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SECTION 4402
Duties of school districts
Education (EDN) CHAPTER 16, TITLE 6, ARTICLE 89
§ 4402. Duties of school districts. 1. * a. The board of education or
trustees of each school district and the city school district of the
city of New York shall, under regulations prescribed by the commissioner
and approved by the regents of the university, identify, locate and
evaluate in accordance with this section all students with disabilities
in such district who are in need of special education, including
children with disabilities who are homeless children or are wards of the
state as defined in the regulations of the commissioner and, consistent
with section thirty-six hundred two-c of this chapter, students who
attend nonpublic schools within such school district, and shall maintain
a register containing the name of each child with a disability who
resides in the district, the nature of such child's disability, the
educational placement and setting, if any, of such child, and any other
student-specific data required to comply with federal law or
regulations.

* NB Effective until June 30, 2024

* a. The board of education or trustees of each school district and
the city school district of the city of New York shall ascertain under
regulations prescribed by the commissioner and approved by the regents
of the university, the number of children with handicapping conditions
in such district under the age of twenty-one years and the nature of the
handicapping condition of each such child in accordance with the
provisions of this section, and shall maintain a register containing the
name of each child with a handicapping condition who resides in the
district, the nature of such child's handicapping condition, the
educational placement and setting, if any, of such child.

* NB Effective June 30, 2024

b. (1) The board of education or trustees of each school district
shall establish committees and/or subcommittees on special education as
necessary to ensure timely evaluation and placement of pupils. The board
of education of the city school district of the city of New York, shall
establish at least one committee on special education in each of its
community school districts, provided that appointments to the community
school district committees shall be made upon the approval of the
community school board except that the board of education of the city
school district of the city of New York, may establish one committee to
serve more than one community school district, in which case,
appointments thereto shall be made upon the joint approval of the
affected community school boards; provided, however, that prior to such
consolidation, the board shall consider the relative caseload of the
committee on special education in each affected community school
district, including but not limited to the following factors: the number
of students evaluated by such committee; the number of referrals to
special education in such community school district; the ability to
comply with mandated paperwork and timelines; and other issues which the
board deems pertinent.

(a) Such committees shall be composed of at least the following
members: (i) the parents or persons in parental relationship to the
student; (ii) one regular education teacher of the student whenever the
student is or may be participating in the regular education environment;
(iii) one special education teacher of the student, or, if appropriate,
a special education provider of the student; (iv) a school psychologist;
(v) a representative of such school district who is qualified to provide
or administer or supervise special education and is knowledgeable about
the general curriculum and the availability of resources of the school
district; (vi) an individual who can interpret the instructional
implications of evaluation results; (vii) a school physician; (viii) an
additional parent, residing in the school district or a neighboring
school district, of a student with a disability, of a student who has
been declassified and is no longer eligible for an individualized
education program (IEP), or a parent of a disabled child who has
graduated, for a period of five years beyond the student's
declassification or graduation, provided such parent shall not be
employed by or under contract with the school district, and provided
further that such additional parent shall not be a required member if
the parents request that such additional parent member not participate;
(ix) such other persons having knowledge or special expertise regarding
the student as the school district or the parents or persons in parental
relationship to the student shall designate, to the extent required
under federal law; and (x) if appropriate, the student.

* (b) In determining the composition of such committee pursuant to
clause (a) of this subparagraph, a school district may determine that a
member appointed pursuant to one of subclause (ii), (iii), (iv), (v) or
(ix) of clause (a) of this subparagraph also fulfills the requirement of
subclause (vi) of clause (a) of this subparagraph of a member who is an
individual who can interpret the instructional implications of
evaluation results where such individuals are determined by the school
district to have the knowledge and expertise to do so and/or that a
member appointed pursuant to subclause (iii) or (iv) of clause (a) of
this subparagraph also fulfills the requirement of subclause (v) of
clause (a) of this subparagraph of a member who is a representative of
the school district. The regular education teacher of the student shall
participate in the development, review and revision of the
individualized education program for the student, to the extent required
under federal law. The school physician need not be in attendance at any
meeting of the committee on special education unless specifically
requested in writing, at least seventy-two hours prior to such meeting
by the parents or other person in parental relation to the student in
question, the student, or a member of the committee on special
education. The parents or persons in parental relation of the student in
question shall receive proper written notice of their right to have the
school physician attend the meetings of the committee on special
education upon referral of said student to the committee on special
education or whenever such committee plans to modify or change the
identification, evaluation or educational placement of the student. The
additional parent need not be in attendance at any meeting of the
committee on special education unless specifically requested in writing,
at least seventy-two hours prior to such meeting by the parents or other
person in parental relation to the student in question, the student, or
a member of the committee on special education. The parents or persons
in parental relation of the student in question shall receive proper
written notice of their right to have an additional parent attend any
meeting of the committee regarding the student along with a statement,
prepared by the department, explaining the role of having the additional
parent attend the meeting. The committee shall invite the appropriate
professionals most familiar with a student's disability or disabilities
to attend any meeting concerning the educational program for such
student. Except as otherwise provided in this clause or clause (b-1) or
(b-2) of this subparagraph, all members of such committee shall attend
meetings of the committee on special education.

Members of such committee shall serve at the pleasure of such board
and members who are neither employees of nor under contract with such
district shall serve without compensation except that such members shall
be entitled to a per diem to defray expenses incurred in such service,
provided, however, that any expense incurred shall be deemed an aidable
operating expense for purposes of state aid.

* NB Effective until June 30, 2024

* (b) In determining the composition of such committee pursuant to
clause (a) of this subparagraph, a school district may determine that a
member appointed pursuant to one of subclause (ii), (iii), (iv), (v) or
(ix) of clause (a) of this subparagraph also fulfills the requirement of
subclause (vi) of clause (a) of this subparagraph of a member who is an
individual who can interpret the instructional implications of
evaluation results where such individuals are determined by the school
district to have the knowledge and expertise to do so and/or that a
member appointed pursuant to subclause (iii) or (iv) of clause (a) of
this subparagraph also fulfills the requirement of subclause (v) of
clause (a) of this subparagraph of a member who is a representative of
the school district. The regular education teacher of the student shall
participate in the development, review and revision of the
individualized education program for the student, to the extent required
under federal law. The school physician need not be in attendance at any
meeting of the committee on special education unless specifically
requested in writing, at least seventy-two hours prior to such meeting
by the parents or other person in parental relationship to the student
in question, the student, or a member of the committee on special
education. The parents or persons in parental relationship of the
student in question shall receive proper written notice of their right
to have the school physician attend the meetings of the committee on
special education upon referral of said student to the committee on
special education or whenever such committee plans to modify or change
the identification, evaluation or educational placement of the student.
The additional parent need not be in attendance at any meeting of the
committee on special education unless specifically requested in writing,
at least seventy-two hours prior to such meeting by the parents or other
person in parental relation to the student in question, the student, or
a member of the committee on special education. The parents or persons
in parental relation of the student in question shall receive proper
written notice of their right to have an additional parent attend any
meeting of the committee regarding the student along with a statement,
prepared by the department, explaining the role of having the additional
parent attend the meeting. The committee shall invite the appropriate
professionals most familiar with a student's disability or disabilities
to attend any meeting concerning the educational program for such
student.

Members of such committee shall serve at the pleasure of such board
and members who are neither employees of nor under contract with such
district shall serve without compensation except that such members shall
be entitled to a per diem to defray expenses incurred in such service,
provided, however, that any expense incurred shall be deemed an aidable
operating expense for purposes of state aid.

* NB Effective June 30, 2024

* (b-1) Notwithstanding any provision of law, rule or regulation to
the contrary, a member of the committee on special education, other than
the parents or persons in parental relation to the student is not
required to attend a meeting of the team, in whole or in part, if the
parent or person in parental relation to the student and the school
district agree, in writing, that the attendance of the member is not
necessary because the member's area of the curriculum or related
services is not being modified or discussed at the meeting.

* NB Repealed June 30, 2024

* (b-2) Notwithstanding any provision of law, rule or regulation to
the contrary, a member of the committee on special education, other than
the parents or persons in parental relation to the student, may be
excused from attending a meeting of the committee, in whole or in part,
when the meeting involves a modification to or discussion of the
member's area of the curriculum or related services if the parent or
person in parental relation to the student and the school district
consent, in writing, to the excusal and the excused member submits to
the parent or person in parental relation to the student and such
committee, written input into the development of the individualized
education program, and in particular written input with respect to their
area of curriculum or related services prior to the meeting.

* NB Repealed June 30, 2024

* (b-3) Requests for excusal of a member of the committee as provided
for in clauses (b-1) and (b-2) of this subparagraph, and the written
input as provided for in clause (b-2) of this subparagraph, shall be
provided not less than five calendar days prior to the meeting date, in
order to afford the parent or person in parental relation a reasonable
time to review and consider the request. Provided however, that a parent
or person in parental relation shall retain the right to request and/or
agree with the school district to excuse a member of the special
education committee at any time including where the member is unable to
attend the meeting because of an emergency or unavoidable scheduling
conflict and the school district submits the written input for review
and consideration by the parent or person in parental relation within a
reasonable time prior to the meeting and prior to obtaining written
consent of the parent or person in parental relation to such excusal.

* NB Repealed June 30, 2024

(c) Districts not having available personnel may share the services of
a local committee on special education with another school district or
contract with a board of cooperative educational services for such
personnel pursuant to regulations of the commissioner. A district having
a subcommittee on special education may share the services of a local
committee on special education with another school district, provided
that a representative of such school district who is qualified to
provide or administer or supervise special education and is
knowledgeable about the general curriculum and the availability of
resources of the school district shall be a member of such committee
when it convenes on behalf of a student who is a resident of such
district.

* (d) Boards of education in city school districts in cities having in
excess of one hundred twenty-five thousand inhabitants shall appoint
subcommittees on special education, to the extent necessary to ensure
timely evaluation and placement of students with disabilities. Boards of
education or trustees of any school district outside of a city having a
population in excess of one hundred twenty-five thousand inhabitants may
appoint subcommittees on special education to assist the board of
education in accordance with this clause and the regulations of the
commissioner. The membership of each subcommittee shall include, but not
be limited to, the committee members required by subclauses (i), (ii),
(iii), (v), (vi), (ix) and (x) of clause (a) of this subparagraph, and a
school psychologist whenever a new psychological evaluation is reviewed
or a change to a more restrictive program option, as defined in
regulations of the commissioner, is considered. Except when (i) a
student is considered for initial placement in a special class, or (ii)
a student is considered for initial placement in a special class outside
of the student's school of attendance, or (iii) whenever a student is
considered for placement in a school primarily serving students with
disabilities or a school outside of the student's district, each
subcommittee may perform the functions for which the committee on
special education is responsible pursuant to the provisions of this
subdivision. Notwithstanding any other provisions of this clause to the
contrary, attendance of members of a subcommittee may be excused from
attendance in the same manner as members of a committee on special
education pursuant to clauses (b-1), (b-2) or (b-3) of this
subparagraph. Each subcommittee shall report annually the status of each
student with a disability within its jurisdiction to the committee on
special education, and the subcommittee shall refer to the committee,
upon receipt of a written request from the parent or person in parental
relation to a student, any matter in which the parent disagrees with the
subcommittee's recommendation concerning a modification or change in the
identification, evaluation, educational placement or provision of a free
appropriate public education to such student. The committee on special
education shall be responsible for oversight and monitoring of the
activities of each subcommittee to assure compliance with the
requirements of applicable and federal law and regulations.

* NB Effective until June 30, 2024

* (d) Boards of education in city school districts in cities having in
excess of one hundred twenty-five thousand inhabitants shall appoint
subcommittees on special education, to the extent necessary to ensure
timely evaluation and placement of students with disabilities. Boards of
education or trustees of any school district outside of a city having a
population in excess of one hundred twenty-five thousand inhabitants may
appoint subcommittees on special education to assist the board of
education in accordance with this clause and the regulations of the
commissioner. The membership of each subcommittee shall include, but not
be limited to, the committee members required by subclauses (i), (ii),
(iii), (v), (vi), (ix) and (x) of clause (a) of this subparagraph, and a
school psychologist whenever a new psychological evaluation is reviewed
or a change to a more restrictive program option, as defined in
regulations of the commissioner, is considered. Except when (i) a
student is considered for initial placement in a special class, or (ii)
a student is considered for initial placement in a special class outside
of the student's school of attendance, or (iii) whenever a student is
considered for placement in a school primarily serving students with
disabilities or a school outside of the student's district, each
subcommittee may perform the functions for which the committee on
special education is responsible pursuant to the provisions of this
subdivision. Each subcommittee shall report annually the status of each
student with a disability within its jurisdiction to the committee on
special education, and the subcommittee shall refer to the committee,
upon receipt of a written request from the parent or person in parental
relationship to a student, any matter in which the parent disagrees with
the subcommittee's recommendation concerning a modification or change in
the identification, evaluation, educational placement or provision of a
free appropriate public education to such student. The committee on
special education shall be responsible for oversight and monitoring of
the activities of each subcommittee to assure compliance with the
requirements of applicable and federal law and regulations.

* NB Effective June 30, 2024

* (2) Such committees or subcommittees shall review at least annually,
the status of each student with a disability and each student thought to
be disabled who is identified pursuant to paragraph a of this
subdivision. Such review shall consider the educational progress and
achievement of the student with a disability and the student's ability
to participate in instructional programs in regular education.

* NB Effective until June 30, 2024

* (2) Such committees or subcommittees shall identify, review and
evaluate at least annually, the status of each child with a handicapping
condition and each child thought to be handicapped who resides within
the school district. Such review shall consider the educational progress
and achievement of the child with a handicapping condition and the
child's ability to participate in instructional programs in regular
education.

* NB Effective June 30, 2024

(3) The committee or when applicable the subcommittee shall:

(a) Obtain, review and evaluate all relevant information, including
but not limited to that presented by the parent, person in parental
relationship and teacher, pertinent to each child suspected of or
identified as having a handicapping condition, including the results of
a physical examination performed in accordance with sections nine
hundred three, nine hundred four and nine hundred five of this chapter
and, where determined to be necessary by a school psychologist, an
appropriate psychological evaluation performed by a qualified private or
school psychologist, and other appropriate assessments as necessary to
ascertain the physical, mental, emotional and cultural-educational
factors which may contribute to the suspected or identified handicapping
condition, and all other school data which bear on the child's progress,
including, where appropriate, observation of classroom performance.

* (b) (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.

(ii) Notwithstanding any provisions of this clause or clause (a) of
this subparagraph to the contrary, in making changes to a student's
individualized education program after the annual review has been
conducted, the parent or person in parental relation to the student and
the school district may agree not to convene a meeting of the committee
on special education for the purpose of making those changes, and
instead may develop a written document to amend or modify the student's
current individualized education program under the following
circumstances:

(A) The parent or person in parental relation makes a request to the
school district for an amendment to the individualized education program
and the school district and such parent or person in parental relation
agree in writing; or

(B) The school district provides the parent or person in parental
relation with a written proposal to amend a provision or provisions of
the individualized education program that is conveyed in language
understandable to the parent or person in parental relation in such
parent's or such person's native language or other dominate mode of
communication, informs and allows the parent or person in parental
relation the opportunity to consult with the appropriate personnel or
related service providers concerning the proposed changes and the parent
or person in parental relation agrees in writing to such amendments.

(C) If the parent or person in parental relation agrees to amend the
individualized education program without a meeting, the parent or person
in parental relation shall be provided prior written notice of the
changes to the individualized education program resulting from such
written document and the special education committee shall be notified
of such changes. If the school district makes such changes by rewriting
the entire individualized education program, it shall provide the parent
or person in parental relation with a copy of the rewritten
individualized education program. If the school district amends the
individualized education program without rewriting the entire document,
the school district shall provide the parent or person in parental
relation with a copy of the document that amends or modifies the
individualized education program or, upon request of the parent or
person in parental relation, a revised copy of the individualized
education program with the amendments incorporated.

Amendments to an individualized education program pursuant to this
subitem shall not affect the requirement that the special education
committee review the individualized education program at the annual
meeting, or more often if necessary.

* NB Effective until June 30, 2024

* (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
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
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.

* NB Effective June 30, 2024

(c) Provide written prior notice to the parents or person in parental
relationship of the child upon receipt of referral for evaluation or
whenever such committee plans to continue, modify or change the
identification, evaluation, or educational placement of the child or the
provision of a free appropriate public education to the child and advise
the parent of or person in parental relationship to the child of his or
her opportunity to address the committee, either in person or in
writing, on the appropriateness of the committee's recommendations on
program placements to be made to the board of education or trustees.
Such notice shall, where a child has been placed in a residential
program by a committee on special education, or has been determined to
be at risk of such a placement pursuant to subparagraph four of
paragraph b of subdivision one of section forty-four hundred two of this
article, also notify the parent or other person in parental relationship
that the child is not entitled to receive free educational services or
to remain in a residential educational program after the age of
twenty-one, the receipt of a high school diploma or the time described
in subdivision five of this section.

* (d) Advise the board of education or trustees concerning the
frequency and nature of periodic reevaluations of students with
disabilities by appropriate specialists, provided, however, that each
student in a special program or a special class shall be reevaluated by
qualified appropriate school personnel at least once every three years,
except where the school district and the parent or person in parental
relation to the student agree in writing that such a reevaluation is
unnecessary. A reevaluation of a student with a disability shall be
conducted by qualified individuals, in accordance with regulations of
the commissioner consistent with the requirements of a reevaluation as
defined by the applicable federal regulation. A reevaluation may not be
conducted more than once a year unless the parent or person in parental
relation to the student and the school district otherwise agree.

* NB Effective until June 30, 2024

* (d) Advise the board of education or trustees concerning the
frequency and nature of periodic reevaluations of students with
disabilities by appropriate specialists, provided, however, that each
student in a special program or a special class shall be reevaluated by
qualified appropriate school personnel at least once every three years.
A reevaluation of a student with a disability shall be conducted by
qualified individuals, in accordance with regulations of the
commissioner consistent with the requirements of a reevaluation as
defined by the applicable federal regulation.

* NB Effective June 30, 2024

(d-1) Each school district shall develop policies, pursuant to
regulations of the commissioner, to provide special services or
programs, to the extent appropriate to the needs of the child, to enable
the child to be involved in and progress in the general education
curriculum.

(e) Make, or have made, periodic evaluations of the adequacy of
programs, services and facilities for children with handicapping
conditions.

(f) Report periodically, but at least annually, to the board of
education or trustees on the status of programs, services, and
facilities made available by the school district in accordance with the
provisions of subdivision eight of section thirty-six hundred two of
this chapter. Such reports shall be kept on file for inspection by the
commissioner.

(g) Provide for the transmittal of information by the board of
education, including such test results and evaluations as the committee
may have collected, to the home district of the child with a
handicapping condition in cases where the home school district has
contracted for the child's education with another school district or
board of cooperative educational services.

(h) Provide the form developed pursuant to subdivision fifteen of
section three hundred fifty-three of the executive law to the parent or
person in parental relation of a child designated by the committee as
either disabled or emotionally disturbed.

(i) Provide, to the extent appropriate to the individual needs of the
student with a disability that such student is educated in a setting
with students who are nondisabled.

* (i) In accordance with the regulations of the commissioner and
subsection (k) of section fourteen hundred fifteen of title twenty of
the United States code and the implementing federal regulations, to
develop a functional behavioral assessment plan, to review, or revise,
as appropriate, a behavioral intervention plan, to develop appropriate
behavioral interventions and to review and revise, as appropriate, the
implementation of a behavioral intervention plan, to address the
behavior of a student with a disability who is alleged to have engaged
in misconduct, to the extent required by federal law and regulations.

* NB Effective June 30, 2024

* (j) In accordance with the regulations of the commissioner and
subsection (k) of section fourteen hundred fifteen of title twenty of
the United States code and the implementing federal regulations, to
conduct a functional behavioral assessment, to review, or revise, as
appropriate or necessary, and implement a behavioral intervention plan,
to develop appropriate behavioral interventions and to review and
revise, as appropriate or necessary, the implementation of a behavioral
intervention plan, to address the behavior of a student with a
disability who is alleged to have engaged in misconduct, to the extent
required by federal law and regulations.

* NB Effective until June 30, 2024

* (j) In accordance with the regulations of the commissioner and
subsection (k) of section fourteen hundred fifteen of title twenty of
the United States code and the implementing federal regulations, to
conduct a review to determine whether behavior of a student with a
disability which violates the applicable school rules or code of conduct
and results in a change in placement under federal law, including but
not limited to placement in an interim alternative educational setting
pursuant to clause (iv) or (vii) of subparagraph three of paragraph g of
subdivision three of section thirty-two hundred fourteen of this
chapter, was a manifestation of the student's disability, provided that
other qualified school district personnel may participate in such
review.

* NB Effective June 30, 2024

* (k) In accordance with the regulations of the commissioner and
subsection (k) of section fourteen hundred fifteen of title twenty of
the United States code and the implementing federal regulations, to
determine the setting and services to be provided in the interim
alternative educational setting for a student with a disability who
carries or possesses a weapon to or at school, on school premises, or to
or at a school function or knowingly possesses or uses illegal drugs or
sells or solicits the sale of a controlled substance while at school or
a school function or who has inflicted serious bodily injury upon
another person as defined in federal law and the setting and services to
be provided to a student with a disability in an interim alternative
educational setting or other setting who is removed because of behavior
that has been determined not to be a manifestation of the student's
disability.

* NB Effective until June 30, 2024

* (k) In accordance with the regulations of the commissioner and
subsection (k) of section fourteen hundred fifteen of title twenty of
the United States code and the implementing federal regulations, to
determine the services to be provided in the interim alternative
educational placement for a student with a disability who carries or
possesses a weapon to or at school, on school premises, or to or at
school function or knowingly possesses or uses illegal drugs or sells or
solicits the sale of a controlled substance while at school or a school
function and the services to be provided to a student with a disability
who is removed because of behavior that has been determined not to be a
manifestation of the student's disability.

* NB Effective June 30, 2024

(l) In accordance with the regulations of the commissioner and the
provisions of subsection (k) of section fourteen hundred fifteen of
title twenty of the United States code, and the implementing federal
regulations, to conduct expedited evaluations under the circumstances
specified in such federal law and regulations and to conduct such
reviews and make such determinations regarding students presumed to have
a disability for discipline purposes as defined in subdivision three of
section thirty-two hundred fourteen of this chapter as are required
under the federal individuals with disabilities education act and
implementing regulations.

(3-a) The members of the committee or subcommittee may compile a list
of appropriate and/or helpful services that may be available outside of
the school setting to provide the parents or person in parental relation
of a child with a disability with such information. Such list shall
clearly state that these services are in addition to services supplied
by the school district and will not be paid for by the school district.
Any member of a committee or subcommittee or his or her respective
school district who, acting reasonably and in good faith, provides such
information shall not be liable for such action.

(4) (a) When the committee on special education of a local school
district determines that a child who is living in his or her own home is
at risk of a future placement in a residential school, as determined in
accordance with guidelines established by the department pursuant to
subdivision nineteen of section forty-four hundred three of this
article, the committee shall provide the parent or other person in
parental relationship with information, where such information has been
made available to the committee, about the community support services
that may be available to the family, including an assessment of the
family's community support services needs in accordance with such
guidelines and, where such an assessment is available, the name and
address of the agency which can perform the assessment.

* (b) When the committee on special education of a local school
district determines that a child who is receiving foster care is at risk
of a future placement in a residential school, the committee, with the
consent of the parent or person in parental relation or the student, if
he or she is over the age of eighteen, shall notify the social services
district responsible for the child of its determination that the child
is at risk of placement.

* NB Effective until June 30, 2024

* (b) When the committee on special education of a local school
district determines that a child who is receiving foster care is at risk
of a future placement in a residential school, the committee shall
notify the social services district responsible for the child of its
determination that the child is at risk of placement.

* NB Effective June 30, 2024

* (c) The committee on special education, with the consent of the
parent or person in parental relation or the student, if he or she is
over the age of eighteen, shall request in writing a designee of the
appropriate county or state agency to participate, in accordance with
guidelines established by the department, in any proceeding of the
committee where a child is at risk of residential placement. The
committee shall forward a copy of any such request to the office for
people with developmental disabilities and the office of mental health.
A designee or designees of the agency may participate in any such
proceeding for the purpose of making recommendations concerning the
appropriateness of residential placement and other programs and
placement alternatives, including, but not limited to, community support
services that may be available to the family. Such designee or designees
shall not be considered members of the committee. Such designee or
designees shall include, but not be limited to, representatives of any
agency receiving coordinated children's services initiative funding as
referenced in the aid to localities budget, of a local interagency
coordinating body, of the social services district, the local mental
health agency, or health department, or of the developmental
disabilities service office, as appropriate. The name of such designee
or designees, if any, shall be made available to each committee on
special education in the county. In addition, with the consent of the
parent or other person in parental relation, the committee may confer
with other appropriate providers of services to identify any services
that may be of benefit to the family based on the family's
identification of or the committee's observation of family services
needs. As used in this chapter, the term "county" means county as
defined in section four thousand one of this title, and the term
"appropriate agency" means one of the following agencies:

(i) a local interagency body capable of performing a multidisciplinary
assessment of the family's community support services needs; or

(ii) if no such agency exists in the locality, any county agency which
is receiving state coordinated children's services initiative funding as
referenced in the aid to localities budget; or

(iii) where neither such agency exists in the locality, either the
area developmental disabilities services office, where the primary
reason the child is at risk of placement relates to mental retardation
or a developmental disability, or the local mental health agency, where
the primary reason the child is at risk of placement relates to any
other mental disability.

* NB Effective until June 30, 2024

* (c) The committee on special education shall request in writing a
designee of the appropriate county or state agency to participate, in
accordance with guidelines established by the department, in any
proceeding of the committee where a child is at risk of residential
placement. The committee shall forward a copy of any such request to the
office for people with developmental disabilities and the office of
mental health. A designee or designees of the agency may participate in
any such proceeding for the purpose of making recommendations concerning
the appropriateness of residential placement and other programs and
placement alternatives, including, but not limited to, community support
services that may be available to the family. Such designee or designees
shall not be considered members of the committee. Such designee or
designees shall include, but not be limited to, representatives of any
agency receiving coordinated children's services initiative funding as
referenced in the aid to localities budget, of a local interagency
coordinating body, of the social services district, the local mental
health agency, or health department, or of the developmental
disabilities service office, as appropriate. The name of such designee
or designees, if any, shall be made available to each committee on
special education in the county. In addition, with the consent of the
parent or other person in parental relationship, the committee may
confer with other appropriate providers of services to identify any
services that may be of benefit to the family based on the family's
identification of or the committee's observation of family services
needs. As used in this chapter, the term "county" means county as
defined in section four thousand one of this title, and the term
"appropriate agency" means one of the following agencies:

(i) a local interagency body capable of performing a multidisciplinary
assessment of the family's community support services needs; or

(ii) if no such agency exists in the locality, any county agency which
is receiving state coordinated children's services initiative funding as
referenced in the aid to localities budget; or

(iii) where neither such agency exists in the locality, either the
area developmental disabilities services office, where the primary
reason the child is at risk of placement relates to mental retardation
or a developmental disability, or the local mental health agency, where
the primary reason the child is at risk of placement relates to any
other mental disability.

* NB Effective June 30, 2024

(d) Nothing in this subparagraph shall be construed to establish an
entitlement to or constitute a determination of eligibility for any such
assessment or services, or to require the school district to pay the
costs of such assessment or services or to require that such services be
reflected in the plan of educational services and programs recommended
or approved for the child, or to limit educational services to be made
available to the child or to justify the denial, reduction, or delay of
such services to the child. No cause of action for damages shall arise
in favor of any person by reason of any failure to comply with the
provisions of this section except upon a showing of gross negligence or
willful misconduct.

(e) Notwithstanding any inconsistent provision of law, residential
schools are authorized to provide temporary care for persons over age
twenty-one who are receiving transitional care as described in section
7.37-a or 13.37-a of the mental hygiene law, or on whose behalf
temporary payments are being made pursuant to sections 7.38 or 13.38 of
the mental hygiene law, where such persons were in the care of the
residential school at the time of their twenty-first birthday and such
persons have remained continuously in the care of the residential school
since their twenty-first birthday.

(f) Notwithstanding any inconsistent provision of law, in any case
where an individual receiving transitional care is about to be
transferred from a residential school to an adult placement, a transfer
plan shall be prepared by the sending facility and forwarded to the
receiving facility, the individual and, unless the individual objects,
the parents, guardian or other family members prior to the transfer. The
transfer plan shall include any information necessary to facilitate a
safe transfer, such as specific problems, a schedule for administering
medications and behavior unique to the individual.

(5) The committee on special education or, in the case of a state
operated school, the multidisciplinary team shall not later than the
annual review prior to the eighteenth birthday of a student with a
disability who is placed in a residential program by the committee or
multidisciplinary team, or a student with a disability who is placed in
a day program but the committee or multidisciplinary team has determined
that the student is likely to require adult residential services, with
the consent of the parents, notify and invite a representative of the
office of mental health, office for people with developmental
disabilities, or the state education department, as appropriate, to
participate in the committee on special education meeting for the
development of a recommendation for adult services pursuant to section
7.37 or 13.37 of the mental hygiene law, section three hundred
ninety-eight-c of the social services law or section forty-four hundred
three of this article. The committee or multidisciplinary team shall
give the parent or guardian of the child, the opportunity to consent in
writing to the release of relevant information to such other public
agency or agencies, upon request of such agency or agencies, for
purposes of determining appropriateness of an adult program for such
student.

(a) For the purposes of this subparagraph "relevant information" shall
be defined as that information in the possession of and used by the
committee or the multidisciplinary team to ascertain the physical,
mental, emotional and cultural-educational factors which contribute to
the student's disability, including but not limited to: (i) results of
physical and psychological examinations performed by private and school
district physicians and psychologists; (ii) relevant information
presented by the parent, guardian and teacher; (iii) school data which
bear on the student's progress including the student's most recent
individualized education program; (iv) results of the most recent
examinations and evaluations performed pursuant to clause (d) of
subparagraph three of this paragraph; and (v) results of other suitable
evaluations and examinations possessed by the committee or
multidisciplinary team. Nothing in this subparagraph shall be construed
to require any committee or multidisciplinary team to perform any
examination or evaluation not otherwise required by law.

(b) Upon consent obtained pursuant to this subparagraph, the committee
or multidisciplinary team shall forward the student's name and other
relevant information in a report to the appropriate public agency as
determined by the committee or multidisciplinary team, based upon the
student's disability and physical, mental, emotional and social needs.
The committee shall forward additional and updated relevant information
to the appropriate public agency upon the request for such information
by such agency, with the consent of the parents, or the student, if such
student is eighteen years or older.

(c) When the committee or multidisciplinary team is notified by the
public agency which received the report that such state agency is not
responsible for determining and recommending adult services for the
child, the committee or multidisciplinary team shall forward the report
to another public agency; or, if the committee or multidisciplinary team
determines that there exists a dispute as to which state agency has the
responsibility for determining and recommending adult services, the
committee or multidisciplinary team may forward the report to the
council on children and families for a resolution of such dispute.

(6) The committee on special education shall provide a copy of the
handbook for parents of children with disabilities established under
subdivision eight of section four thousand four hundred three of this
article or a locally approved booklet for parents of children with
disabilities to the parents or person in parental relationship to a
child as soon as practicable after such child has been referred for
evaluation to the committee on special education.

2. a. The board of education or trustees of each school district shall
be required to furnish suitable educational opportunities for students
with disabilities by one of the special services or programs listed in
subdivision two of section forty-four hundred one of this article. The
need of the individual child 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 students with
disabilities to participate in regular education services when
appropriate. 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 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 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 student, and with prior approval by the commissioner if
required; provided that a student with a 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.

b. (1) Provided, however, that in each school district the board of
education or trustees of such district are hereby authorized and
empowered to contract for such special services or programs as such
board shall deem reasonable and appropriate for such handicapped
children after consideration of the recommendations of the local
committee on special education and the hearing officer if a hearing is
held pursuant to section forty-four hundred four of this chapter and,
where specified in subparagraph two of this paragraph, with the approval
of the commissioner after a finding by him that no appropriate special
services or programs specified in paragraphs a through d and k of
subdivision two of section forty-four hundred one are available.

(2) The board shall select the most reasonable and appropriate special
service or program for such children from those programs specified in
paragraphs a, b, c, e, f, g, h, i, k, l and m of subdivision two of
section forty-four hundred one of this article upon receipt of the
recommendation of the committee on special education. All contracts with
schools pursuant to the provisions of paragraphs d, e, f, g, h, l and m
of subdivision two of section forty-four hundred one of this article
shall be subject to the approval of the commissioner. All contracts
under paragraph c of subdivision two of section forty-four hundred one
shall be made in accordance with the provisions of subdivision four of
section nineteen hundred fifty of this chapter. No child shall be placed
in a residential school nor shall a board recommend placement in a
residential facility specified in paragraph j of subdivision two of
section forty-four hundred one unless there is no appropriate
nonresidential school available consistent with the needs of the child.
The board shall provide written notice of its determination to the
parent or legal guardian of such child. If the determination of the
board of education is not consistent with the recommendations of the
committee on special education, such notice shall include the statement
of the reasons for such determination which shall identify the factors
considered by the committee on special education in its evaluation.

(3) If the board cannot secure an appropriate special service within
the state or non-residential program to meet the needs of the child, it
shall notify the commissioner.

c. Nothing in this section shall be deemed or construed to prohibit a
committee on special education from recommending a special service or
program specified in paragraph d of subdivision two of section
forty-four hundred one of this chapter or to diminish the power of the
commissioner to make appointments pursuant to such paragraph.

* d. 1. Notwithstanding any provision of law, rule or regulation to
the contrary, the board of education or trustees of a school district,
except a city school district in a city with a population of one million
or more inhabitants may, upon written notice to the commissioner in
compliance with subparagraph two of this paragraph and parental
notification, for the remainder of the school year exceed the standards
established in regulation for special education class sizes for middle
and secondary school students as defined by the commissioner for
purposes of this section by no more than a twenty percent increase above
such standards, provided that the district is in compliance with such
standards at the start of classes in September of the school year, and
further provided that a city school district in a city with a population
of one hundred twenty-five thousand or more and less than one million
inhabitants shall have the option of either increasing maximum class
sizes in any school year pursuant to this section or establishing class
sizes for special classes for certain students with disabilities in
accordance with the provisions of subdivision six of this section.

2. The notice shall be on a form prescribed by the commissioner, and
shall sufficiently demonstrate educational justification and consistency
with continuing an appropriate education for all children affected. The
commissioner may revoke or preempt any increase in class size upon a
finding that increasing class size as proposed would fail to be
consistent with appropriate special education.

* NB Repealed July 1, 2024

3. Each school district shall make available a register of public or
private agencies and other professional resources within the county from
which a parent or person in parental relationship may obtain an
independent evaluation of the child.

4. a. The board of education or the board of trustees of each school
district shall provide suitable transportation to and from special
classes or programs, with the exception of residential facilities for
the care and treatment of children with handicapping conditions under
the jurisdiction of an agency of the state other than the state
department of education, as specified in subdivisions two and four of
section forty-four hundred one of this article.

b. Such board may permit any adult, willing to serve without
compensation, to act as an attendant for such children.

c. Such board shall be empowered to contract for transportation
services provided pursuant to this subdivision with any municipality,
Board of Cooperative Educational Services, public authority or private
contractor meeting the school bus provisions outlined in section
thirty-six hundred twenty-three of this chapter and the standards and
specifications relating thereto.

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 with a handicapping condition
attends if such child has been so identified by the local committee on
special education and such child attends such school for the purpose of
receiving services or programs similar to special educational programs
recommended for such child by the local committee on special education.

5. Notwithstanding any provisions of this article to the contrary or
the provisions of section thirty-two hundred two of this chapter, a
child with a handicapping condition who reaches the age of twenty-one
during (a) the period commencing with the first day of July and ending
on the thirty-first day of August shall if otherwise eligible, be
entitled to continue in a July and August program until the thirty-first
day of August or until the termination of the summer program, whichever
shall first occur; or (b) the period commencing on the first day of
September and ending on the thirtieth day of June shall be entitled to
continue in such program until the thirtieth day of June or until the
termination of the school year, whichever shall first occur.

6. Notwithstanding any other law, rule or regulation to the contrary,
the board of education of a city school district with a population of
one hundred twenty-five thousand or more inhabitants shall be permitted
to establish maximum class sizes for special classes for certain
students with disabilities in accordance with the provisions of this
subdivision. For the purpose of obtaining relief from any adverse fiscal
impact from under-utilization of special education resources due to low
student attendance in special education classes at the middle and
secondary level as determined by the commissioner, such boards of
education shall, during the school years nineteen hundred
ninety-five--ninety-six through June thirtieth, two thousand
twenty-four, be authorized to increase class sizes in special classes
containing students with disabilities whose age ranges are equivalent to
those of students in middle and secondary schools as defined by the
commissioner for purposes of this section by up to but not to exceed one
and two tenths times the applicable maximum class size specified in
regulations of the commissioner rounded up to the nearest whole number,
provided that in a city school district having a population of one
million or more, classes that have a maximum class size of fifteen may
be increased by no more than one student and provided that the projected
average class size shall not exceed the maximum specified in the
applicable regulation, provided that such authorization shall terminate
on June thirtieth, two thousand. Such authorization shall be granted
upon filing of a notice by such a board of education with the
commissioner stating the board's intention to increase such class sizes
and a certification that the board will conduct a study of attendance
problems at the secondary level and will implement a corrective action
plan to increase the rate of attendance of students in such classes to
at least the rate for students attending regular education classes in
secondary schools of the district. Such corrective action plan shall be
submitted for approval by the commissioner by a date during the school
year in which such board increases class sizes as provided pursuant to
this subdivision to be prescribed by the commissioner. Upon at least
thirty days notice to the board of education, after conclusion of the
school year in which such board increases class sizes as provided
pursuant to this subdivision, the commissioner shall be authorized to
terminate such authorization upon a finding that the board has failed to
develop or implement an approved corrective action plan.

7. a. The board of education or trustees of each school district and
the board of trustees of each charter school shall adopt a policy to
ensure that each regular education teacher, special education teacher,
related service provider, and other service provider who is responsible
for the implementation of a student's individualized education program
shall be given a copy of such student's individualized education program
prior to the implementation of such program or shall be able to access
such student's individualized education program electronically;
provided, however, if the policy provides that the student's
individualized education program is to be accessed electronically, then
such policy shall also ensure that the individuals responsible for the
implementation of a student's individualized education program shall be
notified and trained on how to access such individualized education
programs electronically.

b. Such policy shall require that any copy of a student's
individualized education program provided pursuant to this subdivision
shall remain confidential and shall not be redisclosed to any other
person, in compliance with federal and state laws and regulations,
including the Individuals with Disabilities Education Act and the Family
Educational Rights and Privacy Act.

c. Such policy shall require the chair of the committee on special
education to designate a professional employee of the school district
with knowledge of the student's disability and education program to,
prior to the implementation of the individualized education program,
inform each teacher, assistant and support staff person of his or her
responsibility relating to the implementation of the individualized
education program and the specific accommodations, modifications, and
supports that must be provided for the student in accordance with the
individualized education program.

8. Upon their child's enrollment or attendance in a public school,
such school shall notify every parent or person in parental relation of
their rights regarding referral and evaluation of their child for the
purposes of special education services or programs pursuant to
applicable federal and state laws. Such notification may be provided by
directing parents or persons in parental relation to obtain information
located on the department's website relating to a parent's guide to
special education in New York state for children ages three through
twenty-one provided the notification shall also contain the name and
contact information for the chairperson of the school district's
committee on special education or other individual who is charged with
processing referrals to the committee in the district.