S T A T E   O F   N E W   Y O R K
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                                  8398

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                              May 19, 2009
                               ___________

Introduced  by  M.  of  A.  NOLAN  -- (at request of the State Education
  Department) -- read once and referred to the Committee on Education

AN ACT to amend the education law and the public health law, in relation
  to the provision of special education programs and services and imple-
  mentation of  the  federal  individuals  with  disabilities  education
  improvement  act  of  2004;  to amend chapter 352 of the laws of 2005,
  amending the education law relating to implementation of  the  federal
  individuals  with  disabilities  education improvement act of 2004, in
  relation to making certain  provisions  thereof  permanent;  to  amend
  chapter  378  of the laws of 2007, amending the education law relating
  to implementation of the federal individuals with disabilities  educa-
  tion  improvement  act  of  2004, in relation to making the provisions
  thereof permanent; to repeal subdivision 17 of  section  1950  of  the
  education  law relating to development of special education facilities
  plans by boards of cooperative educational  services,  and  to  repeal
  subdivision  (a)  of  section  8  of  chapter 430 of the laws of 2006,
  amending the education law relating to implementation of  the  federal
  individuals  with  disabilities  education improvement act of 2004, in
  relation to making the provisions thereof permanent

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.  Subdivision  17  of  section 1950 of the education law is
REPEALED.
  S 2.  Section 2215 of the education law is amended  by  adding  a  new
subdivision 17 to read as follows:
  17.  TO  DETERMINE  THE ADEQUACY AND APPROPRIATENESS OF THE FACILITIES
SPACE AVAILABLE TO HOUSE SPECIAL EDUCATION PROGRAMS  IN  THE  GEOGRAPHIC
AREA SERVED BY THE BOARD OF COOPERATIVE EDUCATIONAL SERVICES, CONSISTENT
WITH THE LEAST RESTRICTIVE ENVIRONMENT REQUIREMENT.
  S  3. Subdivision 1 of section 2856 of the education law is amended by
adding a new paragraph (d) to read as follows:

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD11770-03-9
              

A. 8398                             2

  (D) THE STATE AID ATTRIBUTABLE TO A STUDENT WITH A DISABILITY  ATTEND-
ING  A CHARTER SCHOOL AND PAYABLE IN PROPORTION TO THE LEVEL OF SERVICES
THAT THE CHARTER SCHOOL PROVIDES IN  ACCORDANCE  WITH  THIS  SUBDIVISION
SHALL BE COMPUTED IN THE MANNER PRESCRIBED IN THIS PARAGRAPH.
  (I) DEFINITIONS. FOR THE PURPOSE OF THIS SUBDIVISION:
  A.  "PUPIL  WITH A DISABILITY" SHALL MEAN A PUPIL WITH A DISABILITY AS
DEFINED PURSUANT TO CLAUSE ONE OF PARAGRAPH  I  OF  SUBDIVISION  ONE  OF
SECTION THIRTY-SIX HUNDRED TWO OF THIS CHAPTER.
  B.  "PERIOD  OF  ENROLLMENT"  SHALL MEAN THAT PERIOD COMMENCING ON THE
FIRST DAY OF THE SCHOOL YEAR THAT A PUPIL IS ENROLLED IN  AND  IS  PHYS-
ICALLY  PRESENT  AT,  OR  LEGALLY ABSENT FROM, AN EDUCATIONAL PROGRAM OR
SERVICE OF A CHARTER SCHOOL AND ENDING ON THE LAST  DAY  OF  THE  SCHOOL
YEAR THAT SUCH PUPIL IS SO ENROLLED AND PHYSICALLY PRESENT AT, OR LEGAL-
LY ABSENT FROM, SUCH PROGRAM OR SERVICE.
  C.  "ENROLLMENT"  FOR  EACH  CHARTER  SCHOOL  STUDENT  SHALL  MEAN THE
QUOTIENT, CALCULATED TO THREE DECIMALS WITHOUT ROUNDING,  OBTAINED  WHEN
THE TOTAL NUMBER OF WEEKS OF THE PERIOD OF ENROLLMENT OF SUCH STUDENT IS
DIVIDED  BY  THE  TOTAL  NUMBER  OF WEEKS IN THE FULL SCHOOL YEAR OF THE
EDUCATIONAL PROGRAM OR SERVICE OF THE CHARTER SCHOOL. FOR  THE  PURPOSES
OF  THIS  SECTION,  THREE CONSECUTIVE DAYS OF ENROLLMENT WITHIN THE SAME
WEEK AND WITHIN THE SAME MONTH SHALL BE THE EQUIVALENT OF  ONE  WEEK  OF
ENROLLMENT,  PROVIDED  THAT NO MORE THAN FOUR WEEKS OF ENROLLMENT MAY BE
COUNTED IN ANY CALENDAR MONTH.
  D. "LEVELS OF SERVICE" SHALL  MEAN  THE  CATEGORIES  OF  PROGRAMS  FOR
STUDENTS WITH DISABILITIES SPECIFIED IN CLAUSES (I) AND (II) OF SUBPARA-
GRAPH  THREE  AND  SUBPARAGRAPH SIX OF PARAGRAPH I OF SUBDIVISION ONE OF
SECTION THIRTY-SIX HUNDRED TWO OF THIS CHAPTER THAT ARE PROVIDED BY  THE
CHARTER SCHOOL DIRECTLY OR INDIRECTLY.
  E.  "WEIGHTED  PUPIL  WITH A DISABILITY" SHALL MEAN THE PRODUCT OF THE
ENROLLMENT FOR EACH CHARTER SCHOOL STUDENT WITH A DISABILITY  MULTIPLIED
BY  THE  SPECIAL SERVICES WEIGHTING WHERE THE SPECIAL SERVICES WEIGHTING
FOR ANY PUPIL WITH A LEVEL OF SERVICE SPECIFIED IN CLAUSE (I) OF SUBPAR-
AGRAPH THREE OF PARAGRAPH I OF SUBDIVISION  ONE  OF  SECTION  THIRTY-SIX
HUNDRED TWO OF THIS CHAPTER SHALL BE ONE HUNDRED SIXTY-FIVE PERCENT, AND
FOR  ANY  PUPIL  WITH  A  LEVEL  OF  SERVICE SPECIFIED IN CLAUSE (II) OF
SUBPARAGRAPH THREE OF PARAGRAPH I OF SUBDIVISION ONE OF SECTION  THIRTY-
SIX  HUNDRED  TWO OF THIS CHAPTER SHALL BE NINETY PERCENT. THE WEIGHTING
FOR A PUPIL WITH A LEVEL OF SERVICE THAT  MEETS  THE  DEFINITION  OF  AN
INTEGRATED  SETTINGS WEIGHTED PUPILS WITH DISABILITIES AS DEFINED PURSU-
ANT TO SUBPARAGRAPH SIX OF PARAGRAPH I OF  SUBDIVISION  ONE  OF  SECTION
THIRTY-SIX  HUNDRED  TWO  OF THIS CHAPTER SHALL BE INCREASED BY AN ADDI-
TIONAL FIFTY PERCENT.
  F. "ADJUSTED EXPENSE PER PUPIL WITH A DISABILITY" SHALL MEAN THE PROD-
UCT OF (I) THE TWO THOUSAND FOUR--TWO THOUSAND FIVE  APPROVED  OPERATING
EXPENSE  PER PUPIL FOR TWO THOUSAND SIX--TWO THOUSAND SEVEN AID COMPUTED
BY THE COMMISSIONER IN ACCORDANCE WITH PARAGRAPH F OF SUBDIVISION ONE OF
SECTION THIRTY-SIX HUNDRED TWO OF THIS CHAPTER AND BASED ON DATA USED BY
THE COMMISSIONER FOR THE PURPOSES OF PRODUCING  A  SCHOOL  AID  COMPUTER
LISTING  IN  SUPPORT  OF THE ENACTED BUDGET REQUEST FOR THE TWO THOUSAND
SEVEN--TWO THOUSAND EIGHT SCHOOL YEAR AND ENTITLED "SA070-8",  PROVIDED,
HOWEVER, THAT SUCH EXPENSE PER PUPIL SHALL BE NOT LESS THAN TWO THOUSAND
DOLLARS  AND  NOT  MORE  THAN  NINE  THOUSAND TWO HUNDRED FIFTY DOLLARS,
MULTIPLIED BY (II) FOR THE TWO THOUSAND NINE--TWO THOUSAND TEN  AND  TWO
THOUSAND  TEN--TWO THOUSAND ELEVEN SCHOOL YEARS, ONE AND ONE HUNDRED TWO
ONE-THOUSANDTHS, AND FOR THE TWO THOUSAND  ELEVEN--TWO  THOUSAND  TWELVE
SCHOOL  YEAR  AND THEREAFTER, THE SUM OF ONE AND THE PERCENTAGE INCREASE

A. 8398                             3

IN THE CONSUMER PRICE INDEX FOR THE  CURRENT  YEAR  OVER  SUCH  CONSUMER
PRICE INDEX FOR THE TWO THOUSAND SIX--TWO THOUSAND SEVEN SCHOOL YEAR, AS
COMPUTED  PURSUANT TO SUBPARAGRAPH II OF PARAGRAPH C OF SUBDIVISION FOUR
OF SECTION THIRTY-SIX HUNDRED TWO OF THIS CHAPTER.
  G.  "EXCESS  COST AID RATIO FOR FOUNDATION AID ATTRIBUTABLE TO A PUPIL
WITH A DISABILITY" SHALL MEAN THE EXCESS COST  AID  RATIO  FOR  THE  TWO
THOUSAND SIX--TWO THOUSAND SEVEN SCHOOL YEAR COMPUTED BY THE COMMISSION-
ER  IN  ACCORDANCE  WITH  SUBPARAGRAPH TWO OF PARAGRAPH A OF SUBDIVISION
FIVE OF SECTION THIRTY-SIX HUNDRED TWO OF THIS CHAPTER AND BASED ON DATA
USED BY THE COMMISSIONER FOR THE PURPOSES  OF  PRODUCING  A  SCHOOL  AID
COMPUTER  LISTING  IN  SUPPORT OF THE ENACTED BUDGET REQUEST FOR THE TWO
THOUSAND SEVEN--TWO THOUSAND EIGHT SCHOOL YEAR AND ENTITLED "SA070-8".
  (II) EXCESS COST AID PER PUPIL SHALL EQUAL THE PRODUCT OF  THE  EXCESS
COST AID RATIO AND THE ADJUSTED EXPENSE PER PUPIL WITH A DISABILITY.
  (III)  FOUNDATION  AID ATTRIBUTABLE TO A PUPIL WITH A DISABILITY SHALL
EQUAL THE PRODUCT OF THE EXCESS COST AID  PER  PUPIL  AND  THE  WEIGHTED
PUPIL WITH A DISABILITY.
  (IV)  HIGH COST AID ATTRIBUTABLE TO A PUPIL WITH A DISABILITY, IF ANY,
SHALL BE COMPUTED PURSUANT TO SUBDIVISION  FIVE  OF  SECTION  THIRTY-SIX
HUNDRED TWO OF THIS CHAPTER.
  (V) SUPPLEMENTAL PUBLIC EXCESS COST AID ATTRIBUTABLE TO A PUPIL WITH A
DISABILITY SHALL BE EQUAL TO THE POSITIVE QUOTIENT, IF ANY, OF THE TOTAL
AID  APPORTIONED  TO  THE  DISTRICT  PURSUANT  TO  SUBDIVISION FIVE-A OF
SECTION THIRTY-SIX HUNDRED TWO OF THIS CHAPTER DIVIDED BY THE NUMBER  OF
TOTAL  UNWEIGHTED  PUPILS  WITH DISABILITIES IN THE DISTRICT IN THE BASE
YEAR.
  (VI) THE STATE AID ATTRIBUTABLE TO A STUDENT WITH A  DISABILITY  SHALL
EQUAL THE SUM OF THE FOUNDATION AID ATTRIBUTABLE TO A PUPIL WITH A DISA-
BILITY,  THE  HIGH  COST  AID ATTRIBUTABLE TO THE PUPIL, AND THE SUPPLE-
MENTAL PUBLIC COST AID ATTRIBUTABLE TO THE PUPIL.
  S 4. Paragraph a of subdivision 1 and paragraph a and  subparagraph  1
of  paragraph b of subdivision 2 of section 3602-c of the education law,
paragraph a of subdivision 1 as amended by chapter 474 of  the  laws  of
2004,  paragraph a and subparagraph 1 of paragraph b of subdivision 2 as
amended by chapter 378 of the laws of 2007, are amended and  subdivision
2 is amended by adding a new paragraph e to read as follows:
  a.  "Services"  shall  mean instruction in the areas of gifted pupils,
career education and education for students with disabilities, and coun-
seling, psychological and social work services related to such  instruc-
tion  provided  during  the regular school year for pupils enrolled in a
nonpublic school located  in  a  school  district,  provided  that  such
instruction  is  given  to pupils enrolled in the public schools of such
district. SUCH TERM SHALL ALSO INCLUDE EDUCATION FOR STUDENTS WITH DISA-
BILITIES PROVIDED IN JULY AND AUGUST IN ACCORDANCE WITH PARAGRAPH  E  OF
SUBDIVISION TWO OF THIS SECTION.
  a.  Boards  of  education  of  all school districts of the state shall
furnish services to students who are residents of  this  state  and  who
attend  nonpublic  schools  located  in  such school districts, upon the
written request of the parent or person in parental relation of any such
student. Such a request for  career  education  or  services  to  gifted
students  shall  be  filed  with  the  board  of education of the school
district in which the parent or  person  in  parental  relation  of  the
student  resides on or before the first day of June preceding the school
year for which the request  is  made.  In  the  case  of  education  for
students with disabilities, such a request shall be filed with the trus-
tees  or  board  of  education  of the school district of location on or

A. 8398                             4

before the first of [June] APRIL preceding the school year for which the
request is made[, or by July first, two thousand seven for the two thou-
sand seven--two thousand eight school year only,] FOR THOSE STUDENTS FOR
WHOM  AN  INDIVIDUALIZED  EDUCATIONAL  SERVICE PROGRAM WAS DEVELOPED AND
IMPLEMENTED PURSUANT TO THIS SECTION PRIOR  TO  SUCH  DATE,  AND  ON  OR
BEFORE THE FIRST OF JUNE PRECEDING THE SCHOOL YEAR FOR WHICH THE REQUEST
IS  MADE  FOR  THOSE  STUDENTS WHO WILL BE FIRST RECEIVING EDUCATION FOR
STUDENTS WITH DISABILITIES PURSUANT TO THIS SECTION IN THE  SCHOOL  YEAR
FOR  WHICH THE REQUEST IS MADE OR FOR WHOM AN INDIVIDUALIZED EDUCATIONAL
SERVICE PROGRAM IS FIRST DEVELOPED AND IMPLEMENTED  ON  OR  AFTER  APRIL
FIRST  AND  ON  OR  BEFORE  JUNE FIRST; provided that where a student is
first identified as a student with a disability after the first  day  of
June preceding the school year for which the request is made, [or thirty
days  after  the chapter of the laws of two thousand seven which amended
this paragraph, takes effect where applicable, and prior  to  the  first
day of April of such current school year,] such request shall be submit-
ted within thirty days after AN INDIVIDUALIZED EDUCATION SERVICE PROGRAM
IS  DEVELOPED  FOR such student [is first identified. For students first
identified after March first  of  the  current  school  year,  any  such
request  for  education  for  students  with disabilities in the current
school year that is submitted on or after April first  of  such  current
school  year,  shall be deemed a timely request for such services in the
following school year].
  (1) For the purpose of obtaining education for students with disabili-
ties, as defined in paragraph d of subdivision one of this section, such
request shall be reviewed by the committee on special education  of  the
school  district  of  location,  which  shall  develop an individualized
education service program for the student based on the  student's  indi-
vidual  needs  in the same manner and with the same contents as an indi-
vidualized education program,  EXCEPT  AS  OTHERWISE  PROVIDED  IN  THIS
SUBPARAGRAPH.  The  committee  on  special  education  shall assure that
special education programs and services are made available  to  students
with  disabilities attending nonpublic schools located within the school
district on  an  equitable  basis,  as  compared  to  special  education
programs  and  services  provided  to  other  students with disabilities
attending  public  or  nonpublic  schools  located  within  the   school
district,  EXCEPT  THAT THERE SHALL BE NO ENTITLEMENT UNDER THIS SECTION
TO THE PROVISION OF A SPECIAL CLASS OR INTEGRATED CO-TEACHING  SERVICES,
AS SUCH TERMS ARE DEFINED IN THE REGULATIONS OF THE COMMISSIONER, BY THE
SCHOOL  DISTRICT  OF LOCATION FOR ALL OR PART OF THE SCHOOL DAY.  Review
of the recommendation of the  committee  on  special  education  may  be
obtained  by  the  parent  or  person  in parental relation of the pupil
pursuant to the provisions of section forty-four hundred  four  of  this
chapter; PROVIDED THAT A DUE PROCESS COMPLAINT, OTHER THAN A DUE PROCESS
COMPLAINT  RELATING TO CHILD FIND REQUIREMENTS BROUGHT PURSUANT TO PARA-
GRAPH C OF THIS SUBDIVISION, SUBMITTED ON OR AFTER SEPTEMBER FIRST,  TWO
THOUSAND  NINE  SHALL  BE  SUBMITTED  TO  MEDIATION  PURSUANT TO SECTION
FORTY-FOUR HUNDRED FOUR-A OF THIS CHAPTER AND  AT  LEAST  ONE  MEDIATION
SESSION  SHALL  BE  HELD  PRIOR  TO  MAKING  A  REQUEST FOR AN IMPARTIAL
HEARING.
  E. A NONPUBLIC SCHOOL STUDENT WHOSE DISABILITY  IS  SEVERE  ENOUGH  TO
EXHIBIT  THE NEED FOR A STRUCTURED LEARNING ENVIRONMENT OF TWELVE MONTHS
DURATION TO MAINTAIN DEVELOPMENTAL LEVELS SHALL BE ELIGIBLE  TO  RECEIVE
SPECIAL EDUCATION PROGRAMS AND SERVICES IN JULY AND AUGUST IN ACCORDANCE
WITH  THE  INDIVIDUALIZED  EDUCATION  SERVICE  PROGRAM  DEVELOPED BY THE
COMMITTEE ON SPECIAL EDUCATION OF THE SCHOOL DISTRICT  OF  LOCATION  AND

A. 8398                             5

THE  PROVISIONS  OF  SECTION  FORTY-FOUR  HUNDRED EIGHT OF THIS CHAPTER.
PROVIDED, HOWEVER, THAT A NONPUBLIC SCHOOL STUDENT SHALL NOT BE ENTITLED
PURSUANT TO THIS SECTION TO PLACEMENT IN A SPECIAL CLASS  OR  INTEGRATED
CO-TEACHING  SERVICES,  AS  SUCH TERMS ARE DEFINED IN THE REGULATIONS OF
THE  COMMISSIONER,  IN  JULY  AND  AUGUST.  NOTWITHSTANDING  ANY   OTHER
PROVISION  OF LAW TO THE CONTRARY, THE SCHOOL DISTRICT OF LOCATION SHALL
BE ELIGIBLE FOR STATE AID FOR  SUCH  SERVICES  EXCLUSIVELY  PURSUANT  TO
SECTION FORTY-FOUR HUNDRED EIGHT OF THIS CHAPTER.
  S  5. Subdivision 7 of section 3602-c of the education law, as amended
by chapter 378 of the laws of 2007, is amended to read as follows:
  7. a. Boards of education of districts providing career education  and
gifted  education services to non-resident students shall be entitled to
recover tuition from the district  of  residence  of  such  students  in
accordance with a formula promulgated by the commissioner by regulation.
  b. In the case of the education for students with disabilities who are
residents  of New York, a school district of location providing services
to non-resident students shall be entitled to recover costs of services,
costs of evaluation, and costs of committee on special education  admin-
istration  directly  from  the  district  of residence of the student if
consent of the parent or person in  parental  relation  is  obtained  to
release  of  personally identifiable information concerning their child.
If such consent is not obtained, the school district of  location  shall
submit  to the commissioner, in a form prescribed by the commissioner, a
claim for costs of services, evaluation costs, and committee on  special
education   administrative  costs  that  includes  the  address  of  the
student's permanent residence, including the school  district  of  resi-
dence, and a certification by officials of the nonpublic school attended
by  the  student  that  such  address  is  the address of record of such
student. Upon certification by the commissioner of the  amount  of  such
claim,  the  state  comptroller  shall deduct such amount from any state
funds which become due to such school district of residence.
  c. The amount charged by the school district of location for services,
evaluation[, eligible due process costs] and committee on special educa-
tion administrative costs shall not exceed the actual cost to the school
district of location, after deducting any costs  paid  with  federal  or
state  funds.  The  commissioner  shall  adopt regulations prescribing a
dispute resolution mechanism that will be available to a school district
of residence where such district disagrees with the amount of tuition or
costs charged by the school district of location.
  D. THE COMMISSIONER SHALL ESTABLISH REGIONAL  RATE  METHODOLOGIES  FOR
COMPUTING  REGIONAL  RATES  TO  DETERMINE  ACTUAL  COSTS FOR EACH OF THE
FOLLOWING CATEGORIES OF COSTS: (I) COSTS OF SERVICES,  (II)  EVALUATIONS
AND  (III)  SPECIAL  EDUCATION  ADMINISTRATION.  THE  SCHOOL DISTRICT OF
LOCATION MAY ELECT TO USE ANY SUCH REGIONAL RATE METHODOLOGIES IN EFFECT
FOR THE CURRENT SCHOOL  YEAR  FOR  ALL  NONRESIDENT  STUDENTS  RECEIVING
SERVICES PURSUANT TO SUBDIVISION TWO OF THIS SECTION IN SUCH SCHOOL YEAR
OR  MAY  OPT  TO COMPUTE ACTUAL COSTS ON AN INDIVIDUAL STUDENT BASIS. IF
SUCH SCHOOL DISTRICT ELECTS TO USE REGIONAL RATES FOR SERVICES, IT SHALL
USE ALL REGIONAL RATES THEN IN EFFECT FOR BILLING SERVICES FOR ALL  SUCH
NONRESIDENT  STUDENTS AND IF SUCH SCHOOL DISTRICT ELECTS TO USE REGIONAL
RATES FOR BILLING EVALUATION OR SPECIAL EDUCATION ADMINISTRATION  COSTS,
IT SHALL USE SUCH RATES FOR BILLING FOR SUCH COSTS FOR ALL SUCH NONRESI-
DENT  STUDENTS.  THE  SCHOOL DISTRICT OF LOCATION MAY, HOWEVER, ELECT TO
USE REGIONAL RATES FOR ONE OR MORE CATEGORIES OF COSTS, AND NOT FOR  THE
OTHER CATEGORIES.

A. 8398                             6

  E.  NO  CLAIM  SHALL BE PAYABLE PURSUANT THIS SUBDIVISION UNLESS IT IS
SUBMITTED TO THE SCHOOL DISTRICT OF RESIDENCE, OR THE COMMISSIONER WHERE
APPLICABLE, WITHIN ONE YEAR OF THE END OF THE SCHOOL YEAR IN  WHICH  THE
COSTS  WERE INCURRED, OR WITHIN SIXTY DAYS OF THE EFFECTIVE DATE OF THIS
PARAGRAPH, WHICHEVER IS LATER.
  S  6.  Paragraph  a  of subdivision 2 of section 4402 of the education
law, as amended by chapter 243 of the laws of 1989, is amended  to  read
as follows:
  a. The board of education or trustees of each school district shall be
required  to  furnish  suitable  educational opportunities for [children
with handicapping conditions] STUDENTS WITH DISABILITIES by one  of  the
special  services  or  programs  listed  in  subdivision  two of section
forty-four hundred one. The need of the individual [child] STUDENT shall
determine which of such services shall be rendered. Each district  shall
provide  to  the  maximum  extent  appropriate such services in a manner
which enables [children  with  handicapping  conditions]  STUDENTS  WITH
DISABILITIES to participate in regular education services when appropri-
ate.  Such services or programs shall be furnished between the months of
September and June of each year, except that for  the  nineteen  hundred
eighty-seven--eighty-eight  school  year and thereafter, with respect to
the students whose [handicapping  conditions]  DISABILITIES  are  severe
enough  to  exhibit  the  need  for a structured learning environment of
twelve months duration to maintain developmental levels,  the  board  of
education or trustees of each school district upon the recommendation of
the  committee  on  special  education  [and, in the first instance, the
consent of the  parent]  shall  also  provide,  either  directly  or  by
contract,  for the provision of special services and programs as defined
in section forty-four hundred one of this article during the  months  of
July and August as contained in the individualized education program for
each  eligible  [child]  STUDENT, and with prior approval by the commis-
sioner if required; provided that [(i) a  student  with  a  handicapping
condition  who is first eligible to attend public school in the nineteen
hundred eighty-seven--eighty-eight school year shall not be eligible  to
receive  services  pursuant  to this paragraph during the months of July
and August nineteen hundred eighty-seven  and  (ii)  a  student  with  a
handicapping  condition who is first eligible to attend public school in
the nineteen hundred eighty-eight--eighty-nine school year shall not  be
eligible  to  receive  services  pursuant  to  this paragraph during the
months of July and August nineteen  hundred  eighty-eight  and  (iii)  a
student  with  a  handicapping  condition  who  is eligible for services
during the months of July and August nineteen hundred eighty-nine pursu-
ant to the provisions of subdivision six of section  forty-four  hundred
ten  of  this article shall not be eligible to receive services pursuant
to this paragraph during such months and (iv)] a student with a  [handi-
capping  condition]  DISABILITY  who is eligible for services, including
services during the months of  July  and  August,  pursuant  to  section
forty-four  hundred ten of this article shall not be eligible to receive
services pursuant to this  paragraph  during  the  months  of  July  and
August.
  S  7.  Paragraph  d  of subdivision 4 of section 4402 of the education
law, as amended by chapter 646 of the laws of 1992, is amended  to  read
as follows:
  d.  Notwithstanding  any  other  provision  of  law,  such board shall
provide suitable transportation up to a distance of fifty miles  to  and
from  a  nonpublic  school  which a [child] STUDENT with a [handicapping
condition] DISABILITY attends if such [child] STUDENT has been so  iden-

A. 8398                             7

tified  by  the  local  committee  on special education and such [child]
STUDENT attends such school for the purpose  of  receiving  services  or
programs  FROM SUCH NONPUBLIC SCHOOL THAT ARE similar to special [educa-
tional]  EDUCATION  programs  AND  SERVICES recommended for such [child]
STUDENT by the local committee on special  education.    NOTWITHSTANDING
ANY  OTHER PROVISION OF LAW TO THE CONTRARY, A NONPUBLIC STUDENT RECEIV-
ING TRANSPORTATION PURSUANT TO THIS PARAGRAPH SHALL NOT BE  ENTITLED  TO
SPECIAL  EDUCATION  PROGRAMS  AND  SERVICES  FROM THE SCHOOL DISTRICT OF
LOCATION PURSUANT TO SECTION THIRTY-SIX HUNDRED TWO-C OF  THIS  CHAPTER.
AS  A  CONDITION  OF  ELIGIBILITY FOR SUCH TRANSPORTATION, THE PARENT OR
PERSON IN  PARENTAL  RELATION  TO  THE  STUDENT  SHALL  CONSENT  TO  THE
PROVISION  OF  NOTICE  BY THE SCHOOL DISTRICT OF RESIDENCE TO THE CHAIR-
PERSON OF THE COMMITTEE OR SUBCOMMITTEE  ON  SPECIAL  EDUCATION  OF  THE
SCHOOL  DISTRICT  IN  WHICH  THE NONPUBLIC SCHOOL IS LOCATED IDENTIFYING
SUCH STUDENT, BY NAME, ADDRESS AND SCHOOL OF ATTENDANCE,  AS  A  STUDENT
RECEIVING TRANSPORTATION PURSUANT TO THIS PARAGRAPH. THE SCHOOL DISTRICT
OF  RESIDENCE  SHALL PROVIDE SUCH NOTICE NO LATER THAN THIRTY DAYS AFTER
COMMENCING SUCH TRANSPORTATION.
  S 8. Paragraph a of subdivision 1 of section  4404  of  the  education
law,  as  amended by chapter 430 of the laws of 2006, is amended to read
as follows:
  a. If the parent or person in parental  relation  of  a  student,  the
board  of  education  or trustees of a school district or a state agency
responsible  for  providing  education  to  students  with  disabilities
presents  a  complaint  with respect to any matter relating to the iden-
tification, evaluation or educational placement of the  student  or  the
provision  of  a  free  appropriate public education to the student or a
manifestation determination or other matter relating to  placement  upon
discipline  of a student with a disability that may be the subject of an
impartial hearing pursuant to subsection (k) of section fourteen hundred
fifteen of title twenty of the United States code and  the  implementing
federal  regulations,  and  the  party presenting the complaint or their
attorney provides a due process  complaint  notice  in  accordance  with
federal  law  and  regulations  and such complaint sets forth an alleged
violation that occurred not more than two  years  before  the  date  the
parent  or  public  agency  knew  or should have known about the alleged
action that forms the basis for the complaint,  OR  IN  THE  CASE  OF  A
COMPLAINT  SEEKING  TUITION  REIMBURSEMENT  FOR  THE UNILATERAL PARENTAL
PLACEMENT OF A STUDENT IN  A  PRIVATE  SCHOOL,  SUCH  TUITION  CLAIM  IS
PRESENTED  NOT  MORE  THAN ONE HUNDRED EIGHTY DAYS FROM THE PLACEMENT BY
THE PARENT OR PERSON IN PARENTAL RELATION IN  THE  PRIVATE  SCHOOL,  the
board or agency shall appoint an impartial hearing officer to review the
due  process  complaint notice when challenged and, if the matter is not
resolved in a resolution session that has been convened as  required  by
federal law, to preside over an impartial due process hearing and make a
determination  within  such  period of time as the commissioner by regu-
lation shall determine, provided that the board of education or trustees
shall offer the parent or person in  parental  relation  the  option  of
mediation  pursuant to section forty-four hundred four-a of this article
as an alternative to an impartial hearing. Where the parent or person in
parental relation or a school  district  or  public  agency  presents  a
complaint, the school district or public agency responsible for appoint-
ing  the impartial hearing officer shall provide the parent or person in
parental relation with a procedural safeguards notice as required pursu-
ant to subsection (d) of section fourteen hundred fifteen of title twen-
ty of the United States code and the implementing  federal  regulations.

A. 8398                             8

Notwithstanding  any  provision of this subdivision to the contrary, the
time limitation on presenting a complaint shall not apply to a parent or
person in parental relation to the student if the parent  or  person  in
parental  relation  was  prevented from requesting the impartial hearing
due to specific misrepresentations  by  the  school  district  or  other
public  agency that it had resolved the problem forming the basis of the
complaint or due to the school district's or other public agency's with-
holding of information from the parent or person  in  parental  relation
that  was  required  under  federal law to be provided.  Nothing in this
subdivision shall be construed to authorize the board  of  education  or
trustees  to  bring  an  impartial  hearing to override the refusal of a
parent or person in parental relation to consent where  a  local  educa-
tional  agency is prohibited by federal law from initiating such a hear-
ing.
  S 9. Paragraph f of subdivision 1 of section  4410  of  the  education
law,  as  amended by chapter 705 of the laws of 1992, is amended to read
as follows:
  f. "First eligible for services" means the earliest date  on  which  a
child becomes age-eligible for services pursuant to this section, and as
defined in regulations of the commissioner in accordance with applicable
federal  law and regulations, except that a child who is already receiv-
ing services under [section two hundred thirty-six of the  family  court
act  or  its successor] TITLE TWO-A OF ARTICLE TWENTY-FIVE OF THE PUBLIC
HEALTH LAW may, if the parent so chooses, continue  to  be  eligible  to
receive  such  services through August thirty-first of the calendar year
in which the child first becomes age-eligible to receive services pursu-
ant to this section OR, AT THE PARENT'S OPTION, UNTIL THE  LAST  DAY  OF
THE SCHOOL YEAR IN WHICH THE CHILD TURNS THREE YEARS OF AGE.
  S 10. Subdivision 8 of section 2541 of the public health law, as added
by  chapter 428 of the laws of 1992, paragraph (a) as amended by section
1 of part B3 of chapter 62 of the laws of 2003, is amended  to  read  as
follows:
  8.  (a) "Eligible child" means an infant or toddler from birth through
age two who has a disability; provided, however, that any toddler with a
disability who has been determined to be eligible for  program  services
under section forty-four hundred ten of the education law and:
  (i)  who turns three years of age on or before the thirty-first day of
August shall, if requested by the parent, be eligible to  receive  early
intervention  services  contained  in  an  IFSP  until  the first day of
September of that calendar year OR, AT THE REQUEST OF THE PARENT,  UNTIL
THE  LAST  DAY OF THE SCHOOL YEAR IN WHICH THE TODDLER WITH A DISABILITY
TURNS THREE YEARS OF AGE WHERE SUCH DATE IS LATER; or
  (ii) who turns three years of age on or after the first day of Septem-
ber shall, if requested by the parent and if already receiving  services
pursuant  to this title, be eligible to continue receiving such services
until [the second day of January of the  following  calendar  year]  THE
LAST DAY OF THE SCHOOL YEAR IN WHICH THE TODDLER WITH A DISABILITY TURNS
THREE YEARS OF AGE.
  (b)  Notwithstanding  the provisions of paragraph (a) of this subdivi-
sion, a child who  receives  services  pursuant  to  section  forty-four
hundred ten of the education law shall not be an eligible child.
  (C)  FOR  PURPOSES OF THIS SUBDIVISION, "SCHOOL YEAR" MEANS THE PERIOD
COMMENCING ON JULY FIRST AND ENDING ON THE THIRTIETH DAY  OF  JUNE  NEXT
FOLLOWING.
  S  11.  Section  22  of  chapter 352 of the laws of 2005, amending the
education law relating to implementation of the federal individuals with

A. 8398                             9

disabilities education improvement act of 2004, as  amended  by  chapter
378 of the laws of 2007, is amended to read as follows:
  S  22.  This act shall take effect July 1, 2005, provided, however, if
this act shall become a law after such date it shall take  effect  imme-
diately and shall be deemed to have been in full force and effect on and
after  July  1,  2005[; and provided further, however, that sections one
through four and six through twenty-one of this act shall expire and  be
deemed repealed June 30, 2009, and section five of this act shall expire
and be deemed repealed June 30, 2009].
  S 12. Subdivision (a) of section 8 of chapter 430 of the laws of 2006,
amending  the  education  law  relating to implementation of the federal
individuals with disabilities education  improvement  act  of  2004,  is
REPEALED.
  S 13. Subdivisions c and d of section 27 of chapter 378 of the laws of
2007,  amending  the  education  law  relating  to implementation of the
federal individuals with disabilities education improvement act of 2004,
are amended to read as follows:
  c.  the amendments to subdivision 7 of section 3602-c of the education
law made by section four of this act shall first apply  to  charges  for
costs  of services, evaluation and committee on special education admin-
istration that relate to the provision of special education programs and
services to students  attending  nonpublic  schools  for  the  2007-2008
school  year and shall be deemed to have been in full force on and after
June 30, 2007[; and
  d. the provisions of this act shall expire and be deemed repealed June
30, 2009].
  S 14. This act shall take effect June 30, 2009, provided that  in  the
event  that  it  shall become a law after such date, this act shall take
effect immediately and shall be deemed to have been in  full  force  and
effect on and after June 30, 2009; provided, however, that:
  (a)  the  amendments to paragraph a of subdivision 1 of section 3602-c
made by section four of this act and paragraph e  of  subdivision  2  of
section 3602-c of the education law as added by section four of this act
shall  first  apply  to  July and August programs for nonpublic students
with disabilities in July and August 2010;
  (b) the amendments to subdivision 7 of section 3602-c of the education
law made by section five of this act shall first apply  to  charges  for
costs  of services, evaluation and committee on special education admin-
istration that relate to the provision of special education programs and
services to students  attending  nonpublic  schools  for  the  2009-2010
school year; and
  (c)  the amendments to paragraph a of subdivision 1 of section 4404 of
the education law made by section eight of this act shall first apply to
due process complaints for tuition reimbursement presented on  or  after
September 1, 2009.