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SECTION 4401
Definitions
Education (EDN) CHAPTER 16, TITLE 6, ARTICLE 89
§ 4401. Definitions. As referred to in this article. * 1. A "child
with a disability" or "student with a disability" means a person under
the age of twenty-one who is entitled to attend public schools pursuant
to section thirty-two hundred two of this chapter and who, because of
mental, physical or emotional reasons can only receive appropriate
educational opportunities from a program of special education. Such term
does not include a child whose educational needs are due primarily to
unfamiliarity with the English language, environmental, cultural or
economic factors. Lack of appropriate instruction in reading, including
in the essential components of reading instruction as defined in
subsection three of section twelve hundred eight of the elementary and
secondary education act of nineteen hundred sixty-five, or lack of
appropriate instruction in mathematics or limited English proficiency
shall not be the determinant factor in identifying a student as a
student with a disability. "Special education" means specially designed
instruction which includes special services or programs as delineated in
subdivision two of this section, and transportation, provided at no cost
to the parents to meet the unique needs of a child with a disability. A
"child with a handicapping condition" means a child with a disability.

* NB Effective until June 30, 2024

* 1. A "child with a disability" or "student with a disability" means
a person under the age of twenty-one who is entitled to attend public
schools pursuant to section thirty-two hundred two of this chapter and
who, because of mental, physical or emotional reasons can only receive
appropriate educational opportunities from a program of special
education. Such term does not include a child whose educational needs
are due primarily to unfamiliarity with the English language,
environmental, cultural or economic factors. Lack of instruction in
reading or mathematics or limited English proficiency shall not be the
determinant factor in identifying a student as a student with a
disability. "Special education" means specially designed instruction
which includes special services or programs as delineated in subdivision
two of this section, and transportation, provided at no cost to the
parents to meet the unique needs of a child with a disability. A "child
with a handicapping condition" means a child with a disability.

* NB Effective June 30, 2024

2. "Special services or programs". For purposes of this article,
special services or programs shall mean the following:

a. Special classes, transitional support services, resource rooms,
direct and indirect consultant teacher services, transition services as
defined in subdivision nine of this section, assistive technology
devices as defined under federal law, travel training, home instruction,
and special teachers to include itinerant teachers as provided by the
schools of the district of residence with such terms and services to be
defined by regulations of the commissioner.

b. Contracts with other districts for special services or programs.

c. Contracts with or special services or programs provided by boards
of cooperative educational services.

d. Appointment by the commissioner to a state school in accordance
with article eighty-seven or eighty-eight of this chapter or a
state-supported school in accordance with article eighty-five of this
chapter.

e. Contracts with private non-residential schools which have been
approved by the commissioner and which are within the state for special
services or programs.

f. Contracts with private non-residential schools which have been
approved by the commissioner and which are outside of the state for
special services or programs.

g. Contracts with private residential schools which have been approved
by the commissioner and which are within the state for special services
or programs.

h. Contracts with private residential schools which have been approved
by the commissioner and which are outside the state for special services
or programs.

i. Contracts with the state university at Binghamton for
non-residential special services or programs at the children's unit for
treatment and evaluation which have been approved by the commissioner.

j. Provision of educational services in a residential facility for the
care and treatment of students with disabilities under the jurisdiction
of a state agency other than the department.

* k. Related services which shall in appropriate cases be furnished to
students with disabilities shall include audiology, counseling including
rehabilitation counseling services, occupational therapy, physical
therapy, speech pathology, medical services as defined by regulations of
the commissioner, psychological services, school health services, school
nurse services, school social work, assistive technology services as
defined under federal law, interpreting services, orientation and
mobility services, parent counseling and training and other appropriate
developmental, corrective or other support services and appropriate
access to recreation. Such term does not include a medical device that
is surgically implanted, the optimization of that device's functioning
(e.g., mapping), maintenance of that device, or the replacement of such
device.

* NB Effective until June 30, 2024

* k. Related services which shall in appropriate cases be furnished to
students with disabilities shall include audiology, counseling including
rehabilitation counseling services, occupational therapy, physical
therapy, speech pathology, medical services as defined by regulations of
the commissioner, psychological services, school health services, school
social work, assistive technology services as defined under federal law,
orientation and mobility services, parent counseling and training and
other appropriate developmental, corrective or other support services
and appropriate access to recreation.

* NB Effective June 30, 2024

l. Contracts for residential or nonresidential placements with a
special act school district listed in chapter five hundred sixty-six of
the laws of nineteen hundred sixty-seven.

m. Provision of nonresidential education services in Fairmount
children's center, which facility has been approved by the commissioner
for the education of students with disabilities. Students placed under
the provisions of this paragraph shall not be eligible for state aid
under the provisions of sections thirty-six hundred two and thirty-six
hundred two-c of this chapter.

n. Formalized agreements for the provision of transition services as
defined in subdivision nine of this section in programs such as
vocational training programs approved by the department or by another
state agency. Nothing in this article shall be construed to relieve
another agency of responsibility to provide or pay for any transition
service that the agency would otherwise provide to students with
disabilities who meet the eligibility criteria of that agency.

3. "Maintenance". For purposes of this article "maintenance" shall
mean the amount charged for room and board and allocable debt service as
determined by the commissioner for the living unit of the residential
facility by a residential school and such reasonable medical expenses
actually and necessarily incurred by a handicapped child while actually
in attendance at a residential school, provided that such medical
expenses shall be for diagnostic, evaluative, educationally related, and
emergency care services as defined by regulations of the commissioner.
Such amount, which shall not include expenses which are otherwise
reimbursable to a residential facility by a federal, state or local
agency, shall be approved by the commissioner of social services and the
director of the division of the budget and shall not be otherwise
payable or reimbursable.

4. "Transportation expense." For the purposes of determining
transportation aid pursuant to this article, "transportation expense"
shall mean any cost incurred by the school district for the
transportation of a handicapped child pursuant to the provisions of
subdivision four of section forty-four hundred two of this article,
notwithstanding any minimum or maximum aidable limits established by
other provisions of the education law or pursuant to regulations of the
commissioner or school district, allowed pursuant to the applicable
provisions of parts two and three of article seventy-three of this
chapter, provided, however, that such transportation shall not be in
excess of fifty miles from the home of such pupil to the appropriate
special service or program unless the commissioner shall certify that no
appropriate non-residential special service or program is available
within such fifty miles, and that the commissioner may establish by
regulation a maximum number of trips between a pupil's home and the
private residential school which provides special services or programs
to such pupil. Such cost shall include the cost of joint or regional
transportation provided by school districts or boards of cooperative
educational services for such purposes and subject to the same limits.

5. "Tuition" shall mean the per pupil cost of all instructional
services, supplies and equipment, the operation of instructional
facilities and allocable debt service for the instructional facilities,
as determined by the commissioner. Approved tuition shall be computed
from expenditures from which no revenue has been received from the
following sources:

(a) receipts from the federal government;

(b) any cash receipts which reduce the cost of an item applied against
the item therefor, except gifts, donations and earned interest, and

(c) any refunds made or any apportionment or payment received from the
state for experimental or special programs as approved by the
commissioner.

6. "Excess cost" shall mean the difference between the tuition and the
sum of the following:

a. the school district basic contribution as defined in subdivision
eight of this section; and

b. the amount of federal funds received by the school district and
expended for such pupil which in the judgment of the commissioner shall
be deemed duplicative.

7. "Excess cost aid ratio" for a school district shall be computed by
subtracting from one the product obtained by multiplying fifteen per
centum by the combined wealth ratio as defined in section thirty-six
hundred two of this chapter. This aid ratio shall be expressed as a
decimal carried to three places without rounding, but shall not be less
than fifty hundredths, nor more than one.

8. "School district basic contribution" shall mean an amount equal to
the total school district local property and non-property tax levy for
the base year divided by the base year public school district enrollment
of resident pupils of the school district as defined in paragraph n of
subdivision one of section thirty-six hundred two of this chapter,
except that for the two thousand thirteen--two thousand fourteen and two
thousand fourteen--two thousand fifteen school year and thereafter, for
school districts other than central high school districts and their
components, such tax levy for the base year shall be divided by the year
prior to the base year pupil count as determined by the commissioner
pursuant to paragraph f of subdivision two of section thirty-six hundred
two of this chapter for any school district in which such year prior to
the base year pupil count exceeds one hundred fifty percent of such base
year public school district enrollment of resident pupils.

* 9. "Transition services" shall mean a coordinated set of activities
for a student with a disability, designed to be within a
results-oriented process, that is focused on improving the academic and
functional achievement of the student with a disability to facilitate
movement from school to post-school activities, including post-secondary
education, vocational education, integrated employment (including
supported employment), continuing and adult education, adult services,
independent living, or community participation. The coordinated set of
activities shall be based upon the student's strengths, preferences and
interests, and shall include instruction, related services, community
experiences, the development of employment and other post-school adult
living objectives, and, if appropriate, acquisition of daily living
skills and provision of a functional vocational evaluation.

* NB Effective until June 30, 2024

* 9. "Transition services" shall mean a coordinated set of activities
for a student with a disability, designed within an outcome-oriented
process, which promotes movement from school to post-school activities,
including post-secondary education, vocational training, integrated
competitive employment (including supported employment), continuing and
adult education, adult services, independent living, or community
participation. The coordinated set of activities shall be based upon the
individual student's needs, taking into account the student's
preferences and interests, and shall include instruction, related
services, community experiences, the development of employment and other
post-school adult living objectives, and, if appropriate, acquisition of
daily living skills and functional vocational evaluation.

* NB Effective June 30, 2024

10. Notwithstanding any inconsistent provisions of this article, where
a private not-for-profit school enters into a lease, sublease or other
agreement with the dormitory authority pursuant to section sixteen
hundred eighty of the public authorities law, the tuition rates
established by the commissioner pursuant to this section shall be
established in two parts, one part of which shall be the cost per child
of the annual rental payment pursuant to such lease, sublease or other
agreement to be paid by the school district or the social services
district, as the case may be, to the fund established by this chapter;
the remaining part shall be the tuition amount to be paid to the private
not-for-profit school.

11. Notwithstanding any inconsistent provisions of this article, where
the special act school district enters into a lease, sublease or other
agreement with the dormitory authority pursuant to section four hundred
seven-a of this chapter, the tuition rates established by the
commissioner pursuant to this section shall be established in two parts,
one part of which shall be the cost per child of the annual rental
payment pursuant to such section four hundred seven-a of this chapter to
be paid by the school district or the social services district, as the
case may be, to the fund established in such section; the remaining part
shall be the tuition amount to be paid to the special act school
district.