S T A T E O F N E W Y O R K
________________________________________________________________________
3259
2009-2010 Regular Sessions
I N A S S E M B L Y
January 23, 2009
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Introduced by M. of A. BENJAMIN -- read once and referred to the Commit-
tee on Education
AN ACT to amend the education law, in relation to establishing the
students with disabilities school choice act
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. The education law is amended by adding a new article 107 to
read as follows:
ARTICLE 107
STUDENTS WITH DISABILITIES SCHOOL CHOICE ACT
SECTION 5300. SHORT TITLE.
5301. DEFINITIONS.
5302. GENERAL PROVISIONS.
5303. RESPONSIBILITIES OF THE RESIDENT SCHOOL DISTRICT.
5304. RESPONSIBILITIES OF THE DEPARTMENT.
5305. ACCOUNTABILITY FOR PARTICIPATING SCHOOLS.
5306. RESPONSIBILITIES OF THE SCHOLARSHIP STUDENTS AND THEIR
PARENTS.
S 5300. SHORT TITLE. THIS ARTICLE SHALL BE KNOWN AND MAY BE CITED AS
THE "STUDENTS WITH DISABILITIES SCHOOL CHOICE ACT".
S 5301. DEFINITIONS. 1. "PROGRAM" MEANS THE SPECIAL NEEDS SCHOLARSHIP
PROGRAM.
2. "ELIGIBLE STUDENT" MEANS ANY ELEMENTARY OR SECONDARY STUDENT
ATTENDING PUBLIC SCHOOL IN THE STATE WITH AN INDIVIDUAL EDUCATION PLAN,
INCLUDING BUT NOT LIMITED TO STUDENTS WHO ARE MENTALLY HANDICAPPED,
SPEECH AND LANGUAGE IMPAIRED, DEAF OR HARD OF HEARING, VISUALLY
IMPAIRED, DUAL SENSORY IMPAIRED, PHYSICALLY IMPAIRED, EMOTIONALLY HAND-
ICAPPED, SPECIFIC LEARNING DISABLED, AUTISTIC, OR HOSPITALIZED OR HOME-
BOUND DUE TO ILLNESS OR DISABILITY.
3. "PARENT" INCLUDES A GUARDIAN, CUSTODIAN OR OTHER PERSON WITH
AUTHORITY TO ACT ON BEHALF OF THE CHILD.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD05795-01-9
A. 3259 2
4. "RESIDENT SCHOOL DISTRICT" MEANS THE PUBLIC SCHOOL DISTRICT IN
WHICH THE STUDENT RESIDES.
5. "DEPARTMENT" MEANS THE EDUCATION DEPARTMENT OF THE STATE OF NEW
YORK.
6. "PARTICIPATING SCHOOL" MEANS EITHER A PUBLIC SCHOOL OUTSIDE OF THE
RESIDENT SCHOOL DISTRICT OR ANY NON-PUBLIC SCHOOL THAT PROVIDES EDUCA-
TION TO ELEMENTARY AND/OR SECONDARY STUDENTS THAT HAS NOTIFIED THE
DEPARTMENT OF THEIR INTENTION TO PARTICIPATE IN THE PROGRAM AND COMPLY
WITH ITS REQUIREMENTS. PARTICIPATING SCHOOL SHALL ALSO INCLUDE
OUT-OF-STATE PRIVATE SCHOOLS THAT OFFER INNOVATIVE SERVICES UNAVAILABLE
IN THE STATE.
S 5302. GENERAL PROVISIONS. 1. ANY PARENT OF A PUBLIC SCHOOL SPECIAL
NEEDS STUDENT WHO IS DISSATISFIED WITH THE STUDENT'S PROGRESS SHALL
QUALIFY FOR A SCHOLARSHIP FROM THE STATE FOR THE CHILD TO ENROLL IN AND
ATTEND A NON-PUBLIC SCHOOL IF:
(A) THE SPECIAL NEEDS STUDENT HAS HAD AN INDIVIDUAL EDUCATION PLAN
WRITTEN IN ACCORDANCE WITH THE RULES OF THE DEPARTMENT; AND
(B) THE STUDENT HAS BEEN ACCEPTED FOR ADMISSION AT A PARTICIPATING
SCHOOL; AND
(C) THE PARENT HAS REQUESTED A SCHOLARSHIP FROM THE STATE BEFORE THE
DEADLINE ESTABLISHED BY THE DEPARTMENT.
2. THE DEPARTMENT SHALL INFORM THE RESIDENT SCHOOL DISTRICT THAT A
SPECIAL NEEDS STUDENT HAS REQUESTED A SPECIAL NEEDS SCHOLARSHIP. THE
RESIDENT SCHOOL DISTRICT SHALL WITHIN THREE BUSINESS DAYS PROVIDE THE
DEPARTMENT WITH A COPY OF THE STUDENT'S MOST CURRENT INDIVIDUAL EDUCA-
TION PLAN.
3. UPON RECEIPT OF THE SPECIAL NEEDS STUDENT'S REQUEST FOR A SCHOLAR-
SHIP, THE DEPARTMENT SHALL REVIEW THE INDIVIDUAL EDUCATION PLAN DRAFTED
BY THE STUDENT'S PUBLIC SCHOOL TO DETERMINE THE AMOUNT OF THE SCHOLAR-
SHIP. THE DEPARTMENT SHALL PROVIDE THE STUDENT'S PARENT WITH A TIMELY
WRITTEN EXPLANATION OF THEIR DETERMINATION FOR THE AMOUNT OF THE SCHOL-
ARSHIP.
4. THE MAXIMUM SCHOLARSHIP GRANTED AN ELIGIBLE STUDENT SHALL BE AN
AMOUNT EQUIVALENT TO THE COST OF THE EDUCATIONAL PROGRAM THAT WOULD HAVE
BEEN PROVIDED FOR THE STUDENT IN THE RESIDENT SCHOOL DISTRICT. ALTHOUGH
THE SCHOLARSHIP AMOUNT IS A FUNCTION OF A STUDENT'S INDIVIDUAL EDUCATION
PLAN, THE PARTICIPATING SCHOOL IS NOT REQUIRED TO ABIDE BY THE INDIVID-
UAL EDUCATION PLAN. THE PARENT AND THE PARTICIPATING SCHOOL WILL MUTUAL-
LY DETERMINE THE BEST SERVICES AND EDUCATIONAL PLAN FOR THE STUDENT.
5. THE AMOUNT OF THE SPECIAL NEEDS SCHOLARSHIP SHALL BE THE LESSER OF
THE AMOUNT CALCULATED IN SUBDIVISIONS THREE AND FOUR OF THIS SECTION, OR
THE AMOUNT OF THE PARTICIPATING SCHOOL'S ESTIMATED COSTS FOR SERVING THE
STUDENT. THE COSTS OF ANY ASSESSMENT BY THE PARTICIPATING SCHOOL OF THE
STUDENT'S SPECIAL NEEDS MAY BE INCLUDED IN THE SCHOLARSHIP AMOUNT.
6. PARTICIPATING STUDENTS SHALL BE COUNTED IN THE ENROLLMENT OF THEIR
RESIDENT SCHOOL DISTRICT. THE FUNDS NEEDED TO PROVIDE A SCHOLARSHIP
SHALL BE SUBTRACTED FROM THE STATE SCHOOL AID PAYABLE TO THE STUDENT'S
RESIDENT SCHOOL DISTRICT.
7. THE SPECIAL NEEDS SCHOLARSHIP SHALL REMAIN IN FORCE UNTIL THE
STUDENT RETURNS TO A PUBLIC SCHOOL OR GRADUATES FROM HIGH SCHOOL OR
REACHES THEIR TWENTY-FIRST BIRTHDAY, WHICHEVER COMES FIRST.
8. AT ANY TIME, THE STUDENT'S PARENT MAY REMOVE THE STUDENT FROM THE
PARTICIPATING SCHOOL AND PLACE THE STUDENT IN ANOTHER PARTICIPATING
SCHOOL OR IN A PUBLIC SCHOOL.
S 5303. RESPONSIBILITIES OF THE RESIDENT SCHOOL DISTRICT. 1. A RESI-
DENT SCHOOL DISTRICT SHALL ANNUALLY NOTIFY THE PARENTS OF A SPECIAL
A. 3259 3
NEEDS STUDENT OF THE SPECIAL NEEDS SCHOLARSHIP PROGRAM AND OFFER THAT
STUDENT'S PARENT AN OPPORTUNITY TO ENROLL THE STUDENT IN A PARTICIPATING
SCHOOL OF THEIR CHOICE.
2. THE RESIDENT SCHOOL DISTRICT SHALL PROVIDE A PARTICIPATING SCHOOL
THAT HAS ADMITTED AN ELIGIBLE STUDENT WITH A COMPLETE COPY OF THE
STUDENT'S SCHOOL RECORDS WHILE COMPLYING WITH THE FAMILY EDUCATIONAL
RIGHTS AND PRIVACY ACT OF 1974.
3. THE RESIDENT SCHOOL DISTRICT SHALL PROVIDE TRANSPORTATION FOR AN
ELIGIBLE STUDENT TO AND FROM THE PARTICIPATING SCHOOL UNDER THE SAME
CONDITIONS AS THE RESIDENT SCHOOL DISTRICT IS REQUIRED TO PROVIDE TRANS-
PORTATION FOR OTHER RESIDENT STUDENTS TO NON-PUBLIC SCHOOLS AS PER
CURRENT LAW. THE RESIDENT SCHOOL DISTRICT WILL QUALIFY FOR STATE TRANS-
PORTATION AID FOR EACH STUDENT SO TRANSPORTED.
4. IF THE PARENT OF AN ELIGIBLE STUDENT PARTICIPATING IN THIS PROGRAM
REQUESTS THAT THE STUDENT TAKE THE STATEWIDE ASSESSMENTS, THE RESIDENT
SCHOOL DISTRICT SHALL PROVIDE LOCATIONS AND TIMES FOR THE STUDENT TO
TAKE ALL STATEWIDE ASSESSMENTS IF THEY ARE NOT OFFERED AT THE STUDENT'S
PARTICIPATING SCHOOL.
S 5304. RESPONSIBILITIES OF THE DEPARTMENT. 1. THE DEPARTMENT SHALL
ADOPT RULES AND PROCEDURES REGARDING:
(A) THE ELIGIBILITY AND PARTICIPATION OF NON-PUBLIC SCHOOLS, INCLUDING
TIMELINES THAT WILL MAXIMIZE STUDENT AND PUBLIC AND NON-PUBLIC SCHOOL
PARTICIPATION;
(B) THE CALCULATION AND DISTRIBUTION OF SCHOLARSHIPS TO ELIGIBLE
STUDENTS AND PARTICIPATING SCHOOLS; AND
(C) THE APPLICATION AND APPROVAL PROCEDURES FOR ELIGIBLE STUDENTS AND
PARTICIPATING SCHOOLS.
2. NO LIABILITY SHALL ARISE ON THE PART OF THE DEPARTMENT OR THE STATE
BASED ON THE AWARD OR USE OF A SPECIAL NEEDS SCHOLARSHIP.
3. THE DEPARTMENT MAY BAR A SCHOOL FROM PARTICIPATION IN THE PROGRAM
IF THE DEPARTMENT ESTABLISHES THAT THE PARTICIPATING SCHOOL HAS:
(A) INTENTIONALLY AND SUBSTANTIALLY MISREPRESENTED INFORMATION
REQUIRED UNDER SECTION FIVE THOUSAND THREE HUNDRED FIVE OF THIS ARTICLE;
OR
(B) FAILED TO REFUND TO THE STATE ANY SCHOLARSHIP OVERPAYMENTS IN A
TIMELY MANNER.
4. IF THE DEPARTMENT DECIDES TO BAR A PARTICIPATING SCHOOL FROM THE
PROGRAM, IT SHALL NOTIFY ELIGIBLE STUDENTS AND THEIR PARENTS OF THIS
DECISION AS QUICKLY AS POSSIBLE.
S 5305. ACCOUNTABILITY FOR PARTICIPATING SCHOOLS. TO BE ELIGIBLE TO
PARTICIPATE IN THE SPECIAL NEEDS SCHOLARSHIP PROGRAM, A NON-PUBLIC
SCHOOL MUST OPERATE IN THIS STATE AND DEMONSTRATE:
1. ADMINISTRATIVE ACCOUNTABILITY. TO ENSURE THAT STUDENTS ARE TREATED
FAIRLY AND KEPT SAFE, ALL PARTICIPATING SCHOOLS SHALL:
(A) COMPLY WITH ALL HEALTH AND SAFETY LAWS OR CODES THAT APPLY TO
NON-PUBLIC SCHOOLS; AND
(B) HOLD A VALID OCCUPANCY PERMIT IF REQUIRED BY THEIR MUNICIPALITY;
AND
(C) CERTIFY THAT THEY WILL NOT DISCRIMINATE IN ADMISSIONS ON THE BASIS
OF RACE, COLOR, NATIONAL ORIGIN, OR RELIGION; AND
(D) COMPLY WITH ALL STATE LAWS THAT APPLY TO NON-PUBLIC SCHOOLS
REGARDING CRIMINAL BACKGROUND CHECKS FOR EMPLOYEES AND EXCLUDE FROM
EMPLOYMENT ANY PEOPLE NOT PERMITTED BY STATE LAW TO WORK IN A NON-PUBLIC
SCHOOL.
2. FINANCIAL ACCOUNTABILITY. TO ENSURE THAT PUBLIC FUNDS ARE SPENT
APPROPRIATELY, ALL PARTICIPATING SCHOOLS SHALL:
A. 3259 4
(A) DEMONSTRATE THEIR FINANCIAL ACCOUNTABILITY BY:
(I) SUBMITTING A FINANCIAL INFORMATION REPORT FOR THE SCHOOL THAT
COMPLIES WITH UNIFORM FINANCIAL ACCOUNTING STANDARDS ESTABLISHED BY THE
DEPARTMENT AND CONDUCTED BY A CERTIFIED PUBLIC ACCOUNTANT; AND
(II) HAVING THE AUDITOR CERTIFY THE REPORT IS FREE OF MATERIAL
MISSTATEMENTS. THE AUDITOR'S REPORT SHALL BE LIMITED IN SCOPE TO THOSE
RECORDS THAT ARE NECESSARY FOR THE DEPARTMENT TO MAKE PAYMENTS TO
SCHOOLS FOR SCHOLARSHIPS.
(B) DEMONSTRATE THEIR FINANCIAL VIABILITY BY SHOWING THEY CAN PAY ANY
FUNDS OWED THE STATE, IF THEY ARE TO RECEIVE FIFTY THOUSAND DOLLARS OR
MORE DURING THE SCHOOL YEAR, BY:
(I) FILING WITH THE DEPARTMENT PRIOR TO THE START OF THE SCHOOL YEAR A
SURETY BOND PAYABLE TO THE STATE IN AN AMOUNT EQUAL TO THE AGGREGATE
AMOUNT OF THE SPECIAL NEEDS SCHOLARSHIPS EXPECTED TO BE PAID DURING THE
SCHOOL YEAR TO STUDENTS ADMITTED TO THE PARTICIPATING SCHOOL; OR
(II) FILING WITH THE DEPARTMENT PRIOR TO THE START OF THE SCHOOL YEAR
FINANCIAL INFORMATION THAT DEMONSTRATES THE SCHOOL HAS THE ABILITY TO
PAY AN AGGREGATE AMOUNT EQUAL TO THE AMOUNT OF THE SPECIAL NEEDS SCHOL-
ARSHIPS EXPECTED TO BE PAID DURING THE SCHOOL YEAR TO STUDENTS ADMITTED
TO THE PARTICIPATING SCHOOL.
3. ACADEMIC ACCOUNTABILITY. TO ENSURE THAT SCHOOLS PROVIDE ACADEMIC
ACCOUNTABILITY TO PARENTS OF THE STUDENTS IN THE PROGRAM, ALL PARTIC-
IPATING SCHOOLS SHALL REGULARLY REPORT TO THE PARENT ON THE STUDENT'S
PROGRESS.
4. PARTICIPATING SCHOOL AUTONOMY. A PARTICIPATING SCHOOL IS AUTONOMOUS
AND NOT AN AGENT OF THE STATE OR FEDERAL GOVERNMENT THEREFORE:
(A) THE DEPARTMENT OR ANY OTHER STATE AGENCY MAY NOT IN ANY WAY REGU-
LATE THE EDUCATIONAL PROGRAM OF A PARTICIPATING SCHOOL THAT ACCEPTS A
SPECIAL NEEDS SCHOLARSHIP; AND
(B) THE CREATION OF THE SPECIAL NEEDS SCHOLARSHIP PROGRAM DOES NOT
EXPAND THE REGULATORY AUTHORITY OF THE STATE, ITS OFFICERS OR ANY SCHOOL
DISTRICT TO IMPOSE ANY ADDITIONAL REGULATION OF NON-PUBLIC SCHOOLS
BEYOND THOSE REASONABLY NECESSARY TO ENFORCE THE REQUIREMENTS OF THE
PROGRAM; AND
(C) PARTICIPATING SCHOOLS SHALL BE GIVEN THE MAXIMUM FREEDOM TO
PROVIDE FOR THE EDUCATIONAL NEEDS OF THEIR STUDENTS WITHOUT GOVERNMENTAL
CONTROL.
S 5306. RESPONSIBILITIES OF THE SCHOLARSHIP STUDENTS AND THEIR
PARENTS. 1. IT SHALL BE THE RESPONSIBILITY OF A PARENT TO SELECT THEIR
CHILD'S SCHOOL, APPLY FOR ADMISSION, AND APPLY FOR A SPECIAL NEEDS SCHO-
LARSHIP.
2. ANY STUDENT PARTICIPATING IN THE PROGRAM MUST COMPLY FULLY WITH A
PARTICIPATING SCHOOL'S WRITTEN CODE OF CONDUCT AND SHALL REMAIN IN
ATTENDANCE THROUGHOUT THE SCHOOL YEAR, UNLESS EXCUSED BY THE SCHOOL FOR
ILLNESS OR OTHER GOOD CAUSE. HOWEVER, A PARENT MAY TRANSFER AN ELIGIBLE
STUDENT TO ANOTHER PARTICIPATING SCHOOL AT ANY TIME. THE SCHOLARSHIP
AMOUNT SHALL BE PRORATED BETWEEN PARTICIPATING SCHOOLS ACCORDING TO THE
PERIOD OF ATTENDANCE AT EACH SCHOOL.
3. A PARENT'S DECISION FOR THEIR STUDENT TO PARTICIPATE IN THE PROGRAM
CONSTITUTES A NON-PUBLIC PLACEMENT FOR PURPOSES OF THE INDIVIDUALS WITH
DISABILITIES EDUCATION ACT.
S 2. This act shall take effect on the first of September after it
shall have become a law.