§ 4410 — Special education services and programs for preschool children with disabilities

New York § 4410

• Jurisdiction: New York
• Law EDN: Education
• Title 6: Special Schools and Instruction
• Art. 89: Children With Disabilities

Text

§ 4410. Special education services and programs for preschool children\nwith disabilities. 1. Definitions. As used in this section:\n a. "Approved evaluator" means either:\n (1) a program approved by the commissioner pursuant to paragraph b of\nsubdivision nine of this section; or\n (2) a school district or group of appropriately licensed and/or\ncertified professionals associated with a public or private agency\napproved by the commissioner pursuant to subdivision nine-a of this\nsection.\n b. "Approved program" means a program approved by the commissioner\npursuant to paragraph a of subdivision nine of this section.\n c. "Board" means:\n (i) a board of education as defined in section two of this chapter; or\n (ii) trustees of a common school district as defined in section\nsixteen hundred one of this chapter.\n d. "City or county official" means the chief executive officer, or, in\nany county which does not have a chief executive officer, the county\ngoverning body, or the mayor of the city of New York.\n e. "Committee" means committee on preschool special education.\n f. "First eligible for services" means the earliest date on which a\nchild becomes age-eligible for services pursuant to this section, and as\ndefined in regulations of the commissioner in accordance with applicable\nfederal law and regulations, except that a child who is already\nreceiving services under section two hundred thirty-six of the family\ncourt act or its successor may, if the parent so chooses, continue to be\neligible to receive such services through August thirty-first of the\ncalendar year in which the child first becomes age-eligible to receive\nservices pursuant to this section.\n g. "Municipality" means a county outside the city of New York or the\ncity of New York in the case of a county contained within the city of\nNew York.\n h. "Parent" means parent or person in parental relation.\n i. "Preschool child" means a child with a disability as defined in\nsection forty-four hundred one of this article who is first eligible for\nservices as defined in paragraph f of this subdivision but who will not\nhave become five years of age on or before December first of the school\nyear, or a later date if a board establishes such later date for\neligibility to attend school. A child shall be deemed a preschool child\nthrough the month of August of the school year in which the child first\nbecomes eligible to attend school pursuant to section thirty-two hundred\ntwo of this chapter.\n j. "Related services" means those services as defined in paragraph k\nof subdivision two of section forty-four hundred one of this article\nprovided to a preschool child at a site determined by the board,\nincluding but not limited to an approved or licensed prekindergarten or\nhead start program; the work site of the provider; the child's home; a\nhospital; a state facility; or a child care location as defined in\nparagraph a of subdivision eight of this section. If the board\ndetermines that documented medical or special needs of the preschool\nchild indicate that the child should not be transported to another site,\nthe child shall be entitled to receive related services in the preschool\nchild's home.\n k. "Special education itinerant services" means an approved program\nprovided by a certified special education teacher on an itinerant basis\nin accordance with the regulations of the commissioner, at a site\ndetermined by the board, including but not limited to an approved or\nlicensed prekindergarten or head start program; the child's home; a\nhospital; a state facility; or a child care location as defined in\nparagraph a of subdivision eight of this section. If the board\ndetermines that documented medical or special needs of the preschool\nchild indicate that the child should not be transported to another site,\nthe child shall be entitled to receive special education itinerant\nservices in the preschool child's home.\n 2. Provision of services. The board of each school district shall be\nresponsible for the provision of special education services and programs\nto preschool children in accordance with the provisions of subdivision\ntwo of section four thousand four hundred one of this article, except as\notherwise limited by regulations of the commissioner; provided, however,\nthat prior to July first, nineteen hundred ninety-one, a board shall be\nresponsible for the provision of special education services and programs\nto a preschool child only to the extent that there is an approved\nprogram available for such preschool children.\n 3. Committee on preschool special education. a. Each such board shall\nestablish one or more committees to conduct meetings to develop, review\nand revise the individualized education program of a preschool child\nwith a disability.\n * (1) Such board shall ensure that such committee is composed of at\nleast the following members: (i) the parents of the preschool child;\n(ii) a regular education teacher of such child, whenever the child is or\nmay be participating in a regular education environment; (iii) a special\neducation teacher of the child or, if appropriate, a special education\nprovider of the child; (iv) an appropriate professional employed by the\nschool district who is qualified to provide, or supervise the provision\nof, special education, who is knowledgeable about the general curriculum\nof the school district and the availability of preschool special\neducation programs and services and other resources in the school\ndistrict and the municipality, and who shall serve as chairperson of the\ncommittee; (v) an additional parent of a child with a disability who\nresides in the school district or a neighboring school district and\nwhose child is enrolled in a preschool or elementary level education\nprogram, provided that such parent shall not be employed by or under\ncontract with the school district or municipality, and provided further\nthat such additional parent shall not be a required member unless the\nparents, or a member of the committee on preschool special education,\nrequest that such additional parent member participate in accordance\nwith this subparagraph; (vi) an individual who can interpret the\ninstructional implications of evaluation results, provided that such\nindividual may be the member appointed pursuant to clause (ii), (iii),\n(iv) or (vii) of this subparagraph where such individuals are determined\nby the school district to have the knowledge and expertise to do so;\n(vii) such other persons having knowledge or expertise regarding the\nchild as the board or the parents shall designate, to the extent\nrequired under federal law; and for a child in transition from programs\nand services provided pursuant to applicable federal laws relating to\nearly intervention services, at the request of the parent or person in\nparental relation to the child, the appropriate professional designated\nby the agency that has been charged with the responsibility for the\npreschool child pursuant to said applicable federal laws. In addition,\nthe chief executive officer of the municipality of the preschool child's\nresidence shall appoint an appropriately certified or licensed\nprofessional to the committee. Attendance of the appointee of the\nmunicipality shall not be required for a quorum. The additional parent\nneed not be in attendance at any meeting of the committee on preschool\nspecial education unless specifically requested in writing, at least\nseventy-two hours prior to such meeting, by the parents or other person\nin parental relation to the student in question or a member of the\ncommittee on preschool special education. The parents or persons in\nparental relation of the student in question shall receive proper\nwritten notice of their right to have an additional parent attend any\nmeeting of the committee regarding the student along with a statement,\nprepared by the department, explaining the role of having the additional\nparent attend the meeting.\n * NB Effective until June 30, 2027\n * (1) Such board shall ensure that such committee is composed of at\nleast the following members: (i) the parents of the preschool child;\n(ii) a regular education teacher of such child, whenever the child is or\nmay be participating in a regular education environment; (iii) a special\neducation teacher of the child or, if appropriate, a special education\nprovider of the child; (iv) an appropriate professional employed by the\nschool district who is qualified to provide, or supervise the provision\nof, special education, who is knowledgeable about the general curriculum\nof the school district and the availability of preschool special\neducation programs and services and other resources in the school\ndistrict and the municipality, and who shall serve as chairperson of the\ncommittee; (v) an additional parent of a child with a disability who\nresides in the school district or a neighboring school district and\nwhose child is enrolled in a preschool or elementary level education\nprogram, provided that such parent shall not be employed by or under\ncontract with the school district or municipality, and provided further\nthat such additional parent shall not be a required member if the\nparents request that such additional parent member not participate; (vi)\nan individual who can interpret the instructional implications of\nevaluation results, provided that such individual may be the member\nappointed pursuant to clause (ii), (iii), (iv) or (vii) of this\nsubparagraph where such individuals are determined by the school\ndistrict to have the knowledge and expertise to do so; (vii) such other\npersons having knowledge or expertise regarding the child as the board\nor the parents shall designate, to the extent required under federal\nlaw; and for a child in transition from programs and services provided\npursuant to applicable federal laws relating to early intervention\nservices, the appropriate professional designated by the agency that has\nbeen charged with the responsibility for the preschool child pursuant to\nsaid applicable federal laws. In addition, the chief executive officer\nof the municipality of the preschool child's residence shall appoint an\nappropriately certified or licensed professional to the committee.\nAttendance of the appointee of the municipality shall not be required\nfor a quorum.\n * NB Effective June 30, 2027\n (2) At least five business days prior to a meeting of the committee on\npreschool special education notice of such meeting shall be given to\neach committee member, including the appointee of the municipality, and\nthe parent of the preschool child, in writing by first class mail,\npostage prepaid, telefacsimile, or by personal service. The\nappropriately licensed or certified professional designated by the\nagency that has been charged with the responsibility for the preschool\nchild pursuant to applicable federal laws relating to early intervention\nservices shall attend all meetings of the committee conducted prior to\nthe child's initial receipt of services pursuant to this section. The\nregular education teacher of the child shall participate in the\ndevelopment, review and revision of an individualized education program\nfor the child to the extent required under federal law. A member of such\ncommittee shall be considered as a member of a committee on special\neducation for the purposes of section thirty-eight hundred eleven of\nthis chapter.\n * (3) Notwithstanding any provision of law, rule or regulation to the\ncontrary, a member of the committee on preschool special education,\nother than the parents or persons in parental relation to the student or\nthe appointee of the municipality, is not required to attend a meeting\nof the team, in whole or in part, if the parent or person in parental\nrelation to the student and the school district agree, in writing, that\nthe attendance of the member is not necessary because the member's area\nof the curriculum or related services is not being modified or discussed\nat the meeting.\n * NB Repealed June 30, 2027\n * (4) Notwithstanding any provision of law, rule or regulation to the\ncontrary, a member of the committee on preschool special education,\nother than the parents or persons in parental relation to the student or\nthe appointee of the municipality, may be excused from attending a\nmeeting of the committee, in whole or in part, when the meeting involves\na modification to or discussion of the member's area of the curriculum\nor related services if the parent or person in parental relation to the\nstudent and the school district consent, in writing, to the excusal and\nthe excused member submits to the parent or person in parental relation\nto the student and such committee, written input into the development of\nthe individualized education program, and in particular written input\nwith respect to their area of curriculum or related services prior to\nthe meeting.\n * NB Repealed June 30, 2027\n * (5) Requests for excusal of a member of the committee on preschool\nspecial education as provided for in subparagraphs three and four of\nthis paragraph, and the written input as provided for in subparagraph\nfour of this paragraph, shall be provided not less than five calendar\ndays prior to the meeting date, in order to afford the parent or person\nin parental relation a reasonable time to review and consider the\nrequest. Provided however, that a parent or person in parental relation\nshall retain the right to request and/or agree with the school district\nto excuse a member of the committee on preschool education at any time\nincluding where the member is unable to attend the meeting because of an\nemergency or unavoidable scheduling conflict and the school district\nsubmits the written input for review and consideration by the parent or\nperson in parental relation within a reasonable time prior to the\nmeeting and prior to obtaining written consent of the parent or person\nin parental relation to such excusal.\n * NB Repealed June 30, 2027\n * (6) Notwithstanding any other provision of law, rule or regulation\nto the contrary, in making changes to a student's individualized\neducation program after the annual review has been conducted, the parent\nor person in parental relation to the student and the school district\nmay agree not to convene a meeting of the committee on preschool special\neducation for the purpose of making those changes, and instead may\ndevelop a written document to amend or modify the student's current\nindividualized education program under the following circumstances:\n (i) The parent or person in parental relation makes a request to the\nschool district for an amendment to the individualized education program\nand the school district and such parent or person in parental relation\nagree in writing; or\n (ii) The school district provides the parent or person in parental\nrelation with a written proposal to amend a provision or provisions of\nthe individualized education program that is conveyed in language\nunderstandable to the parent or person in parental relation in such\nparent's or such person's native language or other dominant mode of\ncommunication, informs and allows the parent or person in parental\nrelation the opportunity to consult with the appropriate personnel or\nrelated service providers concerning the proposed changes and the parent\nor person in parental relation agrees in writing to such amendments.\n (iii) If the parent or person in parental relation agrees to amend the\nindividualized education program without a meeting, the parent or person\nin parental relation shall be provided prior written notice of the\nchanges to the individualized education program resulting from such\nwritten document and the committee on preschool special education shall\nbe notified of such changes. If the school district makes such changes\nby rewriting the entire individualized education program, it shall\nprovide the parent or person in parental relation with a copy of the\nrewritten individualized education program. If the school district\namends the individualized education program without rewriting the entire\ndocument, the school district shall provide the parent or person in\nparental relation with a copy of the document that amends or modifies\nthe individualized education program or, upon request of the parent or\nperson in parental relation, a revised copy of the individualized\neducation program with the amendments incorporated.\n Amendments to an individualized education program pursuant to this\nclause shall not affect the requirement that the committee on preschool\nspecial education review the individualized education program at the\nannual meeting, or more often if necessary.\n * NB Repealed June 30, 2027\n b. Two or more boards may, subject to the approval of the\ncommissioner, establish a joint committee. Boards seeking to establish\nsuch a joint committee shall apply to the commissioner for approval on a\nform prescribed by the commissioner. Such application shall include, but\nnot be limited to, a plan for holding meetings in a manner and at a\nlocation convenient for parents.\n c. A municipality with one or more boards located within the\nmunicipality may coordinate the scheduling and location of meetings with\nthe prior consent of such board or boards and the approval of the\ncommissioner.\n d. The committee shall review, at least annually, the status of each\npreschool child.\n e. In any meeting held to review or evaluate a preschool child, the\npreschool child's parent shall be given the opportunity to attend and\nparticipate in the meeting. The committee shall permit individuals\ninvited by the parent to be present. To the extent possible, any meeting\nof the committee shall be held at a site mutually convenient to the\nmembers of the committee and the parent of the preschool child,\nincluding but not limited to the work site of the evaluator, the\nmunicipal representative on the committee, or the chairperson of the\ncommittee. In a city having a population of less than two hundred fifty\nthousand but more than two hundred thousand and in a city having a\npopulation of less than one hundred seventy-five thousand but more than\none hundred fifty thousand, the chairperson of the committee shall\ndetermine the location of the meeting.\n f. After notification by a service coordinator, as defined in section\ntwenty-five hundred forty-one of the public health law, that a child\nreceiving services pursuant to title II-A of article twenty-five of the\npublic health law potentially will transition to receiving services\nunder this section and that a conference is to be convened to review the\nchild's program options and establish a transition plan, which\nconference must occur at least ninety days before such child would be\neligible for services under this section, the chairperson of the\ncommittee on preschool special education of the local school district or\nhis or her designee in which such child resides shall participate in the\nconference.\n g. In any meeting of the committee held to review or reevaluate the\nstatus of a preschool child, the professional who participated in the\nevaluation shall, upon the request of the parent or committee, attend\nand participate at such meeting.\n 4. Evaluations. a. The board shall identify each preschool child\nsuspected of having a disability who resides within the district and,\nupon referral to the committee shall, with the consent of the parent,\nprovide for an evaluation related to the suspected disability of the\nchild. The board shall make such identification in accordance with\nregulations of the commissioner.\n b. Each board shall, within time limits established by the\ncommissioner, be responsible for providing the parent of a preschool\nchild suspected of having a disability with a list of approved\nevaluators in the geographic area. The parent may select the evaluator\nfrom such list. Each board shall provide for dissemination of the list\nand other information to parents at appropriate sites including but not\nlimited to pre-kindergarten, day care, head start programs and early\nchildhood direction centers, pursuant to regulations of the\ncommissioner.\n c. The documentation of the evaluation shall include all assessment\nreports and a summary report of the findings of the evaluation on a form\nprescribed by the commissioner including a detailed statement of the\npreschool child's individual needs. The summary report shall not make\nreference to any specific provider of special services or programs. In\naddition, with the consent of the parents, approved evaluators and\ncommittees shall be provided with the most recent evaluation report for\na child in transition from programs and services provided pursuant to\ntitle two-a of article twenty-five of the public health law. Nothing\nshall prohibit an approved evaluator or the committee from reviewing\nother assessments or evaluations to determine if such assessments or\nevaluations fulfill the requirements of the regulations of the\ncommissioner. Notwithstanding any inconsistent provisions of this\nsection, the committee, in its discretion, may obtain an evaluation of\nthe child from another approved evaluator prior to making any\nrecommendation that would place a child in the approved program that\nconducted the evaluation of the child. If the committee recommends\nplacing a child in an approved program that also conducted an evaluation\nof such child it shall indicate in writing that such placement is an\nappropriate one for the child. In addition, the committee shall provide\nnotice to the commissioner of such recommendation.\n d. The approved evaluator shall, following completion of the\nevaluation, transmit the documentation of the evaluation to all members\nof the committee and to a person designated by the municipality in which\nthe preschool child resides. Each municipality shall notify the approved\nevaluators in the geographic area of the person so designated. The\nsummary report of the evaluation shall be transmitted in English and\nwhen necessary, also in the dominant language or other mode of\ncommunication of the parent; the documentation of the evaluation shall\nbe transmitted in English and, upon the request of the parent, also in\nthe dominant language or other mode of communication of the parent,\nunless not clearly feasible to do so pursuant to regulations promulgated\nby the commissioner. Costs of translating the summary report and\ndocumentation of the evaluation shall be separately reimbursed. If,\nbased on the evaluation, the committee finds that a child has a\ndisability, the committee shall use the documentation of the evaluation\nto develop an individualized education program for the preschool child.\nNothing herein shall prohibit an approved evaluator from at any time\nproviding the parent with a copy of the documentation of the evaluation\nprovided to the committee.\n e. Prior to the committee meeting at which eligibility will be\ndetermined, the committee shall provide the parent with a copy of the\nsummary report of the findings of the evaluation, and shall provide the\nparent with written notice of the opportunity to address the committee\nin person or in writing. Upon timely request of the parent, the\ncommittee shall, prior to meeting, provide a copy of all written\ndocumentation to be considered by the committee; provided, however, that\nsuch material shall be provided to the parent at any time upon request.\n f. If the parent disagrees with the evaluation, the parent may obtain\nan additional evaluation at public expense to the extent authorized by\nfederal law or regulation.\n 5. Determination of services. a. The committee shall review all\nrelevant information, including but not limited to:\n (i) information presented by the parent and the child's teacher or\nteachers pertinent to each child suspected of having a disability;\n (ii) the results of all evaluations; and\n (iii) information provided by the appropriate licensed or certified\nprofessional designated by the agency that is charged with the\nresponsibility for the child pursuant to applicable federal laws, if\nany.\n b. (i) If the committee determines that the child has a disability,\nthe committee shall recommend approved appropriate services or special\nprograms and the frequency, duration and intensity of such services,\nincluding but not limited to the appropriateness of single services or\nhalf-day programs based on the individual needs of the preschool child.\nThe committee shall first consider the appropriateness of providing: (i)\nrelated services only; (ii) special education itinerant services only;\n(iii) related services in combination with special education itinerant\nservices; (iv) a half-day program, as defined in the regulations of the\ncommissioner; (v) a full day program; in meeting the child's needs. If\nthe committee determines that the child demonstrates the need for a\nsingle related service, such service shall be provided as a related\nservice only or, where appropriate, as a special education itinerant\nservice. Prior to recommending the provision of special education\nservices in a setting which includes only preschool children with\ndisabilities, the committee shall first consider providing special\neducation services in a setting which includes age-appropriate peers\nwithout disabilities. Provision of special education services in a\nsetting with no regular contact with such age-appropriate peers shall be\nconsidered only when the nature or severity of the child's disability is\nsuch that education in a less restrictive environment with the use of\nsupplementary aids and services cannot be achieved satisfactorily. The\ncommittee's recommendation shall include a statement of the reasons why\nless restrictive placements were not recommended. The committee may\nrecommend placement in a program that uses psychotropic drugs only if\nthe program has a written policy pertaining to such use and the parent\nis given a copy of such written policy at the time such recommendation\nis made.\n (ii) The committee shall recommend approved appropriate services or\nspecial programs. The recommendation shall be based on the individual\nneeds of the preschool child. Appropriate services may include one or\nmore related services selected from a list maintained by a municipality\npursuant to paragraph c of subdivision nine of this section; provided,\nhowever, that if the committee recommends one or more related services\nfrom such list, or itinerant services, the committee shall request that\nthe parent identify the initial child care location arranged by the\nparent, or other site, at which each such service will be provided.\n (iii) The reasons for such recommendation shall be in writing and\nshall be furnished to the preschool child's parent, the municipality in\nwhich the preschool child resides and the board. If the committee's\nrecommendation differs from an expressed preference of a parent with\nrespect to the frequency, duration or intensity of services, or with\nrespect to more or less restrictive settings, the committee shall\ninclude in its statement the reasons why the committee recommended a\nprogram or service other than that preferred by the parent. The\ncommittee shall include in its recommendation any statement or\nstatements provided by the parent, which the board shall consider.\n (iv) The members of the committee or subcommittee may compile a list\nof appropriate and/or helpful services that may be available outside of\nthe school setting to provide the parents or person in parental relation\nof a child with a disability with such information. Such list shall\nclearly state that these services are in addition to services supplied\nby the school district and will not be paid for by the school district.\nAny member of a committee or his or her respective school district who,\nacting reasonably and in good faith, provides such information shall not\nbe liable for such action.\n c. After consideration of the recommendation of the committee and its\nstatement of reasons, including any statement or statements of a parent\nsetting forth an expressed preference, the board shall arrange for the\nprovision of the recommended special services or programs from among the\nspecial services and programs approved for such purpose by the\ncommissioner. In the event the special service or program will be\nprovided in the child's home or another care setting for which the\nparent has made or subsequently makes arrangements, no transportation\nshall be indicated.\n d. If the board disagrees with the recommendation of the committee, it\nshall set forth in writing a statement of its reasons and send the\nrecommendation back to the committee, a notice of which shall be\nfurnished to the preschool child's parent and the municipality in which\nthe preschool child resides. In the event a board refers the\nrecommendation back to the committee for reconsideration, the board\nshall also notify the parent and the committee in writing of the need to\nschedule a meeting to ensure timely placement. If the determination is\nfor two or more related services, where possible, the board shall select\nfrom the list maintained by the municipality pursuant to paragraph c of\nsubdivision nine of this section such related service providers that are\nemployed by a single agency for the provision of such services. The\nboard shall provide each related service provider with a copy of the\nindividualized education program and the name and location of each\nrelated service provider. The board shall designate one of the service\nproviders to coordinate the provision of the related services. If the\ndetermination is for special education itinerant services and one or\nmore related services, the special education itinerant service provider\nshall be responsible for the coordination of such services pursuant to\nregulations of the commissioner.\n * e. A preschool child shall receive the services of a program\narranged for by the board commencing with the starting date for such\nprogram, unless such services are recommended by the committee less than\nthirty days prior to, or after, the starting date for such program, in\nwhich case, such services shall be provided as soon as possible\nfollowing development of the individualized education program, but no\nlater than thirty days from the recommendation of the committee;\nprovided, however, that in no case shall a child receive services prior\nto the date that such child is first eligible for services pursuant to\nparagraph f of subdivision one of this section.\n * NB Effective until June 30, 2027\n * e. A preschool child shall receive the services of a program\narranged for by the board commencing with the starting date for such\nprogram, unless such services are recommended by the committee less than\nthirty days prior to, or after, the starting date for such program, in\nwhich case, such services shall be provided no later than thirty days\nfrom the recommendation of the committee; provided, however, that in no\ncase shall a child receive services prior to the date that such child is\nfirst eligible for services pursuant to paragraph f of subdivision one\nof this section.\n * NB Effective June 30, 2027\n f. The board shall give written notice of the special services or\nprograms arranged for to the appropriate municipality, and to the\nrelated service provider or the approved program selected to provide the\nservices. The municipality shall contract with the approved program in a\ntimely manner but in no event later than forty days from the receipt of\nwritten notice of the determination of the board. If the municipality is\na city of one million or more persons, the municipality may delegate\ncontracting authority to the board. The contract shall include but not\nbe limited to any provisions required by the commissioner, shall adhere\nto the rates established pursuant to subdivision ten of this section as\napplicable and shall be in a form approved by the commissioner. After\nreceipt of notification from a municipality of actions taken pursuant to\nthis paragraph and subdivision eight of this section, the commissioner\nshall issue a notice of authorization for reimbursement to the\nmunicipality pursuant to the provisions of subdivisions ten and eleven\nof this section. Provided further, any agreement for transportation\nservices pursuant to subdivision eight of this section shall be a\ncontract, separate and distinct from the contract for special services\nor programs pursuant to this section, between the municipality and the\napproved program which shall include but not be limited to any\nprovisions required by the commissioner on a form prescribed by the\ncommissioner.\n g. The board shall determine the appropriate municipality based on the\nmunicipality within the school district in which the preschool child\nresides at the time such board issues its written notice of\ndetermination. The board shall terminate such determination if the board\narranges for the provision of a new service or program for such child or\nif the preschool child moves out of the school district or moves to a\ndifferent municipality within the school district. If the board\nterminates such determination for a preschool child because such child\nmoves to a different municipality within the school district, such board\nshall issue a new written notice of determination for the same special\neducation service or program effective the next school day which shall\nbecome the responsibility of the new municipality in which such child\nresides. Pursuant to regulations promulgated by the commissioner, if the\npreschool child moves to a school district that is within a reasonable\ndistance of the child's current approved placement such child may\ncontinue in such placement if it is consistent with the individualized\nneeds of the child and the board of the new school district shall issue\na notice of determination to continue such placement, provided that\nnothing shall preclude a parent from requesting and receiving from the\ncommittee of the new school district a reevaluation of the continued\nplacement of such preschool child prior to the annual review\nestablishing the placement for the next school year.\n h. Such special services or programs shall be furnished between the\nmonths of September and June of each year, except for those preschool\nchildren whose disabilities are severe enough to exhibit the need for a\nstructured learning environment of twelve months duration to prevent\nsubstantial regression. The committee shall include in its\nrecommendation for such services or programs a statement of the reasons\nfor such recommendation. The board, after consideration of the\nrecommendation of the committee, shall select an appropriate special\nservice or program for each preschool child eligible for such special\nservice or program during the months of July and August from among those\nprograms approved for such purpose by the commissioner. Nothing\ncontained herein shall be construed to prevent the committee from\nrecommending or the board from selecting a special service or program,\nor the frequency or duration of a special service or program, which is\ndifferent in type or intensity than the service or program that the\nchild is furnished between the months of September and June.\n 6. Professional practice issues. a. Notwithstanding any provisions of\nlaw to the contrary, approved programs operated by private providers\nshall be authorized to employ licensed professionals or contract with\nlicensed professionals or entities legally authorized to provide\nprofessional services in accordance with section sixty-five hundred\nthree-b of this chapter.\n b. An approved program may be formed as an education corporation, or\nwith the consent of the commissioner as: (i) a not-for-profit\ncorporation; (ii) a business corporation that has the operation of an\napproved program or another special education school as a primary\npurpose; (iii) a limited liability company; (iv) a professional service\nlimited liability company or a foreign professional service limited\nliability company in accordance with the applicable provisions of\narticle twelve or thirteen of the limited liability company law; (v) a\nregistered limited liability partnership or registered foreign limited\nliability partnership in accordance with article eight-B of the\npartnership law. In addition, a group of appropriately licensed or\ncertified professionals may be formed as a professional services\ncorporation established pursuant to article fifteen of the business\ncorporation law or as a professional service limited liability company,\nforeign professional service limited liability company or registered\nlimited liability partnership or registered foreign limited liability\npartnership in accordance with article eight-B of the partnership law.\nAn approved program formed as such a professional service limited\nliability company or registered limited liability partnership may be\nauthorized to provide special education itinerant services or other\neducational services not involving the practice of a profession under\ntitle eight of this chapter, and, upon grant of a waiver pursuant to\nsection sixty-five hundred three-b of this chapter, may employ or\ncontract with individuals licensed or otherwise authorized to practice,\nor with a professional service corporation, partnership or other entity\nlegally authorized to practice any profession under title eight of this\nchapter in which the entity would not be authorized to provide\nprofessional services under the applicable provisions of section twelve\nhundred three or subdivision (a) of section thirteen hundred one of the\nlimited liability company law or sections 121-1500 or 121-1502 of the\npartnership law, provided that such contract is within the scope of the\ndepartment's approval and is only for the purpose of conducting a\nmulti-disciplinary evaluation of a preschool child suspected of having a\ndisability or a preschool child with a disability or providing related\nservices specified in the individualized education program of a\npreschool child with a disability.\n c. Notwithstanding any other provision of law to the contrary, the\nexemption in subdivision two of section eighty-two hundred seven of this\nchapter shall apply to persons employed by a center-based program\napproved pursuant to subdivision nine of this section to perform the\nduties of a speech-language pathologist, audiologist, teacher of the\nspeech and deaf and hard of hearing or teacher of the deaf to students\nenrolled in such approved center-based program in the course of their\nemployment.\n * d. Notwithstanding any other provision of law to the contrary, the\nexemption in subdivision one of section seventy-six hundred five of this\nchapter shall apply to persons employed on a full-time or part-time\nsalary basis, which may include on an hourly, weekly, or monthly basis,\nor on a fee for evaluation services basis provided that such person is\nemployed by and under the dominion and control of a center-based program\napproved pursuant to subdivision nine of this section as a certified\nschool psychologist to provide activities, services and use of the title\npsychologist to students enrolled in such approved center-based program;\nand to certified school psychologists employed on a full-time or\npart-time salary basis, which may include on an hourly, weekly, or\nmonthly basis, or on a fee for evaluation services basis provided that\nthe school psychologist is employed by and under the dominion and\ncontrol of a program that has been approved pursuant to paragraph b of\nsubdivision nine of this section, or subdivision nine-a of this section,\nto conduct a multi-disciplinary evaluation of a preschool child having\nor suspected of having a disability where authorized by paragraph a of\nsubdivision six of section sixty-five hundred three-b of this chapter,\nin the course of their employment. Nothing in this section shall be\nconstrued to authorize a certified school psychologist or group of such\nschool psychologists to engage in independent practice or practice\noutside of an employment relationship.\n * NB Effective until June 30, 2026\n * d. Notwithstanding any other provision of law to the contrary, the\nexemption in subdivision one of section seventy-six hundred five of this\nchapter shall apply to persons employed by a center-based program\napproved pursuant to subdivision nine of this section as a school\npsychologist to provide activities, services and use of the title\npsychologist to students enrolled in such approved center-based program\nin the course of their employment.\n * NB Effective June 30, 2026\n 7. Appeals. * a. The parent may file a written request with the board\nfor an impartial hearing with respect to any matter relating to the\nidentification, evaluation or educational placement of, or provision of\na free appropriate public education to, the preschool child or a\nmanifestation determination or other matter relating to the preschool\nchild's placement upon discipline, provided, however, that mediation\nshall be available to the parent in accordance with the procedures\nspecified in section forty-four hundred four-a of this article.\n * NB Effective until June 30, 2027\n * a. If the determination of the board is not acceptable to the\nparent, or if the committee or board fails to make or effectuate such a\nrecommendation within such periods of time as are required by\nsubdivision five of this section or by the regulations of the\ncommissioner, such parent may file a written request with the board for\nan impartial hearing, provided, however, that mediation shall be\navailable to the parent in accordance with the procedures specified in\nsection forty-four hundred four-a of this article.\n * NB Effective June 30, 2027\n * b. Upon receipt of such request, the board shall provide for a\nhearing to be conducted in accordance with the provisions of subdivision\none of section forty-four hundred four of this article. The impartial\nhearing officer shall render a decision, and mail a copy of the decision\nto the parents and to the board, not later than thirty calendar days\nafter the receipt by the board of a request for a hearing or after the\ninitiation of such a hearing by the board. The decision of the impartial\nhearing officer shall be based solely upon the record of the proceeding\nbefore the impartial hearing officer, and shall set forth the reasons\nand the factual basis for the determination. The decision shall also\ninclude a statement advising the parents and the board of the right to\nobtain a review of such a decision by a state review officer. The board\nmay initiate a hearing to the extent provided in subdivision one of\nsection forty-four hundred four of this article.\n * NB Effective until June 30, 2027\n * b. Upon receipt of such request, the board shall provide for a\nhearing to be conducted in accordance with the provisions of subdivision\none of section forty-four hundred four of this article. The impartial\nhearing officer shall render a decision, and mail a copy of the decision\nto the parents and to the board, not later than thirty calendar days\nafter the receipt by the board of a request for a hearing or after the\ninitiation of such a hearing by the board. The decision of the impartial\nhearing officer shall be based solely upon the record of the proceeding\nbefore the impartial hearing officer, and shall set forth the reasons\nand the factual basis for the determination. The decision shall also\ninclude a statement advising the parents and the board of the right to\nobtain a review of such a decision by a state review officer.\n * NB Effective June 30, 2027\n * c. During the pendency of an appeal pursuant to this subdivision,\nunless the board and the parent otherwise agree:\n (i) a preschool child who has received services pursuant to\nsubdivision five of this section, shall remain in the current\neducational placement; or\n (ii) a preschool child not previously served pursuant to this section\nshall, if the parent agrees, receive services in the program designated\nby the board pursuant to such subdivision five, which designation\nresulted in such appeal.\n A preschool child who is transitioning from part C of the individuals\nwith disabilities education act and/or title two-A of article\ntwenty-five of the public health law and is no longer eligible for\nservices under part C and title two-A of article twenty-five of the\npublic health law by reason of age, the school district or other public\nagency is not required to provide the services that the child had been\nreceiving under part C and such title two-A. If the child is found\neligible for special education programs and services pursuant to this\nsection, and the parent or person in parental relation consents to the\ninitial provision of services, then the school district or other public\nagency shall provide those special education programs and services that\nare not in dispute between the parent and the school district or other\npublic agency.\n * NB Effective until June 30, 2027\n * c. During the pendency of an appeal pursuant to this subdivision,\nunless the board and the parent otherwise agree:\n (i) a preschool child who has received services pursuant to\nsubdivision five of this section, shall remain in the current\neducational placement; or\n (ii) a preschool child not previously served pursuant to this section\nshall, if the parent agrees, receive services in the program designated\nby the board pursuant to such subdivision five, which designation\nresulted in such appeal; or\n (iii) a preschool child who received services pursuant to section two\nhundred thirty-six of the family court act during the previous year may\nreceive, from the provider of such services, preschool special education\nservices in an approved program appropriate to the needs of such child.\n * NB Effective June 30, 2027\n d. A state review officer of the education department shall review the\ndecision of the impartial hearing officer in the manner prescribed in\nsubdivision two of section forty-four hundred four of this article and\nrender a decision no later than thirty days after the decision of such\nhearing officer.\n e. Review of the final determination or order of the state review\nofficer may be brought in the manner prescribed in subdivision three of\nsection forty-four hundred four of this article.\n 8. Transportation. The municipality in which a preschool child resides\nshall, beginning with the first day of service, provide either directly\nor by contract for suitable transportation, as determined by the board,\nto and from special services or programs; provided, however, that if the\nmunicipality is a city with a population of one million or more persons\nthe municipality may delegate the authority to provide such\ntransportation to the board; and provided further, that prior to\nproviding such transportation directly or contracting with another\nentity to provide such transportation, such municipality or board shall\nrequest and encourage the parents to transport their children at public\nexpense, where cost-effective, at a rate per mile or a public service\nfare established by the municipality and approved by the commissioner.\nExcept as otherwise provided in this section, the parents' inability or\ndeclination to transport their child shall in no way affect the\nmunicipality's or board's responsibility to provide recommended\nservices. Such transportation shall be provided once daily from the\nchild care location to the special service or program and once daily\nfrom the special service or program to the child care location up to\nfifty miles from the child care location. If the board determines that a\nchild must receive special services and programs at a location greater\nthan fifty miles from the child care location, it shall request approval\nof the commissioner. For the purposes of this subdivision, the term\n"child care location" shall mean a child's home or a place where care\nfor less than twenty-four hours a day is provided on a regular basis and\nincludes, but is not limited to, a variety of child care services such\nas day care centers, family day care homes and in-home care by persons\nother than parents. All transportation of such children shall be\nprovided pursuant to the procedures set forth in section two hundred\nthirty-six of the family court act using the date called for in the\nwritten notice of determination of the board or the date of the written\nnotice of determination of the board, whichever comes later, in lieu of\nthe date the court order was issued. Notwithstanding this subdivision or\nany provision of law to the contrary, transportation expenses incurred\nby a municipality for operating and maintenance costs pursuant to this\nsubdivision during the period between the issuance of executive order\n202.4 on March sixteenth, two thousand twenty and the issuance of\nexecutive order 202.28 on May seventh, two thousand twenty shall be\nreimbursable and considered approved costs in accordance with the\nprovisions of this section and the regulations of the commissioner.\n 9. Program approval. a. Providers of special services or programs\nshall apply to the commissioner for program approval on a form\nprescribed by the commissioner; such application shall include, but not\nbe limited to, a listing of the services to be provided, the population\nto be served, a plan for providing services in the least restrictive\nenvironment and a description of its evaluation component, if any. The\ncommissioner shall approve programs in accordance with regulations\nadopted for such purpose and shall periodically review such programs at\nwhich time the commissioner shall provide the municipality in which the\nprogram is located or for which the municipality bears fiscal\nresponsibility an opportunity for comment within thirty days of the\nreview. In collaboration with municipalities and representatives of\napproved programs, the commissioner shall develop procedures for\nconducting such reviews. Municipalities shall be allowed to participate\nin such departmental review process. Such review shall be conducted by\nindividuals with appropriate experience as determined by the\ncommissioner and shall be conducted not more than once every three\nyears.\n (iii) Commencing July first, nineteen hundred ninety-six and\ncontinuing through June thirtieth, two thousand three, a moratorium on\nthe approval of any new or expanded programs in settings which include\nonly preschool children with disabilities is established. Exceptions\nshall be made for cases in which school districts document a critical\nneed for a new or expanded program in a setting which includes only\npreschool children with disabilities, to meet the projected demand for\nservices for preschool children in the least restrictive environment.\nApplications for new or expanded programs may be made directly to the\nstate education department. Nothing herein shall prohibit the\ncommissioner from approving the modification of a full-day program into\nhalf-day sessions.\n Commencing July 1, 1999 the department shall only approve any new or\nexpanded programs in settings which include only preschool children with\ndisabilities, if the applicant can document a critical need for a new or\nexpanded program in a setting which includes only preschool children\nwith disabilities to meet the projected demand for services for\npreschool children in the least restrictive environment. If the\ndepartment determines that approval will not be granted, it must notify\nthe applicant, in writing, of its reasons for not granting such\napproval. The department shall establish guidelines, within 90 days of\nthe effective date of this section which shall state the criteria used\nto determine if the applicant has demonstrated such a critical need. The\ndepartment is authorized to consult with the local school district to\nverify any data submitted.\n On December 1, 2003 the commissioner shall submit a report to the\nboard of regents, the majority leader of the senate, the speaker of the\nassembly and governor evaluating the impact of such moratorium on the\navailability of preschool special education services. The report shall\ninclude: (i) information regarding the number of applications for new\nprograms and program expansions and the disposition of those\napplications by the commissioner; (ii) an assessment of the projected\nneed for additional classes serving only disabled children and those\nserving disabled children with their non-disabled peers and in other\nless restrictive settings; (iii) an assessment of the projected need for\nadditional programs due to program closings in the region, number of\nchildren receiving early intervention services and existing waiting\nlists; (iv) an assessment of the distance that children must be\ntransported to receive preschool special education services; (v) an\nevaluation of the programmatic performance and cost-effectiveness of\nexisting programs; (vi) recommendations regarding ways in which improved\nquality and cost-effectiveness could be achieved through the selective\nexpansion of effective programs and/or the curtailment of less effective\nprograms; and (vii) an assessment of the availability and effectiveness\nof approved programs providing services to preschool children with\nautism.\n b. As part of an application submitted pursuant to paragraph a of this\nsubdivision, a provider of special services or programs shall submit a\ndescription of its multi-disciplinary evaluation component, if any,\nwhich shall be subject to the approval of the commissioner in accordance\nwith regulations adopted for such purpose after consultation with the\nappropriate advisory committee. Such components or program may rely in\npart on formal written agreements or affiliations with appropriately\ncertified or licensed professionals, or agencies employing such\nprofessionals, provided that such professionals or agencies perform\ntheir responsibilities in conformance with regulations of the\ncommissioner and that providers fully disclose any such arrangements on\nall applications for program approval, and provided further that the\nprovider certifies that it shall apply for and obtain a waiver pursuant\nto section sixty-five hundred three-b of this chapter prior to providing\nevaluation services pursuant to such written agreements or affiliations.\nNothing herein shall require a provider of special services or programs\nto have a multidisciplinary evaluation program.\n c. Municipalities, or in the case of a city of one million or more\npersons, the board, shall maintain a list of appropriately certified or\nlicensed professionals to deliver related services consistent with this\nsection and the regulations of the commissioner and shall determine\nreasonable reimbursement for such services subject to the approval of\nthe commissioner. Such list shall also include reasonable reimbursement,\nas determined by the municipality and approved by the commissioner and\nthe director of the budget, for the coordination of two or more related\nservices pursuant to paragraph d of subdivision five of this section.\n d. Providers may make application to conduct a program that relies on\nformal written agreements or affiliations with other approved programs\nor appropriately certified or licensed professionals, provided that such\narrangements are fully disclosed on all applications to the commissioner\nfor program approval, and provided further that the provider certifies\nit shall apply for and obtain a waiver pursuant to section sixty-five\nhundred three-b of this chapter prior to providing related services\npursuant to any such written agreements or affiliations involving\nlicensed professionals.\n e. Nothing herein shall preclude an approved program from providing\nservices in the preschool child's home.\n f. As part of an application submitted pursuant to paragraph a of this\nsubdivision, a provider of special services or programs shall describe\nany program in which preschool children will receive services in\nconjunction with children placed pursuant to section two hundred\nthirty-six of the family court act or title II-A of article twenty-five\nof the public health law. If such preschool program otherwise meets the\ncriteria for approval of preschool programs established by regulations\nof the commissioner, the commissioner shall approve such program.\n g. As part of an application submitted pursuant to paragraph a of this\nsubdivision, a provider of special services or programs shall certify\npursuant to regulations promulgated by the commissioner that it will\ntake measures to ensure its executive director or person performing the\nduties of a chief executive officer: (i) meets the criteria established\nby the commissioner to be an executive director; and (ii) if paid as a\nfull time executive director, he or she is employed in a full time, full\nyear position and shall not engage in activity that would interfere with\nor impair such executive director's ability to carry out and perform his\nor her duties, responsibilities and obligations.\n * 9-a. (a) A group of appropriately licensed and/or certified\nprofessionals associated with a public or private agency may apply to\nthe commissioner for approval as an evaluator on a form prescribed by\nthe commissioner. The commissioner shall approve evaluators pursuant to\nthis subdivision consistent with the approval process for the\nmulti-disciplinary evaluation component of programs approved pursuant to\nsubdivision nine of this section consistent with regulations adopted\npursuant to such subdivision. All school districts are deemed approved\nevaluators of preschool students suspected of having a disability\nwithout the need to submit an application to the commissioner if staff\nwho provide such evaluation services shall have appropriate licensure\nand/or certification.\n Such application shall include, but not be limited to, a description\nof the multi-disciplinary evaluation services proposed to be provided\nand a demonstration that all agency employees and staff who provide such\nevaluation services shall have appropriate licensure and/or\ncertification and that the individual who shall have direct supervision\nresponsibilities over such staff shall have an appropriate level of\nexperience in providing evaluation or services to preschool or\nkindergarten-aged children with disabilities. To be eligible for\napproval as an evaluator under this subdivision on and after July first,\ntwo thousand eleven, a group of appropriately licensed or certified\nprofessionals shall be formed as a limited liability company or\nprofessional services corporation established pursuant to article\nfifteen of the business corporation law, article twelve or thirteen of\nthe limited liability company law or article eight-B of the partnership\nlaw. The approval of any groups of licensed or certified professionals\nthat are in existence on July first, two thousand eleven and would not\nbe eligible for approval thereafter shall terminate on July first, two\nthousand thirteen.\n (b) The commissioner shall periodically review such evaluators at\nwhich time the commissioner shall provide the municipality in which the\nevaluator is located an opportunity for comment.\n (c) The commissioner shall establish a billing and reimbursement\nsystem for services provided by school districts and evaluators approved\npursuant to the provisions of this subdivision consistent with billing\nand reimbursement for evaluation services provided by evaluators\napproved pursuant to the provisions of subdivision nine of this section.\n * NB Repealed July 1, 2026\n 9-b. Program reapproval process. The commissioner shall periodically\nreview and reapprove programs, including the provision of evaluation\nservices, in accordance with regulations adopted for such purpose, which\nshall include reapproval criteria designed to assure that quality\nservices are provided in a necessary and cost efficient manner and in\nthe least restrictive environment which may include settings in which\nage-appropriate peers without disabilities are typically found. In\nreviewing programs and the provision of evaluation services, the\ncommissioner shall consider factors including, but not limited to, the\npercentage of children receiving services from the approved program that\nconducted the evaluation of the child; and whether there has been\nevidence of misleading or erroneous advertising. The division of the\nbudget shall consider in a timely manner all requests submitted by the\ndepartment to hire sufficient staff to conduct such periodic reapproval\nof programs, as determined by the commissioner, using available federal\nfunds.\n Such reapproval process shall provide the municipality in which the\nprogram is located or for which the municipality bears fiscal\nresponsibility, an opportunity for comment thirty or more days prior to\ncompletion of the reapproval. In collaboration with municipalities and\nrepresentatives of approved programs, the commissioner shall develop\nprocedures for conducting such reapprovals. Municipalities shall be\nallowed to participate in such departmental review process. Such\nreapprovals shall be conducted by individuals with appropriate\nexperience as determined by the commissioner and shall be conducted not\nmore than once every three years, unless the commissioner, on his or her\nown initiative or at the request of a municipality, determined that\nreapprovals are earlier or more frequently required. The commissioner\nshall commence such reapproval process no later than January fifteenth,\nnineteen hundred ninety-seven. Program reapprovals may result in\ndisapproval of the entire program or a component of the program,\nincluding but not limited to the evaluation component. In reapproving a\nprogram component, such approval criteria shall include, but not be\nlimited to:\n a. the extent to which the program offers services in settings with\nregular contact with age-appropriate peers, where appropriate to the\nneeds of the population served; and\n b. whether there has been evidence of misleading or erroneous\nadvertising.\n Such reapproval shall assure an appropriate opportunity to be heard on\nthe findings of the reapproval and the opportunity to address such\nfindings through corrective or remedial action, where applicable. Such\nreapproval process shall also provide for the determination of action on\nthe part of the department to address the findings of the reapproval\nwhich may include, but not be limited to, the withdrawal of approval to\nprovide evaluation services.\n 9-c. Advertising. The commissioner is authorized to require approved\nprograms and evaluators to periodically submit copies of advertising for\nreview, and to commence a proceeding to revoke the approval of an\napproved program or evaluator pursuant to this subdivision for false,\nmisleading, deceptive or fraudulent advertising pursuant to regulations\nto be promulgated by the commissioner, which shall be consistent with\narticle twenty-two-a of the general business law. Such regulations shall\nprohibit advertisements from including misleading or erroneous\ninformation with respect to services to be provided to preschool\nchildren and their families. The department shall issue guidelines as to\nappropriate advertising content. In a revocation proceeding, such\nguidelines shall not be presumptive evidence that particular advertising\nis appropriate.\n 9-d. Business plans. Approved providers of special services and\nprograms, including local educational agencies, shall develop and submit\nto the commissioner, by January first, nineteen hundred ninety-seven, a\nbusiness plan, the contents of which shall be determined by the\ncommissioner, which redirects fiscal and personnel resources toward\nproviding special education programs and services in settings with\nchildren who do not have disabilities, and reduces the reliance on\nprograms and settings which include only preschool children with\ndisabilities.\n 10. Approved costs. a. (i) (A) Commencing with the nineteen hundred\nninety--ninety-one school year, the commissioner shall annually\ndetermine the tuition rate for approved services or programs provided to\npreschool children pursuant to this section. Such rates for providers of\nsuch services and programs shall be determined in conformance with a\nmethodology established pursuant to subdivision four of section\nforty-four hundred five of this article after consultation with and a\nreview of an annual report prepared by the advisory committee\nestablished pursuant to paragraph a of subdivision twelve of this\nsection and shall be subject to the approval of the director of the\nbudget. Notwithstanding any other provision of law, rule or regulation\nto the contrary, tuition rates established for the nineteen hundred\nninety-five--ninety-six school year shall exclude the two percent cost\nof living adjustment authorized in rates established for the nineteen\nhundred ninety-four--ninety-five school year.\n (B) Commencing with the two thousand fifteen--two thousand sixteen\nschool year, such special education itinerant services shall be provided\nby approved programs, and such approved programs shall be reimbursed for\nsuch services based on the actual attendance of preschool children\nreceiving such services.\n (C) Notwithstanding any other provision of law, rule or regulation to\nthe contrary, on or before the two thousand sixteen--two thousand\nseventeen school year and thereafter, to be phased-in over no more than\nfour years from such starting year, the commissioner, subject to the\napproval of the director of the budget, shall establish regional tuition\nrates for special education itinerant services based on average actual\ncosts in accordance with a methodology established pursuant to\nsubdivision four of section forty-four hundred five of this article.\n (D) Notwithstanding any other provision of law, rule or regulation to\nthe contrary, commencing with the two thousand eighteen--two thousand\nnineteen school year, approved preschool integrated special class\nprograms shall be reimbursed for such services based on an alternative\nmethodology for reimbursement to be established by the commissioner. In\ndeveloping such methodology the commissioner shall seek input from\nstakeholders that would be impacted by such alternative methodology. The\nalternative methodology, subject to the approval of the director of the\nbudget, shall be proposed by the department no later than April first,\ntwo thousand eighteen.\n (ii) Upon request, the commissioner shall, on a timely basis, transmit\nto the municipality in which an approved program is located any\ninformation provided by such approved program for the purpose of\nestablishing a rate for the program.\n (iii) Following determination of tuition rates pursuant to\nsubparagraph (i) of this paragraph, the commissioner shall submit such\nrates to the director of the budget for approval and shall\nsimultaneously transmit to each municipality the rates for programs\nlocated in the municipality. Within thirty calendar days of the\ncommissioner's transmittal date, the municipality may submit comments in\nwriting to the commissioner. The commissioner shall consider such\ncomments and, if he deems it appropriate, adjust such rate prior to\nfinal action by the director of the budget. If the commissioner does not\nadjust the rate, the commissioner shall respond to the comments\npresented by the municipality.\n b. Reimbursement for evaluations conducted by approved evaluators\nshall be provided pursuant to regulations of the commissioner after\nconsultation with the advisory committee established pursuant to\nparagraph a of subdivision twelve of this section and shall be subject\nto approval by the director of the budget.\n c. Approved costs for transportation shall be the costs incurred by\nthe municipality in accordance with the provisions of subdivision eight\nof this section. The commissioner shall establish, in consultation with\nthe municipalities, and with the approval of the director of the budget,\nregional ceilings for each region of the state, as defined by the\ncommissioner, on the maximum allowable state reimbursement. In\ndeveloping such ceilings, the commissioner shall consider the size of\nthe geographic area to be served, the projected number of children\nrequiring transportation services and such other factors as the\ncommissioner shall determine may influence the cost of transportation\nservices.\n d. (i) At the beginning of the school year, the commissioner shall\nallocate funds for reimbursement of allowable administrative costs, as\ndefined in regulations of the commissioner, incurred by a board pursuant\nto this section. Such allocation shall be in an amount equal to a school\ndistrict's pro rata share of the statewide base year count of preschool\nchildren as a percent of federal funds available for such reimbursement,\nas determined by the commissioner. In January of any school year in\nwhich additional federal funds are determined by the commissioner to be\navailable for such reimbursement, the commissioner shall equitably\nallocate such funds for reimbursement of allowable administrative costs,\nin a manner determined by the commissioner which is consistent with\nfederal statutes and regulations governing the use of federal funds, to\nschool districts which have demonstrated a need for such additional\nfunds. At the close of the school year for which such funds were\nallocated, each board shall submit, in a form prescribed by the\ncommissioner, a statement of the allowable administrative costs incurred\npursuant to this section. A board may, subject to approval of the\ncommissioner, submit any allowable administrative costs for which\nfederal funds are not allocated to that school district pursuant to this\nsubdivision to the appropriate municipality or municipalities for\nreimbursement pursuant to subdivision eleven of this section.\n (ii) Boards may submit reasonable costs incurred pursuant to\nparagraphs a through d of subdivision seven of this section to the\nappropriate municipality for reimbursement. Boards may also submit to\nthe appropriate municipality for reimbursement of reasonable costs\nincurred pursuant to paragraph e of subdivision seven of this section:\n(A) in an action or proceeding brought by another party or (B) in an\naction or proceeding brought by the board, other than an action or\nproceeding brought against the state, a department, board or agency of\nthe state or a state officer, except where such state defendant is\njoined as a necessary party to such action or proceeding, if, upon final\ndisposition of the action or proceeding, the board receives a judgment\nin its favor annulling the determination or order of the state review\nofficer. The municipality shall be reimbursed for payment of such costs\npursuant to subdivision eleven of this section.\n (iii) On or after July first, nineteen hundred ninety, and annually\nthereafter until June thirtieth, two thousand one, municipalities shall\nbe eligible for reimbursement for administrative costs incurred during\nthe preceding year of fifty dollars for each eligible preschool child\nserved in such year pursuant to this section. On or after July first,\ntwo thousand one, and annually thereafter, municipalities shall be\neligible for reimbursement for administrative costs incurred during the\npreceding year of seventy-five dollars for each eligible preschool child\nserved in such year pursuant to this section. Each municipality shall\nsubmit a claim in a form prescribed by the commissioner. Upon approval,\nreimbursement shall be made by the commissioner from appropriations\navailable therefor. Such reimbursement shall be made in the first\ninstance from any federal funds designated under federal law for local\nuse, as determined by the commissioner, that are available after\nsatisfying the provisions of subparagraph (i) of this paragraph. To the\nextent that such federal funds are not sufficient or available to\nreimburse a municipality for such costs, reimbursement shall be made\nwith state funds.\n e. Public special education funding provided for the purposes of this\nsection shall not be used to purchase regular preschool educational\nservices, day care or other child care services, or to purchase any\ninstructional service other than special services or programs as defined\nin subdivision two of section forty-four hundred one of this article or\nin this section, and the purchase of such regular preschool educational\nservices and child care services shall not be approvable pursuant to\nthis section as a charge upon the municipality or the board.\n 11. Financial responsibility for approved costs. a. The approved costs\nfor a preschool child who receives services pursuant to this section\nshall be a charge upon the municipality wherein such child resides. All\napproved costs shall be paid in the first instance and at least\nquarterly by the appropriate governing body or officer of the\nmunicipality upon vouchers presented and audited in the same manner as\nthe case of other claims against the municipality. Notwithstanding any\ninconsistent provisions of this section, upon notification by the\ncommissioner, a municipality may withhold payments due any provider for\nservices rendered to preschool children in a program for which the\ncommissioner has been unable to establish a tuition rate due to the\nfailure of the provider to file complete and accurate reports for such\npurpose, as required by the commissioner.\n b. (i) Commencing with the reimbursement of municipalities for\nservices provided pursuant to this section on or after July first,\nnineteen hundred ninety-three, the state shall reimburse fifty-nine and\none half percent of the approved costs paid by a municipality for the\npurposes of this section. Commencing with the reimbursement of\nmunicipalities for services provided pursuant to this section on or\nafter July first, nineteen hundred ninety-four, the state shall\nreimburse sixty-nine and one-half percent of the approved costs paid by\na municipality for the purposes of this section. The state shall\nreimburse fifty percent of the approved costs paid by a municipality for\nthe purposes of this section for services provided prior to July first,\nnineteen hundred ninety-three. Such state reimbursement to the\nmunicipality shall not be paid prior to April first of the school year\nin which such approved costs are paid by the municipality.\n (ii) In accordance with a schedule adopted by the commissioner, each\nmunicipality which has been notified by a board of its obligation to\ncontract for the provision of approved special services or programs for\na preschool child shall be provided with a listing of all such children\nby the commissioner. Such list shall include approved services and costs\nas prescribed by the commissioner for each such child for whom the\nmunicipality shall certify, on such list, the amount expended for such\npurposes and the date of expenditure. Upon the receipt of such certified\nstatement, the commissioner shall examine the same, and if such\nexpenditures were made as required by this section, the commissioner\nshall approve it and transmit it to the comptroller for audit. The\ncomptroller shall thereupon issue his warrant, in the amount specified\nin such approved statement for the payment thereof out of moneys\nappropriated therefor, to the municipal treasurer or chief fiscal\nofficer as the case may be.\n (iii) (a) Notwithstanding the provisions of this paragraph, any monies\ndue municipalities pursuant to this paragraph for services provided\nduring the two thousand eight--two thousand nine and prior school years\nshall be reduced by an amount equal to the product of the percentage of\nthe approved costs reimbursed by the state pursuant to subparagraph (i)\nof this paragraph and any federal participation, pursuant to title XIX\nof the social security act, in special education programs provided\npursuant to this section. The commissioner shall deduct such amount, as\ncertified by the commissioner of health as the authorized fiscal agent\nof the state education department. Such deductions shall be made in\naccordance with a plan developed by the commissioner and approved by the\ndirector of the budget. To the extent that such deductions exceed moneys\nowed to the municipality pursuant to this paragraph, such excess shall\nbe deducted from any other payments due the municipality.\n (b) Any moneys due municipalities pursuant to this paragraph for\nservices provided during the two thousand nine--two thousand ten school\nyear and thereafter, or for services provided in a prior school year\nthat were not reimbursed by the state on or before April first, two\nthousand eleven, shall, in the first instance, be designated as the\nstate share of moneys due a municipality pursuant to title XIX of the\nsocial security act, on account of school supportive health services\nprovided to preschool students with disabilities pursuant to this\nsection. Such state share shall be assigned on behalf of municipalities\nto the department of health, as provided herein; the amount designated\nas such nonfederal share shall be transferred by the commissioner to the\ndepartment of health based on the monthly report of the commissioner of\nhealth to the commissioner; and any remaining moneys to be apportioned\nto a municipality pursuant to this section shall be paid in accordance\nwith this section. The amount to be assigned to the department of\nhealth, as determined by the commissioner of health, for any\nmunicipality shall not exceed the federal share of any moneys due such\nmunicipality pursuant to title XIX of the social security act. Moneys\ndesignated as state share moneys shall be paid to such municipality by\nthe department of health based on the submission and approval of claims\nrelated to such school supportive health services, in the manner\nprovided by law.\n (iv) Notwithstanding any other provision of law to the contrary, no\npayments shall be made by the commissioner pursuant to this section on\nor after July first, nineteen hundred ninety-six based on a claim for\nservices provided during school years nineteen hundred\neighty-nine--ninety, nineteen hundred ninety--ninety-one, nineteen\nhundred ninety-one-ninety-two, nineteen hundred\nninety-two--ninety-three, nineteen hundred ninety-three--ninety-four,\nand nineteen hundred ninety-four--ninety-five which is submitted later\nthan two years after the end of the nineteen hundred\nninety-five--ninety-six school year; provided, however, that no payment\nshall be barred or reduced where such payment is required as a result of\na court order or judgment or a final audit, and provided further that\nthe commissioner may grant a waiver to a municipality excusing the late\nfiling of such a claim upon a finding that the delay was caused by a\nparty other than the municipality or a board to which the municipality\ndelegated authority pursuant to paragraph f of subdivision five or\nsubdivision eight of this section.\n (v) Notwithstanding any other provision of law to the contrary, no\npayments shall be made by the commissioner pursuant to this section on\nor after July first, nineteen hundred ninety-six based on a claim for\nservices provided in the nineteen hundred ninety-five--ninety-six school\nyear or thereafter which is submitted later than three years after the\nend of the school year in which services were rendered, provided,\nhowever, that no payment shall be barred or reduced where such payment\nis required as a result of a court order or judgment or a final audit,\nand provided further that the commissioner may grant a waiver to a\nmunicipality excusing the late filing of such a claim upon a finding\nthat the delay was caused by a party other than the municipality or a\nboard to which the municipality delegates authority pursuant to\nparagraph f of subdivision five or subdivision eight of this section.\n (vi) Notwithstanding any other provision of law to the contrary,\nbeginning with state reimbursement otherwise payable in the two thousand\nsix--two thousand seven state fiscal year and in each year thereafter,\npayments pursuant to this section, subject to county agreement and in\nthe amounts specified in such agreement, shall be paid no later than\nJune thirtieth of the state fiscal year next following the state fiscal\nyear in which such reimbursement was otherwise eligible for payment and\nin which the liability to the county for such state reimbursement\naccrued, provided that such payments in a subsequent state fiscal year\nshall be recognized by the state and the applicable county as satisfying\nthe state reimbursement obligation for the prior state fiscal year. Any\nunspent amount associated with such county agreements shall not be\navailable for payments to other counties or municipalities.\n c. (i) Each municipality, or, in addition, in the case of a city of\none million or more persons, the board, may perform a fiscal audit of\nsuch services or programs for which it bears fiscal responsibility in\naccordance with audit standards established by the commissioner, which\nmay include site visitation. The department shall provide guidelines on\nstandards and procedures to municipalities and boards, for fiscal audits\nof services or programs pursuant to this section. Prior to commencing a\nfiscal audit pursuant to this subparagraph, a municipality shall\nascertain that neither the state nor any other municipality has\nperformed a fiscal audit of the same services or programs within the\ncurrent fiscal year for such program. If it is determined that no such\naudit has been performed, the municipality shall inquire with the\ndepartment to determine which other municipalities, if any, bear\nfinancial responsibility for the services or programs to be audited and\nshall afford such other municipalities an opportunity to recommend\nissues to be examined through the audit. Municipalities completing\naudits pursuant to this subparagraph shall provide copies to the\ndepartment, the provider of the services and programs and all other\nmunicipalities previously determined to bear financial responsibility\nfor the audited services and programs. No other municipality may conduct\nan additional fiscal audit of the same services or programs during such\ncurrent fiscal year for such program.\n (ii) Payments made pursuant to this section by a municipality shall,\nupon conclusion of the July first to June thirtieth school year for\nwhich such payment was made, be subject to audit against the actual\ndifference between such audited expenditures and revenues. The\nmunicipality shall submit the results of any such audit to the\ncommissioner and the commissioner of social services, if appropriate,\nfor review and, if warranted, adjustment of the tuition and/or\nmaintenance rates. The municipality is authorized to recover\noverpayments made to a provider of special services or programs pursuant\nto this section as determined by the commissioner or the commissioner of\nhealth based upon their adjustment of a tuition and/or maintenance rate,\nprovided that for purposes of making such adjustment and recovery, the\nmunicipality shall be deemed to have paid one hundred percent of the\ndisallowed costs. Such recovery may be accomplished by withholding such\namount from any moneys due the provider in the current year, or by\ndirect reimbursement. The commissioner shall promulgate rules and\nregulations necessary to implement the provisions of this paragraph\nwithin sixty days of the effective date of the chapter of the laws of\ntwo thousand thirteen which amended this subparagraph.\n 12. Advisory committees. a. The commissioner shall establish an\nadvisory committee consisting of representatives of municipalities to\nadvise the commissioner on establishing the rate methodology authorized\nby subdivision ten of this section.\n b. The commissioner shall establish such other advisory committees as\nhe deems necessary to implement the provisions of this section.\n 13. a. The commissioner shall adopt regulations to implement the\nprovisions of this section. Such regulations shall include:\n (i) regional cost ceilings on average per pupil transportation cost\nfor the reimbursement of transportation expenditures, where regions\nshall be as defined by the commissioner;\n (ii) the requirement that committees identify transportation options\nfor preschool children, consistent with this article, including\nencouraging parents to transport their children at public expense where\ncost-effective; and\n (iii) the requirement that each program approved pursuant to the\nprovisions of this section shall make application to the commissioner\nfor approval to provide special education itinerant services.\n b. The commissioner shall ensure that eligibility criteria are\nconsistently applied.\n c. The commissioner shall, in consultation with clinicians trained in\nearly childhood educational services, municipal representatives,\nrepresentatives of parents of children requiring preschool and school\nage special education services, representatives of statewide and\nregional provider organizations, academic experts concerned with the\nprovision of special education services, and such other early childhood\neducation professionals as the commissioner shall deem appropriate,\ndevelop clinical practice guidelines for the purpose of assisting\nevaluators with respect to appropriate diagnosis and evaluation, and\ncommittees with respect to the type, frequency and duration of services.\nThe commissioner may at his or her own discretion use existing advisory\ncommittees and may add additional members to develop these guidelines.\nSuch guidelines shall be designed to assure that appropriate services\nare provided in a manner which is necessary and cost efficient, and in\nthe least restrictive environment, and shall promote the education of\nchildren in integrated settings with children who do not have\ndisabilities insofar as possible and appropriate, including through the\nprovision of related services or special education itinerant services.\n * d. The commissioner shall establish procedures for administrative\nappeals to resolve interagency disputes between boards and\nmunicipalities over responsibility for provision of, or payment for,\nspecial education programs or services to preschool children with\ndisabilities. During the pendency of any such appeal, the board or,\nwhere applicable, a state department or agency responsible for\ndeveloping the preschool child's individualized education program, shall\nprovide and pay for the special education programs and services on the\npreschool child's individualized education program and may seek\nreimbursement in the appeal. The commissioner shall be authorized to\nmake all orders that in the commissioner's judgment are proper or\nnecessary to give effect to the decision in the appeal. Upon a\ndetermination that a public agency has failed to provide or pay for such\nspecial education programs and services, the commissioner shall certify\nthe amount of such costs to the state comptroller and the state\ncomptroller to deduct such amount from any state funds that become due\nto such public agency.\n * NB Repealed June 30, 2027\n