Assembly Bill A9384

                             
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   9384
 
                           I N  A S S E M B L Y
 
                               March 6, 2024
                                ___________
 
 Introduced  by  M.  of A. BICHOTTE HERMELYN -- read once and referred to
   the Committee on Education
 
 AN ACT to amend the education law,  in  relation  to  determinations  of
   appropriate  educational  programs  for  certain  students 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. 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 AN APPEAL BY THE PARENT OR  PERSON  IN
 PARENTAL  RELATION  OF  SUCH  RECOMMENDATION  SHALL  BE RESOLVED, EITHER
 THROUGH THE GRANTING OR DENIAL OF THE APPEAL  BY  AN  IMPARTIAL  HEARING
 OFFICER,  OR  BY  A STATE REVIEW OFFICER, OR 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 POPU-
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD05377-03-4
 A. 9384                             2
 
 LATION OF ONE MILLION OR MORE OR A STATE AGENCY, WITHIN  ANY  APPLICABLE
 TIME PERIODS PRESCRIBED BY FEDERAL LAW.  PROVIDED, FURTHER, THAT NOTHING
 IN  THIS ITEM SHALL BE DEEMED TO PROHIBIT ANY PARENT, PERSON IN PARENTAL
 RELATION OR SCHOOL DISTRICT FROM SEEKING JUDICIAL REVIEW BY ANY COURT OF
 COMPETENT JURISDICTION.
   UPON  THE  SIGNING OF A WRITTEN SETTLEMENT AGREEMENT BETWEEN A CHILD'S
 PARENT OR PERSON IN PARENTAL RELATION AND THE BOARD OF EDUCATION OF  THE
 SCHOOL  DISTRICT IN A CITY HAVING A POPULATION OF ONE MILLION OR MORE OR
 A STATE AGENCY, OR THE DECISION, ORDER,  OR  JUDGMENT  OF  AN  IMPARTIAL
 HEARING  OFFICER, STATE REVIEW OFFICER OR A COURT FINDING THAT A UNILAT-
 ERAL PARENTAL PLACEMENT WAS APPROPRIATE AND THAT TUITION PAYMENT  SHOULD
 BE  GRANTED  FOR  SUCH  UNILATERAL  PLACEMENT,  AS  PROVIDED  BY SECTION
 1412(A)(10)(C) OF TITLE 20 OF THE UNITED STATES CODE AND THE  IMPLEMENT-
 ING  FEDERAL REGULATIONS, THE AMOUNT OF SUCH PAYMENT AND THE TIMELINE OR
 SCHEDULE FOR MAKING SUCH PAYMENT SHALL BE SET FORTH IN ANY SUCH  SETTLE-
 MENT  OR DECISION, ORDER, OR JUDGMENT, AND SUCH PAYMENT SHALL BE MADE IN
 STRICT ACCORDANCE WITH SUCH TIMELINE.  A FAILURE BY SUCH BOARD OF EDUCA-
 TION TO MAKE SUCH PAYMENT IN STRICT ACCORDANCE WITH SUCH TIMELINE  SHALL
 BE A VIOLATION OF THIS SUBDIVISION.
   §  2.  Section  4403  of  the education law is amended by adding a new
 subdivision 22 to read as follows:
   22. THE COMMISSIONER SHALL  ENSURE  THAT  THE  IMPLEMENTATION  OF  ANY
 SETTLEMENT, DECISION, ORDER, OR JUDGMENT, PURSUANT TO ITEM (I) OF CLAUSE
 (B)  OF  SUBPARAGRAPH THREE OF PARAGRAPH B OF SUBDIVISION ONE OF SECTION
 FORTY-FOUR HUNDRED TWO OF  THIS  ARTICLE,  IS  TIMELY  IMPLEMENTED.  THE
 COMMISSIONER  SHALL BE EMPOWERED TO TAKE ALL ACTIONS NECESSARY TO EFFEC-
 TUATE SUCH TIMELY IMPLEMENTATION, INCLUDING, BUT NOT LIMITED TO, DIRECT-
 ING AND COMPELLING SUCH  DISTRICT  TO  IMPLEMENT  IMMEDIATELY  ANY  SUCH
 SETTLEMENT, DECISION, ORDER OR JUDGMENT IN ACCORDANCE WITH THE TIMELINES
 ESTABLISHED  BY  THIS  ARTICLE.  AND IT IS FURTHER PROVIDED THAT IF SUCH
 DISTRICT FAILS TO TIMELY MAKE ANY PAYMENT REQUIRED BY  SUCH  SETTLEMENT,
 DECISION,  ORDER OR JUDGMENT, THE COMMISSIONER SHALL, IN HIS OR HER SOLE
 DISCRETION: (A) WITHHOLD FROM SUCH DISTRICT  ITS  SHARE  OF  THE  PUBLIC
 MONEY  OF  THE STATE PURSUANT TO SECTION THREE HUNDRED SIX OF THIS CHAP-
 TER; (B) WITHHOLD FROM SUCH DISTRICT ALL OR A PORTION OF  ITS  SHARE  OF
 FUNDS  ALLOCATED  TO  IT PURSUANT TO 20 U.S.C. SECTIONS 1411 AND 1413 OF
 THE INDIVIDUALS WITH DISABILITIES ACT; (C) IMPOSE  UP  TO  NINE  PERCENT
 INTEREST  PER  ANNUM  ACCRUING  FROM  THE  DATE ON WHICH PAYMENT OF SUCH
 SETTLEMENT, DECISION, ORDER OR JUDGMENT IS LATE AND CONTINUING UNTIL  IT
 IS  FULLY  PAID,  WHICH  SHALL  BE  PAYABLE  TO  THE PARENT OR PERSON IN
 PARENTAL RELATION; (D) REPORT  SUCH  DISTRICT'S  NON-COMPLIANCE  TO  THE
 UNITED  STATES DEPARTMENT OF EDUCATION; AND/OR (E) TAKE ANY OTHER ACTION
 THE COMMISSIONER DEEMS APPROPRIATE PURSUANT TO THE POWERS VESTED IN  THE
 COMMISSIONER BY THIS CHAPTER.
   § 3. 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 SETTLEMENT OF AN IMPARTIAL HEARING OR APPEAL
 THEREFROM, OR UPON THE DECISION OF AN IMPARTIAL HEARING  OFFICER,  STATE
 REVIEW  OFFICER  OR A COURT FINDING THAT A UNILATERAL PARENTAL PLACEMENT
 WAS APPROPRIATE AND THAT TUITION PAYMENT  AND  ANY  OTHER  SERVICES  AND
 COSTS  SHOULD  BE GRANTED FOR SUCH UNILATERAL PLACEMENT, SUCH SETTLEMENT
 AGREEMENT, DECISION, ORDER OR JUDGMENT SHALL CONTINUE IN  FUTURE  YEARS,
 AT  THE SAME PERCENTAGE OF THE TOTAL TUITION, SERVICES, AND COSTS AS THE
 PREVIOUS YEAR'S PAYMENT, UNTIL THE COMMITTEE ON SPECIAL EDUCATION DETER-
 A. 9384                             3
 
 MINES THE CHILD'S NEEDS CAN BE MET IN ANOTHER PUBLIC OR APPROVED PRIVATE
 SCHOOL PROGRAM AND REVISES THE CHILD'S INDIVIDUALIZED EDUCATION  PROGRAM
 TO  RECOMMEND  SUCH PLACEMENT; PROVIDED HOWEVER THAT WHERE THE PARENT OR
 PERSON IN PARENTAL RELATION BRINGS A DUE PROCESS PROCEEDING TO CHALLENGE
 SUCH  REVISED  PLACEMENT,  THE  UNILATERAL  PARENTAL PLACEMENT FOR WHICH
 TUITION PAYMENT AND ANY OTHER SERVICES OR COSTS WERE GRANTED OR  SETTLED
 UPON,  SHALL  BE THE PENDENCY PLACEMENT, AS PROVIDED IN SUBDIVISION FOUR
 OF THIS SECTION.
   § 4. This act shall take effect immediately; provided,  however,  that
 the  amendments to clause (b) of subparagraph 3 of paragraph b of subdi-
 vision 1 of section 4402 of the education law, made by  section  one  of
 this  act,  shall  not  affect  the  expiration of such clause and shall
 expire therewith; provided, further, that the amendments to  subdivision
 1  of  section  4404 of the education law, made by section three of this
 act, shall not affect the  expiration  of  such  subdivision  and  shall
 expire therewith.