S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   6576
 
                        2021-2022 Regular Sessions
 
                           I N  A S S E M B L Y
 
                              March 19, 2021
                                ___________
 
 Introduced  by  M.  of  A.  EICHENSTEIN -- read once and referred to the
   Committee on Education
 
 AN ACT to amend the education  law,  in  relation  to  the  handling  of
   appeals  regarding  recommendations  for  children  with  handicapping
   conditions
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1. Item (i) of clause (b) of subparagraph 3 of paragraph b of
 subdivision 1 of section 4402 of the education law, as amended by  chap-
 ter 378 of the laws of 2007, is amended to read as follows:
   (i) Make recommendations based upon a written evaluation setting forth
 the  reasons for the recommendations, to the child's parent or person in
 parental relation and board of education or trustees as  to  appropriate
 educational  programs and placement in accordance with the provisions of
 subdivision six of section forty-four hundred one-a of this article, and
 as to the advisability of continuation, modification, or termination  of
 special  class or program placements which evaluation shall be furnished
 to the child's parent or person in parental relation together  with  the
 recommendations  provided,  however  that  the committee may recommend a
 placement in a school which uses psychotropic drugs only if such  school
 has  a  written  policy  pertaining  to such use that is consistent with
 subdivision four-a of section thirty-two hundred eight of  this  chapter
 and that the parent or person in parental relation is given such written
 policy  at  the time such recommendation is made. If such recommendation
 is not acceptable to the parent or person  in  parental  relation,  such
 parent  or person in parental relation may appeal such recommendation as
 provided for in section forty-four hundred four of this [chapter]  ARTI-
 CLE.  PROVIDED,  FURTHER,  THAT  IN A SCHOOL DISTRICT IN A CITY HAVING A
 POPULATION OF ONE MILLION OR MORE A PARENT'S APPEAL OF SUCH  RECOMMENDA-
 TION  SHALL  BE  RESOLVED,  EITHER THROUGH THE GRANTING OR DENIAL OF THE
 APPEAL BY AN IMPARTIAL HEARING OFFICER, OR BY A STATE REVIEW OFFICER, OR
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD08863-03-1

 A. 6576                             2
 
 BY A COURT, OR BY THE SIGNING OF  A  SETTLEMENT  AGREEMENT  BETWEEN  THE
 PARENT  OR PERSON IN PARENTAL RELATION AND THE BOARD OF EDUCATION OF THE
 SCHOOL DISTRICT IN THE CITY HAVING A POPULATION OF ONE MILLION  OR  MORE
 OR STATE AGENCY.
   § 1-a. Clause (b) of subparagraph 3 of paragraph b of subdivision 1 of
 section 4402 of the education law, as amended by chapter 716 of the laws
 of 1991, is amended to read as follows:
   (b) Make recommendations based upon a written evaluation setting forth
 the  reasons for the recommendations, to the child's parent or person in
 parental relationship and board of education or trustees as to appropri-
 ate educational programs and placement in accordance with the provisions
 of subdivision six of section forty-four hundred one-a of this  article,
 and as to the advisability of continuation, modification, or termination
 of  special  class  or  program  placements  which  evaluation  shall be
 furnished to the child's  parent  or  person  in  parental  relationship
 together  with  the recommendations provided, however that the committee
 may recommend a placement in a school which uses psychotropic drugs only
 if such school has a written policy pertaining to such use and that  the
 parent  or  person in parental relationship is given such written policy
 at the time such recommendation is made. If such recommendation  is  not
 acceptable to the parent or person in parental relationship, such parent
 or  person  in  parental  relationship may appeal such recommendation as
 provided for in section forty-four hundred four of this [chapter]  ARTI-
 CLE.  PROVIDED,  FURTHER,  THAT  IN A SCHOOL DISTRICT IN A CITY HAVING A
 POPULATION OF ONE MILLION OR MORE A PARENT'S APPEAL OF SUCH  RECOMMENDA-
 TION  SHALL  BE  RESOLVED,  EITHER THROUGH THE GRANTING OR DENIAL OF THE
 APPEAL BY AN IMPARTIAL HEARING OFFICER, OR BY A STATE REVIEW OFFICER, OR
 BY A COURT, OR BY THE SIGNING OF  A  SETTLEMENT  AGREEMENT  BETWEEN  THE
 PARENT  OR PERSON IN PARENTAL RELATION AND THE BOARD OF EDUCATION OF THE
 SCHOOL DISTRICT IN THE CITY HAVING A POPULATION OF ONE MILLION  OR  MORE
 OR STATE AGENCY.
   § 2. Paragraph a of subdivision 1 of section 4404 of the education law
 is amended by adding a new closing paragraph to read as follows:
   NOTWITHSTANDING  ANY OTHER PROVISION OF LAW, RULE OR REGULATION TO THE
 CONTRARY, IN A SCHOOL DISTRICT IN A CITY  HAVING  A  POPULATION  OF  ONE
 MILLION  OR  MORE,  UPON  THE  DECISION OF AN IMPARTIAL HEARING OFFICER,
 STATE REVIEW OFFICER, OR BY A COURT FINDING, OR  BY  THE  SIGNING  OF  A
 SETTLEMENT  AGREEMENT  BETWEEN THE PARENT OR PERSON IN PARENTAL RELATION
 AND THE BOARD OF EDUCATION OF THE SCHOOL DISTRICT IN THE CITY  HAVING  A
 POPULATION  OF  ONE MILLION OR MORE OR A STATE AGENCY, THAT A UNILATERAL
 PARENTAL PLACEMENT SHALL BE MADE AND  THAT  TUITION  PAYMENTS  SHALL  BE
 GRANTED  FOR  SUCH UNILATERAL PLACEMENT, THEN SUCH PLACEMENT AND TUITION
 PAYMENTS SHALL CONTINUE WITH SUCH UNINTERRUPTED BIMONTHLY PAYMENTS BEING
 AT THE TUITION COST AS THE PREVIOUS YEAR'S PAYMENTS,  UNLESS  AND  UNTIL
 THE COMMITTEE ON SPECIAL EDUCATION DETERMINES THAT THE CHILD'S NEEDS CAN
 BE MET IN ANOTHER PUBLIC OR APPROVED PRIVATE SCHOOL PROGRAM DUE TO REGU-
 LARLY SCHEDULED INDIVIDUALIZED EDUCATION PROGRAM MEETINGS AND WHERE SUCH
 DETERMINATION WAS BASED UPON A SIGNIFICANT REVISION TO THE CHILD'S INDI-
 VIDUALIZED  EDUCATION  PROGRAM THAT IS CAUSED BY A SUBSTANTIAL CHANGE TO
 THE CHILD'S DISABILITY STATUS THAT REQUIRES THE COMMITTEE  TO  RECOMMEND
 SUCH  NEW PLACEMENT; PROVIDED, HOWEVER, THAT TO QUALIFY FOR SUCH TUITION
 PAYMENTS PROVIDED PURSUANT TO THIS PARAGRAPH, THE FAMILY OF  SUCH  CHILD
 SHALL  HAVE  AN INCOME OF FOUR TIMES OR LESS THAN THE INCOME ELIGIBILITY
 REQUIREMENTS UNDER  THE  FEDERAL  NATIONAL  SCHOOL  LUNCH  PROGRAM;  AND
 PROVIDED  FURTHER  THAT  WHERE THE PARENT OR PERSON IN PARENTAL RELATION
 BRINGS A DUE PROCESS PROCEEDING TO CHALLENGE SUCH  REVISED,  NEW  PLACE-

 A. 6576                             3
 
 MENT,  THE  UNILATERAL  PARENTAL PLACEMENT FOR WHICH TUITION PAYMENT WAS
 GRANTED SHALL BE THE PENDENCY PLACEMENT, AS PROVIDED IN SUBDIVISION FOUR
 OF THIS SECTION.  IF THERE IS A SIGNIFICANT CHANGE IN A CHILD'S INDIVID-
 UALIZED  EDUCATION  PROGRAM  DURING  THE COURSE OF THE SCHOOL YEAR, SUCH
 THAT THE CHILD WOULD NO  LONGER  BE  ENTITLED  TO  RECEIVE  ALL  OF  THE
 SERVICES  THAT  THE CHILD HAD BEEN RECEIVING FROM THE NON-PUBLIC SCHOOL,
 THE CHILD'S PARENTS SHALL NOT BE REQUIRED TO REPAY ANY  OF  THE  TUITION
 REIMBURSEMENT  RECEIVED  PRIOR  TO  SUCH  CHANGE  PROVIDED  THE  COST OF
 SERVICES THAT WOULD HAVE BEEN PROVIDED BY THE SCHOOL  DISTRICT  HAD  THE
 CHILD  BEEN ATTENDING PUBLIC SCHOOL IS THE SAME OR GREATER THAN THE COST
 OF THE SERVICES THAT WERE ACTUALLY PROVIDED TO THE STUDENT BY  THE  NON-
 PUBLIC  SCHOOL.  THE  REQUIREMENTS OF THIS PARAGRAPH SHALL ALSO APPLY TO
 ALL SETTLEMENTS THAT HAVE PREVIOUSLY BEEN ENTERED  INTO  AND  REMAIN  IN
 EFFECT.  IF THE CHILD'S PARENTS FAIL TO ATTEND THREE IEP MEETINGS SCHED-
 ULED  ON  REGULAR SCHOOL DAYS DURING THE SCHOOL YEAR, THE CHILD SHALL NO
 LONGER BE ABLE TO RECEIVE PENDANCY UNDER THIS SECTION.
   § 3. This act shall take effect January 1,  2022;  provided,  however,
 that the amendments to item (i) of clause (b) of subparagraph 3 of para-
 graph  b  of  subdivision 1 of section 4402 of the education law made by
 section one of this act shall be subject to the expiration and reversion
 of such paragraph pursuant to section 22 of chapter 352 of the  laws  of
 2005,  as amended, and subdivision d of section 27 of chapter 378 of the
 laws of 2007, as amended, when upon such date the provisions of  section
 one-a  of  this  act  shall  take  effect; and provided further that the
 amendments to paragraph a of subdivision 1 of section 4404 of the educa-
 tion law made by section two of this act shall be subject to the expira-
 tion and reversion of such subdivision and shall expire  and  be  deemed
 repealed therewith.

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  6576--A
 
                        2021-2022 Regular Sessions
 
                           I N  A S S E M B L Y
 
                              March 19, 2021
                                ___________
 
 Introduced  by  M.  of  A.  EICHENSTEIN -- read once and referred to the
   Committee on Education -- committee discharged, bill amended,  ordered
   reprinted as amended and recommitted to said committee
 
 AN ACT to amend the education law, in relation to pendency placements in
   a school district in a city having a population of one million or more

   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1.  Section 4404 of the education law is amended by  adding  a
 new subdivision 1-a to read as follows:
   1-A.  A.  NOTWITHSTANDING    ANY OTHER PROVISION OF LAW, RULE OR REGU-
 LATION TO THE CONTRARY, IN A SCHOOL DISTRICT IN A CITY  HAVING  A  POPU-
 LATION    OF   ONE MILLION   OR   MORE, THE PARENT OR PERSON IN PARENTAL
 RELATION SHALL BE ENTITLED TO THE PRESUMPTION THAT THE SCHOOL IDENTIFIED
 IN A SETTLEMENT AGREEMENT ENTERED ON OR AFTER THE EFFECTIVE DATE OF THIS
 SUBDIVISION IS THE STUDENT'S OPERATIVE PLACEMENT  FOR  THE  PURPOSES  OF
 PENDENCY  UNTIL  THERE  IS AN INTERVENING, PENDENCY-CHANGING EVENT (THAT
 IS, AN ACTUAL AGREEMENT OF THE PARTIES; AN  UNAPPEALED  DECISION  BY  AN
 IMPARTIAL  HEARING  OFFICER; A DECISION OF THE STATE REVIEW OFFICER THAT
 AGREES WITH THE PARENTS AS TO  THE  APPROPRIATENESS  OF  THEIR  PROPOSED
 CHANGE  IN  PLACEMENT;  OR A DETERMINATION BY A COURT ON APPEAL FROM THE
 DECISION OF A STATE REVIEW OFFICER) OR A PROGRAM OFFERED BY  THE  SCHOOL
 DISTRICT  AND  NOT  CHALLENGED  BY THE PARENT. EACH CHILD'S IEP SHALL BE
 REVIEWED  PERIODICALLY,  BUT  NOT  LESS  FREQUENTLY  THAN  ANNUALLY,  AS
 REQUIRED  BY  20  U.S.C. 1414(D)(4)(A)(I). PENDENCY PAYMENTS FOR TUITION
 SHALL BE MADE PROSPECTIVELY AND SHALL BE MADE FOR AMOUNTS NOT LESS  THAN
 TWO  MONTHS'  WORTH OF TUITION OR THE REMAINING BALANCE ON THE CONTRACT,
 WHICHEVER IS SMALLER, PROVIDED THAT  THE  INITIAL  TUITION  PAYMENT  MAY
 INCLUDE  RETROACTIVE  PAYMENTS.  PENDENCY  PAYMENTS,  AS PROVIDED FOR IN
 SUBDIVISION FOUR OF THIS SECTION, SHALL CONTINUE UNINTERRUPTED WHILE THE
 APPEAL IS PENDING. IF THE CHILD IS MOVED INTO A PROGRAM OFFERED  BY  THE
 SCHOOL  DISTRICT DURING THE SCHOOL YEAR, OR THE CHILD IS NO LONGER ENTI-
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD08863-05-1

 A. 6576--A                          2
 
 TLED TO RECEIVE ALL THE SERVICES THAT THE CHILD HAD BEEN RECEIVING  FROM
 THE  NON-PUBLIC  SCHOOL,  THE  CHILD'S  PARENTS SHALL NOT BE REQUIRED TO
 REPAY ANY OF THE TUITION REIMBURSEMENT RECEIVED PRIOR  TO  SUCH  CHANGE,
 PROVIDED  THE  COST  OF  SERVICES  THAT  WOULD HAVE BEEN PROVIDED BY THE
 SCHOOL DISTRICT HAD THE CHILD BEEN ATTENDING PUBLIC SCHOOL IS  THE  SAME
 OR  GREATER THAN THE COST OF THE SERVICES THAT WERE ACTUALLY PROVIDED TO
 THE STUDENT BY THE NON-PUBLIC SCHOOL.
   B. WHERE A CLAIM FOR TUITION FOR A SCHOOL YEAR COMMENCING IN TWO THOU-
 SAND NINETEEN OR EARLIER HAS BEEN FILED PURSUANT TO THIS SECTION  ON  OR
 BEFORE JUNE THIRTIETH, TWO THOUSAND TWENTY AND REMAINS PENDING AND TIME-
 LY,  THE  LOCAL EDUCATIONAL AGENCY OF A CITY HAVING A POPULATION OF OVER
 ONE MILLION SHALL, ON OR BEFORE SEPTEMBER FIRST,  TWO  THOUSAND  TWENTY-
 TWO,  MAKE ALL REASONABLE EFFORTS TO FINALIZE A SETTLEMENT OR INFORM THE
 PARENT OR PERSON IN PARENTAL RELATION, OR THEIR REPRESENTATIVE, THAT  IT
 HAS  NOT  BEEN  ABLE  TO  SETTLE  THE  CLAIM.  NOTHING IN THIS ACT SHALL
 PRECLUDE PARTIES FROM REACHING A SETTLEMENT AFTER SEPTEMBER  FIRST,  TWO
 THOUSAND  TWENTY-TWO.    ANY  SETTLEMENTS  FOR  TUITION, INCLUDING THOSE
 ALREADY SETTLED, SHALL INCLUDE A SCHEDULE FOR  PAYMENTS,  THE  FIRST  OF
 WHICH  SHALL BEGIN NO LATER THAN SIXTY DAYS AFTER THE LATTER OF THE DATE
 THE SETTLEMENT IS FULLY EXECUTED OR RECEIPT OF  DOCUMENTATION  NECESSARY
 FOR  PAYMENT, AND THE REMAINDER OF WHICH SHALL BE COMPLETED WITHIN SIXTY
 DAYS OF RECEIPT OF ANY DOCUMENTATION NECESSARY FOR PAYMENT.
   § 2. This act shall take effect January 1, 2022.