act becomes a law after such date, it would take effect immediately and would be deemed to have been in full force and effect on and after July 1, 2011.