NY Educ L § 4410 (2021)
2021 New York Laws EDN - Education Title 6 - Special Schools and Instruction Article 89 - Children With Handicapping Conditions 4410 - Special Education Services and Programs for Preschool Children With Handicapping Conditions.

§ 4410. Special education services and programs for preschool children with handicapping conditions. 1. Definitions. As used in this section:   a. "Approved evaluator" means either:  (1)  a program approved by the commissioner pursuant to paragraph b of subdivision nine of this section; or  (2) a school  district  or  group  of  appropriately  licensed  and/or certified  professionals  associated  with  a  public  or private agency approved by the commissioner pursuant  to  subdivision  nine-a  of  this section.   b.  "Approved  program"  means  a program approved by the commissioner pursuant to paragraph a of subdivision nine of this section.   c. "Board" means:  (i) a board of education as defined in section two of this chapter; or  (ii) trustees of a  common  school  district  as  defined  in  section sixteen hundred one of this chapter.   d. "City or county official" means the chief executive officer, or, in any  county  which  does  not have a chief executive officer, the county governing body, or the mayor of the city of New York.   e. "Committee" means committee on preschool special education.   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 receiving services under section two hundred thirty-six  of  the  family court act or its successor 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 pursuant to this section.   g.  "Municipality"  means a county outside the city of New York or the city of New York in the case of a county contained within  the  city  of New York.   h. "Parent" means parent or person in parental relation.   i.  "Preschool  child"  means  a child with a disability as defined in section forty-four hundred one of this article who is first eligible for services as defined in paragraph f of this subdivision but who will  not have  become five years of age on or before December first of the school year, or a later date  if  a  board  establishes  such  later  date  for eligibility  to attend school. A child shall be deemed a preschool child through the month of August of the school year in which the child  first becomes eligible to attend school pursuant to section thirty-two hundred two of this chapter.   j.  "Related  services" means those services as defined in paragraph k of subdivision two of section forty-four hundred  one  of  this  article provided  to  a  preschool  child  at  a  site  determined by the board, including but not limited to an approved or licensed prekindergarten  or head  start  program; the work site of the provider; the child's home; a hospital; a state facility; or a  child  care  location  as  defined  in paragraph  a  of  subdivision  eight  of  this  section.  If  the  board determines that documented medical or special  needs  of  the  preschool child indicate that the child should not be transported to another site, the child shall be entitled to receive related services in the preschool child's home.   k.  "Special  education  itinerant services" means an approved program provided by a certified special education teacher on an itinerant  basis in  accordance  with  the  regulations  of  the  commissioner, at a site determined by the board, including but not limited  to  an  approved  or licensed  prekindergarten  or  head  start  program; the child's home; a hospital; a state facility; or a  child  care  location  as  defined  in  paragraph  a  of  subdivision  eight  of  this  section.  If  the  board determines that documented medical or special  needs  of  the  preschool child indicate that the child should not be transported to another site, the  child  shall  be  entitled  to  receive special education itinerant services in the preschool child's home.   2. Provision of services. The board of each school district  shall  be responsible for the provision of special education services and programs to  preschool  children in accordance with the provisions of subdivision two of section four thousand four hundred one of this article, except as otherwise limited by regulations of the commissioner; provided, however, that prior to July first, nineteen hundred ninety-one, a board shall  be responsible for the provision of special education services and programs to  a  preschool  child  only  to  the  extent that there is an approved program available for such preschool children.   3. Committee on preschool special education. a. Each such board  shall establish  one or more committees to conduct meetings to develop, review and revise the individualized education program  of  a  preschool  child with a disability.   * (1)  Such  board  shall ensure that such committee is composed of at least the following members: (i) the parents  of  the  preschool  child; (ii) a regular education teacher of such child, whenever the child is or may be participating in a regular education environment; (iii) a special education  teacher  of the child or, if appropriate, a special education provider of the child; (iv) an appropriate professional employed by  the school  district who is qualified to provide, or supervise the provision of, special education, who is knowledgeable about the general curriculum of the  school  district  and  the  availability  of  preschool  special education  programs  and  services  and  other  resources  in the school district and the municipality, and who shall serve as chairperson of the committee; (v) an additional parent of a child  with  a  disability  who resides  in  the  school  district  or a neighboring school district and whose child is enrolled in a preschool  or  elementary  level  education program,  provided  that  such  parent shall not be employed by or under contract with the school district or municipality, and provided  further that  such  additional  parent shall not be a required member unless the parents, or a member of the committee on  preschool  special  education, request  that  such  additional  parent member participate in accordance with this  subparagraph;  (vi)  an  individual  who  can  interpret  the instructional  implications  of  evaluation  results, provided that such individual may be the member appointed pursuant to clause  (ii),  (iii), (iv) or (vii) of this subparagraph where such individuals are determined by  the  school  district  to have the knowledge and expertise to do so; (vii) such other persons having knowledge  or  expertise  regarding  the child  as  the  board  or  the  parents  shall  designate, to the extent required under federal law; and for a child in transition from  programs and  services  provided  pursuant to applicable federal laws relating to early intervention services, at the request of the parent or  person  in parental  relation to the child, the appropriate professional designated by the agency that has been charged  with  the  responsibility  for  the preschool  child  pursuant to said applicable federal laws. In addition, the chief executive officer of the municipality of the preschool child's residence  shall  appoint  an  appropriately   certified   or   licensed professional  to  the  committee.  Attendance  of  the  appointee of the municipality shall not be required for a quorum. The  additional  parent need  not  be in attendance at any meeting of the committee on preschool 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  or  a  member  of  the  committee  on  preschool  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.   * NB Effective until June 30, 2024   * (1) Such board shall ensure that such committee is  composed  of  at least  the  following  members:  (i) the parents of the preschool child; (ii) a regular education teacher of such child, whenever the child is or may be participating in a regular education environment; (iii) a special education teacher of the child or, if appropriate, a  special  education provider  of the child; (iv) an appropriate professional employed by the school district who is qualified to provide, or supervise the  provision of, special education, who is knowledgeable about the general curriculum of  the  school  district  and  the  availability  of  preschool special education programs and  services  and  other  resources  in  the  school district and the municipality, and who shall serve as chairperson of the committee;  (v)  an  additional  parent of a child with a disability who resides in the school district or  a  neighboring  school  district  and whose  child  is  enrolled  in a preschool or elementary level education program, provided that such parent shall not be  employed  by  or  under contract  with the school district or municipality, and provided further that such additional parent shall  not  be  a  required  member  if  the parents request that such additional parent member not participate; (vi) an  individual  who  can  interpret  the  instructional  implications of evaluation results, provided that such  individual  may  be  the  member appointed  pursuant  to  clause  (ii),  (iii),  (iv)  or  (vii)  of this subparagraph  where  such  individuals  are  determined  by  the  school district  to have the knowledge and expertise to do so; (vii) such other persons having knowledge or expertise regarding the child as  the  board or  the  parents  shall  designate, to the extent required under federal law; and for a child in transition from programs and  services  provided pursuant  to  applicable  federal  laws  relating  to early intervention services, the appropriate professional designated by the agency that has been charged with the responsibility for the preschool child pursuant to said applicable federal laws. In addition, the chief  executive  officer of  the municipality of the preschool child's residence shall appoint an appropriately certified  or  licensed  professional  to  the  committee. Attendance  of  the  appointee of the municipality shall not be required for a quorum.   * NB Effective June 30, 2024  (2) At least five business days prior to a meeting of the committee on preschool special education notice of such meeting  shall  be  given  to each  committee member, including the appointee of the municipality, and the parent of the preschool child,  in  writing  by  first  class  mail, postage   prepaid,   telefacsimile,   or   by   personal   service.  The appropriately licensed  or  certified  professional  designated  by  the agency  that  has been charged with the responsibility for the preschool child pursuant to applicable federal laws relating to early intervention services shall attend all meetings of the committee conducted  prior  to the  child's  initial  receipt of services pursuant to this section. The regular  education  teacher  of  the  child  shall  participate  in  the development,  review and revision of an individualized education program for the child to the extent required under federal law. A member of such committee shall be considered as a member  of  a  committee  on  special education  for  the  purposes  of section thirty-eight hundred eleven of this chapter.    * (3) Notwithstanding any provision of law, rule or regulation to  the contrary,  a  member  of  the  committee on preschool special education, other than the parents or persons in parental relation to the student or the appointee of the municipality, 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   * (4) Notwithstanding any provision of law, rule or regulation to  the contrary,  a  member  of  the  committee on preschool special education, other than the parents or persons in parental relation to the student or the appointee of the municipality,  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   * (5)  Requests  for excusal of a member of the committee on preschool special education as provided for in subparagraphs  three  and  four  of this  paragraph,  and  the written input as provided for in subparagraph four of this paragraph, 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 committee on preschool education 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   * (6) Notwithstanding any other provision of law, rule  or  regulation 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 preschool 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:  (i)  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  (ii)  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 dominant 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.  (iii) 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 committee on preschool special education 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 clause  shall not affect the requirement that the committee on preschool special education review the individualized  education  program  at  the annual meeting, or more often if necessary.   * NB Repealed June 30, 2024   b.   Two   or  more  boards  may,  subject  to  the  approval  of  the commissioner, establish a joint committee. Boards seeking  to  establish such a joint committee shall apply to the commissioner for approval on a form prescribed by the commissioner. Such application shall include, but not  be  limited  to,  a  plan for holding meetings in a manner and at a location convenient for parents.   c.  A  municipality  with  one  or  more  boards  located  within  the municipality may coordinate the scheduling and location of meetings with the  prior  consent  of  such  board  or  boards and the approval of the commissioner.   d. The committee shall review, at least annually, the status  of  each preschool child.   e.  In  any  meeting held to review or evaluate a preschool child, the preschool child's parent shall be given the opportunity  to  attend  and participate  in  the  meeting.  The  committee  shall permit individuals invited by the parent to be present. To the extent possible, any meeting of the committee shall be held at a  site  mutually  convenient  to  the members  of  the  committee  and  the  parent  of  the  preschool child, including but not limited  to  the  work  site  of  the  evaluator,  the municipal  representative  on  the  committee, or the chairperson of the committee. In a city having a population of less than two hundred  fifty thousand  but  more  than  two  hundred  thousand and in a city having a population of less than one hundred seventy-five thousand but more  than one  hundred  fifty  thousand,  the  chairperson  of the committee shall determine the location of the meeting.   f. After notification by a service coordinator, as defined in  section twenty-five  hundred  forty-one  of  the public health law, that a child receiving services pursuant to title II-A of article twenty-five of  the public  health  law  potentially  will  transition to receiving services under this section and that a conference is to be convened to review the child's  program  options  and  establish  a  transition   plan,   which conference  must  occur  at least ninety days before such child would be eligible for  services  under  this  section,  the  chairperson  of  the committee on preschool special education of the local school district or  his or her designee in which such child resides shall participate in the conference.   g.  In  any  meeting of the committee held to review or reevaluate the status of a preschool child, the professional who  participated  in  the evaluation  shall,  upon  the request of the parent or committee, attend and participate at such meeting.   4. Evaluations. a. The  board  shall  identify  each  preschool  child suspected  of  having  a  handicapping  condition who resides within the district and, upon referral to the committee shall, with the consent  of the   parent,  provide  for  an  evaluation  related  to  the  suspected disability of the child. The board shall  make  such  identification  in accordance with regulations of the commissioner.   b.   Each   board   shall,  within  time  limits  established  by  the commissioner, be responsible for providing the  parent  of  a  preschool child  suspected  of  having  a  handicapping  condition  with a list of approved evaluators in the geographic area. The parent  may  select  the evaluator from such list.  Each board shall provide for dissemination of the list and other information to parents at appropriate sites including but  not  limited to pre-kindergarten, day care, head start programs and early childhood  direction  centers,  pursuant  to  regulations  of  the commissioner.   c.  The  documentation  of the evaluation shall include all assessment reports and a summary report of the findings of the evaluation on a form prescribed by the commissioner including a  detailed  statement  of  the preschool  child's  individual  needs. The summary report shall not make reference to any specific provider of special services or  programs.  In addition,  with  the  consent  of  the  parents, approved evaluators and committees shall be provided with the most recent evaluation report  for a  child  in  transition from programs and services provided pursuant to title two-a of article twenty-five of the  public  health  law.  Nothing shall  prohibit  an  approved  evaluator or the committee from reviewing other assessments or evaluations to determine  if  such  assessments  or evaluations   fulfill   the  requirements  of  the  regulations  of  the commissioner.  Notwithstanding  any  inconsistent  provisions  of   this section,  the  committee, in its discretion, may obtain an evaluation of the  child  from  another  approved  evaluator  prior  to   making   any recommendation  that  would  place  a child in the approved program that conducted the evaluation of  the  child.  If  the  committee  recommends placing a child in an approved program that also conducted an evaluation of  such  child  it  shall indicate in writing that such placement is an appropriate one for the child. In addition, the committee shall  provide notice to the commissioner of such recommendation.   d.   The   approved  evaluator  shall,  following  completion  of  the evaluation, transmit the documentation of the evaluation to all  members of the committee and to a person designated by the municipality in which the preschool child resides. Each municipality shall notify the approved evaluators  in  the  geographic  area  of  the person so designated. The summary report of the evaluation shall be  transmitted  in  English  and when  necessary,  also  in  the  dominant  language  or  other  mode  of communication of the parent; the documentation of the  evaluation  shall be  transmitted  in English and, upon the request of the parent, also in the dominant language or other mode  of  communication  of  the  parent, unless not clearly feasible to do so pursuant to regulations promulgated by  the  commissioner.  Costs  of  translating  the  summary  report and documentation of the evaluation  shall  be  separately  reimbursed.  If, based  on  the  evaluation,  the  committee  finds  that  a  child has a handicapping condition, the committee shall use the documentation of the evaluation to  develop  an  individualized  education  program  for  the  preschool  child.  Nothing  herein  shall prohibit an approved evaluator from at any time providing the parent with a copy of  the  documentation of the evaluation provided to the committee.   e.  Prior  to  the  committee  meeting  at  which  eligibility will be determined, the committee shall provide the parent with a  copy  of  the summary  report of the findings of the evaluation, and shall provide the parent with written notice of the opportunity to address  the  committee in  person  or  in  writing.  Upon  timely  request  of  the parent, the committee shall, prior  to  meeting,  provide  a  copy  of  all  written documentation to be considered by the committee; provided, however, that such material shall be provided to the parent at any time upon request.   f.  If the parent disagrees with the evaluation, the parent may obtain an additional evaluation at public expense to the extent  authorized  by federal law or regulation.   5.  Determination  of  services.  a.  The  committee  shall review all relevant information, including but not limited to:  (i) information presented by the parent and  the  child's  teacher  or teachers  pertinent  to  each  child  suspected of having a handicapping condition;  (ii) the results of all evaluations; and  (iii) information provided by the appropriate  licensed  or  certified professional   designated  by  the  agency  that  is  charged  with  the responsibility for the child pursuant to  applicable  federal  laws,  if any.   b.  (i)  If  the committee determines that the child has a disability, the committee shall recommend approved appropriate services  or  special programs  and  the  frequency,  duration and intensity of such services, including but not limited to the appropriateness of single  services  or half-day  programs based on the individual needs of the preschool child. The committee shall first consider the appropriateness of providing: (i) related services only; (ii) special education itinerant  services  only; (iii)  related  services in combination with special education itinerant services; (iv) a half-day program, as defined in the regulations of  the commissioner;  (v)  a full day program; in meeting the child's needs. If the committee determines that the child  demonstrates  the  need  for  a single  related  service,  such  service  shall be provided as a related service only or, where appropriate, as  a  special  education  itinerant service.  Prior  to  recommending  the  provision  of  special education services in a  setting  which  includes  only  preschool  children  with disabilities,  the  committee  shall  first  consider  providing special education services in a setting  which  includes  age-appropriate  peers without  disabilities.  Provision  of  special  education  services in a setting with no regular contact with such age-appropriate peers shall be considered only when the nature or severity of the child's disability is such that education in a less restrictive environment with  the  use  of supplementary  aids  and services cannot be achieved satisfactorily. The committee's recommendation shall include a statement of the reasons  why less  restrictive  placements  were  not  recommended. The committee may recommend placement in a program that uses psychotropic  drugs  only  if the  program  has a written policy pertaining to such use and the parent is given a copy of such written policy at the time  such  recommendation is made.  (ii)  The  committee  shall recommend approved appropriate services or special programs. The recommendation shall be based  on  the  individual needs  of  the  preschool child. Appropriate services may include one or more related services selected from a list maintained by a  municipality pursuant  to  paragraph c of subdivision nine of this section; provided, however, that if the committee recommends one or more  related  services  from  such list, or itinerant services, the committee shall request that the parent identify the initial child  care  location  arranged  by  the parent, or other site, at which each such service will be provided.  (iii)  The  reasons  for  such  recommendation shall be in writing and shall be furnished to the preschool child's parent, the municipality  in which  the  preschool  child  resides  and the board. If the committee's recommendation differs from an expressed preference  of  a  parent  with respect  to  the  frequency,  duration or intensity of services, or with respect to more  or  less  restrictive  settings,  the  committee  shall include  in  its  statement  the reasons why the committee recommended a program or  service  other  than  that  preferred  by  the  parent.  The committee   shall   include  in  its  recommendation  any  statement  or statements provided by the parent, which the board shall consider.  (iv) 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 his or her respective school district who, acting reasonably and in good faith, provides such information shall not be liable for such action.   c. After consideration of the recommendation of the committee and  its statement  of reasons, including any statement or statements of a parent setting forth an expressed preference, the board shall arrange  for  the provision of the recommended special services or programs from among the special   services  and  programs  approved  for  such  purpose  by  the commissioner. In the event  the  special  service  or  program  will  be provided  in  the  child's  home  or  another care setting for which the parent has made or subsequently makes  arrangements,  no  transportation shall be indicated.   d. If the board disagrees with the recommendation of the committee, it shall  set  forth  in  writing  a  statement of its reasons and send the recommendation back to  the  committee,  a  notice  of  which  shall  be furnished  to the preschool child's parent and the municipality in which the  preschool  child  resides.  In  the  event  a  board   refers   the recommendation  back  to  the  committee  for reconsideration, the board shall also notify the parent and the committee in writing of the need to schedule a meeting to ensure timely placement. If the  determination  is for two or more related services, where possible, the board shall select from  the list maintained by the municipality pursuant to paragraph c of subdivision nine of this section such related service providers that are employed by a single agency for the  provision  of  such  services.  The board  shall  provide  each  related service provider with a copy of the individualized education program and  the  name  and  location  of  each related  service  provider. The board shall designate one of the service providers to coordinate the provision of the related  services.  If  the determination  is  for  special  education itinerant services and one or more related services, the special education itinerant service  provider shall  be  responsible for the coordination of such services pursuant to regulations of the commissioner.   * e. A preschool  child  shall  receive  the  services  of  a  program arranged  for  by  the  board commencing with the starting date for such program, unless such services are recommended by the committee less than thirty days prior to, or after, the starting date for such  program,  in which  case,  such  services  shall  be  provided  as  soon  as possible following development of the individualized education  program,  but  no later  than  thirty  days  from  the  recommendation  of  the committee;  provided, however, that in no case shall a child receive services  prior to  the  date that such child is first eligible for services pursuant to paragraph f of subdivision one of this section.   * NB Effective until June 30, 2024   * e.  A  preschool  child  shall  receive  the  services  of a program arranged for by the board commencing with the  starting  date  for  such program, unless such services are recommended by the committee less than thirty  days  prior to, or after, the starting date for such program, in which case, such services shall be provided no later  than  thirty  days from  the recommendation of the committee; provided, however, that in no case shall a child receive services prior to the date that such child is first eligible for services pursuant to paragraph f of  subdivision  one of this section.   * NB Effective June 30, 2024   f.  The  board  shall  give  written notice of the special services or programs arranged for  to  the  appropriate  municipality,  and  to  the related service provider or the approved program selected to provide the services. The municipality shall contract with the approved program in a timely  manner but in no event later than forty days from the receipt of written notice of the determination of the board. If the municipality is a city of one million or more persons,  the  municipality  may  delegate contracting  authority  to the board. The contract shall include but not be limited to any provisions required by the commissioner, shall  adhere to  the rates established pursuant to subdivision ten of this section as applicable and shall be in a form approved by  the  commissioner.  After receipt of notification from a municipality of actions taken pursuant to this  paragraph  and subdivision eight of this section, the commissioner shall  issue  a  notice  of  authorization  for  reimbursement  to   the municipality  pursuant  to the provisions of subdivisions ten and eleven of this section. Provided  further,  any  agreement  for  transportation services  pursuant  to  subdivision  eight  of  this  section shall be a contract, separate and distinct from the contract for  special  services or  programs  pursuant to this section, between the municipality and the approved  program  which  shall  include  but  not  be  limited  to  any provisions  required  by  the  commissioner  on a form prescribed by the commissioner.   g. The board shall determine the appropriate municipality based on the municipality within the school district in  which  the  preschool  child resides   at   the   time  such  board  issues  its  written  notice  of determination. The board shall terminate such determination if the board arranges for the provision of a new service or program for such child or if the preschool child moves out of the school district or  moves  to  a different   municipality  within  the  school  district.  If  the  board terminates such determination for a preschool child because  such  child moves to a different municipality within the school district, such board shall  issue  a new written notice of determination for the same special education service or program effective the next school day  which  shall become  the  responsibility  of the new municipality in which such child resides. Pursuant to regulations promulgated by the commissioner, if the preschool child moves to a school district that is within  a  reasonable distance  of  the  child's  current  approved  placement  such child may continue in such placement if it is consistent with  the  individualized needs  of the child and the board of the new school district shall issue a notice of determination to  continue  such  placement,  provided  that nothing  shall  preclude a parent from requesting and receiving from the committee of the new school district a  reevaluation  of  the  continued placement   of   such   preschool  child  prior  to  the  annual  review establishing the placement for the next school year.    h. Such special services or programs shall be  furnished  between  the months  of  September  and June of each year, except for those preschool children whose disabilities are severe enough to exhibit the need for  a structured  learning  environment  of  twelve months duration to prevent substantial   regression.   The   committee   shall   include   in   its recommendation for such services or programs a statement of the  reasons for   such   recommendation.  The  board,  after  consideration  of  the recommendation of the committee, shall  select  an  appropriate  special service  or  program  for each preschool child eligible for such special service or program during the months of July and August from among those programs  approved  for  such  purpose  by  the  commissioner.   Nothing contained  herein  shall  be  construed  to  prevent  the committee from recommending or the board from selecting a special service  or  program, or  the  frequency or duration of a special service or program, which is different in type or intensity than the  service  or  program  that  the child is furnished between the months of September and June.   6.  Professional practice issues. a. Notwithstanding any provisions of law to the contrary, approved programs  operated  by  private  providers shall  be  authorized  to employ licensed professionals or contract with licensed  professionals  or  entities  legally  authorized  to   provide professional  services  in  accordance  with  section sixty-five hundred three-b of this chapter.   b. An approved program may be formed as an education  corporation,  or with   the   consent  of  the  commissioner  as:  (i)  a  not-for-profit corporation; (ii) a business corporation that has the  operation  of  an approved  program  or  another  special  education  school  as a primary purpose; (iii) a limited liability company; (iv) a professional  service limited  liability  company  or  a  foreign professional service limited liability company  in  accordance  with  the  applicable  provisions  of article  twelve  or thirteen of the limited liability company law; (v) a registered limited liability partnership or registered  foreign  limited liability   partnership  in  accordance  with  article  eight-B  of  the partnership law. In addition,  a  group  of  appropriately  licensed  or certified  professionals  may  be  formed  as  a  professional  services corporation established pursuant to  article  fifteen  of  the  business corporation  law or as a professional service limited liability company, foreign professional service limited  liability  company  or  registered limited  liability  partnership  or registered foreign limited liability partnership in accordance with article eight-B of the  partnership  law. An  approved  program  formed  as  such  a  professional service limited liability company or registered limited  liability  partnership  may  be authorized  to  provide  special  education  itinerant services or other educational services not involving the practice of  a  profession  under title  eight  of  this  chapter, and, upon grant of a waiver pursuant to section sixty-five hundred  three-b  of  this  chapter,  may  employ  or contract  with individuals licensed or otherwise authorized to practice, or with a professional service corporation, partnership or other  entity legally  authorized to practice any profession under title eight of this chapter  in  which  the  entity  would  not  be  authorized  to  provide professional  services under the applicable provisions of section twelve hundred three or subdivision (a) of section thirteen hundred one of  the limited  liability  company  law or sections 121-1500 or 121-1502 of the partnership law, provided that such contract is within the scope of  the department's  approval  and  is  only  for  the  purpose of conducting a multi-disciplinary evaluation of a preschool child suspected of having a disability or a preschool child with a disability or  providing  related services   specified  in  the  individualized  education  program  of  a preschool child with a disability.    c. Notwithstanding any other provision of law  to  the  contrary,  the exemption in subdivision two of section eighty-two hundred seven of this chapter  shall  apply  to  persons  employed  by  a center-based program approved pursuant to subdivision nine of this  section  to  perform  the duties  of  a  speech-language  pathologist, audiologist, teacher of the speech and deaf and hard of hearing or teacher of the deaf  to  students enrolled  in  such  approved center-based program in the course of their employment.   * d. Notwithstanding any other provision of law to the  contrary,  the exemption in subdivision one of section seventy-six hundred five of this chapter  shall  apply  to  persons  employed on a full-time or part-time salary basis, which may include on an hourly, weekly, or monthly  basis, or  on  a fee for evaluation services basis provided that such person is employed by and under the dominion and control of a center-based program approved pursuant to subdivision nine of this  section  as  a  certified school psychologist to provide activities, services and use of the title psychologist to students enrolled in such approved center-based program; and  to  certified  school  psychologists  employed  on  a  full-time or part-time salary basis, which may  include  on  an  hourly,  weekly,  or monthly  basis,  or on a fee for evaluation services basis provided that the school psychologist is  employed  by  and  under  the  dominion  and control  of  a program that has been approved pursuant to paragraph b of subdivision nine of this section, or subdivision nine-a of this section, to conduct a multi-disciplinary evaluation of a preschool  child  having or suspected of having a disability where authorized by paragraph a or b of  subdivision  six  of  section  sixty-five  hundred  three-b  of this chapter; and to certified school psychologists employed on  a  full-time or  part-time  salary  basis, which may include on an hourly, weekly, or monthly basis, or on a fee for evaluation services basis  provided  that such  psychologist  is employed by and under the dominion and control of an agency approved in accordance with title two-A of article twenty-five of  the  public  health  law  to  deliver  early  intervention   program multidisciplinary  evaluations,  service coordination services and early intervention program services, where authorized by paragraph a or  b  of subdivision  six  of section sixty-five hundred three-b of this chapter, each in the course of their employment. Nothing in this section shall be construed to authorize a certified school psychologist or group of  such school  psychologists  to  engage  in  independent  practice or practice outside of an employment relationship.   * NB Effective until June 30, 2022   * d. Notwithstanding any other provision of law to the  contrary,  the exemption in subdivision one of section seventy-six hundred five of this chapter  shall  apply  to  persons  employed  by  a center-based program approved pursuant to subdivision  nine  of  this  section  as  a  school psychologist  to  provide  activities,  services  and  use  of the title psychologist to students enrolled in such approved center-based  program in the course of their employment.   * NB Effective June 30, 2022   7.  Appeals. * a. The parent may file a written request with the board for an impartial hearing with respect to  any  matter  relating  to  the identification,  evaluation or educational placement of, or provision of a free appropriate  public  education  to,  the  preschool  child  or  a manifestation  determination  or  other matter relating to the preschool child's placement upon discipline,  provided,  however,  that  mediation shall  be  available  to  the  parent  in accordance with the procedures specified in section forty-four hundred four-a of this article.   * NB Effective until June 30, 2024    * a. If the determination of  the  board  is  not  acceptable  to  the parent,  or if the committee or board fails to make or effectuate such a recommendation  within  such  periods  of  time  as  are   required   by subdivision   five  of  this  section  or  by  the  regulations  of  the commissioner,  such parent may file a written request with the board for an  impartial  hearing,  provided,  however,  that  mediation  shall  be available  to  the parent in accordance with the procedures specified in section forty-four hundred four-a of this article.   * NB Effective June 30, 2024   * b. Upon receipt of such request,  the  board  shall  provide  for  a hearing to be conducted in accordance with the provisions of subdivision one  of  section  forty-four hundred four of this article. The impartial hearing officer shall render a decision, and mail a copy of the decision to the parents and to the board, not later  than  thirty  calendar  days after  the  receipt by the board of a request for a hearing or after the initiation of such a hearing by the board. The decision of the impartial hearing officer shall be based solely upon the record of the  proceeding before  the  impartial  hearing officer, and shall set forth the reasons and the factual basis for the determination.  The  decision  shall  also include  a  statement advising the parents and the board of the right to obtain a review of such a decision by a state review officer. The  board may  initiate  a  hearing  to  the extent provided in subdivision one of section forty-four hundred four of this article.   * NB Effective until June 30, 2024   * b. Upon receipt of such request,  the  board  shall  provide  for  a hearing to be conducted in accordance with the provisions of subdivision one  of  section  forty-four hundred four of this article. The impartial hearing officer shall render a decision, and mail a copy of the decision to the parents and to the board, not later  than  thirty  calendar  days after  the  receipt by the board of a request for a hearing or after the initiation of such a hearing by the board. The decision of the impartial hearing officer shall be based solely upon the record of the  proceeding before  the  impartial  hearing officer, and shall set forth the reasons and the factual basis for the determination.  The  decision  shall  also include  a  statement advising the parents and the board of the right to obtain a review of such a decision by a state review officer.   * NB Effective June 30, 2024   * c. During the pendency of an appeal pursuant  to  this  subdivision, unless the board and the parent otherwise agree:  (i)   a   preschool  child  who  has  received  services  pursuant  to subdivision  five  of  this  section,  shall  remain  in   the   current educational placement; or  (ii)  a preschool child not previously served pursuant to this section shall, if the parent agrees, receive services in the program  designated by  the  board  pursuant  to  such  subdivision  five, which designation resulted in such appeal.   A preschool child who is transitioning from part C of the  individuals with   disabilities   education   act  and/or  title  two-A  of  article twenty-five of the public health law  and  is  no  longer  eligible  for services  under  part  C  and  title two-A of article twenty-five of the public health law by reason of age, the school district or other  public agency  is  not required to provide the services that the child had been receiving under part C and such title  two-A.  If  the  child  is  found eligible  for  special  education programs and services pursuant to this section, and the parent or person in parental relation consents  to  the initial  provision of services, then the school district or other public agency shall provide those special education programs and services  that  are  not  in dispute between the parent and the school district or other public agency.   * NB Effective until June 30, 2024   * c.  During  the  pendency of an appeal pursuant to this subdivision, unless the board and the parent otherwise agree:  (i)  a  preschool  child  who  has  received  services   pursuant   to subdivision   five   of  this  section,  shall  remain  in  the  current educational placement; or  (ii) a preschool child not previously served pursuant to this  section shall,  if the parent agrees, receive services in the program designated by the board  pursuant  to  such  subdivision  five,  which  designation resulted in such appeal; or  (iii)  a preschool child who received services pursuant to section two hundred thirty-six of the family court act during the previous year  may receive, from the provider of such services, preschool special education services in an approved program appropriate to the needs of such child.   * NB Effective June 30, 2024   d. A state review officer of the education department shall review the decision  of  the  impartial hearing officer in the manner prescribed in subdivision two of section forty-four hundred four of this  article  and render  a  decision no later than thirty days after the decision of such hearing officer.   e. Review of the final determination or  order  of  the  state  review officer  may be brought in the manner prescribed in subdivision three of section forty-four hundred four of this article.   8. Transportation. The municipality in which a preschool child resides shall, beginning with the first day of service, provide either  directly or  by contract for suitable transportation, as determined by the board, to and from special services or programs; provided, however, that if the municipality is a city with a population of one million or more  persons the   municipality   may   delegate   the   authority  to  provide  such transportation to  the  board;  and  provided  further,  that  prior  to providing  such  transportation  directly  or  contracting  with another entity to provide such transportation, such municipality or board  shall request  and encourage the parents to transport their children at public expense, where cost-effective, at a rate per mile or  a  public  service fare  established  by the municipality and approved by the commissioner. Except as otherwise provided in this section, the parents' inability  or declination  to  transport  their  child  shall  in  no  way  affect the municipality's  or  board's  responsibility   to   provide   recommended services.  Such  transportation  shall  be  provided once daily from the child care location to the special service or  program  and  once  daily from  the  special  service  or program to the child care location up to fifty miles from the child care location. If the board determines that a child must receive special services and programs at a  location  greater than fifty miles from the child care location, it shall request approval of  the  commissioner.  For  the  purposes of this subdivision, the term "child care location" shall mean a child's home or a  place  where  care for less than twenty-four hours a day is provided on a regular basis and includes,  but  is not limited to, a variety of child care services such as day care centers, family day care homes and in-home care  by  persons other  than  parents.  All  transportation  of  such  children  shall be provided pursuant to the procedures set forth  in  section  two  hundred thirty-six  of  the  family  court  act using the date called for in the written notice of determination of the board or the date of the  written notice  of determination of the board, whichever comes later, in lieu of the date the court order was issued. Notwithstanding this subdivision or any provision of law to the contrary, transportation  expenses  incurred  by  a  municipality for operating and maintenance costs pursuant to this subdivision during the period between the issuance  of  executive  order 202.4  on  March  sixteenth,  two  thousand  twenty  and the issuance of executive  order  202.28  on  May  seventh, two thousand twenty shall be reimbursable and  considered  approved  costs  in  accordance  with  the provisions of this section and the regulations of the commissioner.   9.  Program  approval.  a.  Providers  of special services or programs shall  apply  to  the  commissioner  for  program  approval  on  a  form prescribed  by the commissioner; such application shall include, but not be limited to, a listing of the services to be provided, the  population to  be  served,  a  plan for providing services in the least restrictive environment and a description of its evaluation component, if  any.  The commissioner  shall  approve  programs  in  accordance  with regulations adopted for such purpose and shall periodically review such programs  at which  time the commissioner shall provide the municipality in which the program  is  located  or  for  which  the  municipality   bears   fiscal responsibility  an  opportunity  for  comment  within thirty days of the review. In collaboration  with  municipalities  and  representatives  of approved   programs,  the  commissioner  shall  develop  procedures  for conducting such reviews. Municipalities shall be allowed to  participate in  such  departmental review process. Such review shall be conducted by individuals  with  appropriate   experience   as   determined   by   the commissioner  and  shall  be  conducted  not  more than once every three years.  (iii)  Commencing  July  first,  nineteen   hundred   ninety-six   and continuing  through  June thirtieth, two thousand three, a moratorium on the approval of any new or expanded programs in settings  which  include only  preschool  children  with  disabilities is established. Exceptions shall be made for cases in which school districts  document  a  critical need  for  a  new  or  expanded program in a setting which includes only preschool children with disabilities, to meet the projected  demand  for services  for  preschool  children in the least restrictive environment. Applications for new or expanded programs may be made  directly  to  the state   education   department.   Nothing   herein  shall  prohibit  the commissioner from approving the modification of a full-day program  into half-day sessions.   Commencing  July  1, 1999 the department shall only approve any new or expanded programs in settings which include only preschool children with disabilities, if the applicant can document a critical need for a new or expanded program in a setting which  includes  only  preschool  children with  disabilities  to  meet  the  projected  demand  for  services  for preschool  children  in  the  least  restrictive  environment.  If   the department  determines that approval will not be granted, it must notify the applicant,  in  writing,  of  its  reasons  for  not  granting  such approval.  The  department shall establish guidelines, within 90 days of the effective date of this section which shall state the  criteria  used to determine if the applicant has demonstrated such a critical need. The department  is  authorized  to consult with the local school district to verify any data submitted.   On December 1, 2003 the commissioner shall  submit  a  report  to  the board  of regents, the majority leader of the senate, the speaker of the assembly and governor evaluating the impact of such  moratorium  on  the availability  of  preschool special education services. The report shall include: (i) information regarding the number of  applications  for  new programs   and   program   expansions   and  the  disposition  of  those applications by the commissioner; (ii) an assessment  of  the  projected need  for  additional  classes  serving only disabled children and those serving disabled children with their non-disabled  peers  and  in  other  less restrictive settings; (iii) an assessment of the projected need for additional  programs  due  to  program closings in the region, number of children receiving early  intervention  services  and  existing  waiting lists;  (iv)  an  assessment  of  the  distance  that  children  must be transported to receive preschool  special  education  services;  (v)  an evaluation  of  the  programmatic  performance and cost-effectiveness of existing programs; (vi) recommendations regarding ways in which improved quality and cost-effectiveness could be achieved through  the  selective expansion of effective programs and/or the curtailment of less effective programs;  and (vii) an assessment of the availability and effectiveness of approved programs  providing  services  to  preschool  children  with autism.   b. As part of an application submitted pursuant to paragraph a of this subdivision,  a  provider of special services or programs shall submit a description of its  multi-disciplinary  evaluation  component,  if  any, which shall be subject to the approval of the commissioner in accordance with  regulations  adopted  for such purpose after consultation with the appropriate advisory committee. Such components or program may  rely  in part  on  formal  written  agreements or affiliations with appropriately certified  or  licensed  professionals,  or  agencies   employing   such professionals,  provided  that  such  professionals  or agencies perform their  responsibilities  in  conformance   with   regulations   of   the commissioner  and that providers fully disclose any such arrangements on all applications for program approval, and  provided  further  that  the provider  certifies that it shall apply for and obtain a waiver pursuant to section sixty-five hundred three-b of this chapter prior to providing evaluation services pursuant to such written agreements or affiliations. Nothing herein shall require a provider of special services or  programs to have a multidisciplinary evaluation program.   c.  Municipalities,  or  in  the case of a city of one million or more persons, the board, shall maintain a list of appropriately certified  or licensed  professionals to deliver related services consistent with this section and the regulations of  the  commissioner  and  shall  determine reasonable  reimbursement  for  such services subject to the approval of the commissioner. Such list shall also include reasonable reimbursement, as determined by the municipality and approved by the  commissioner  and the  director of the budget, for the coordination of two or more related services pursuant to paragraph d of subdivision five of this section.   d. Providers may make application to conduct a program that relies  on formal  written  agreements or affiliations with other approved programs or appropriately certified or licensed professionals, provided that such arrangements are fully disclosed on all applications to the commissioner for program approval, and provided further that the  provider  certifies it  shall  apply  for and obtain a waiver pursuant to section sixty-five hundred three-b of this chapter  prior  to  providing  related  services pursuant  to  any  such  written  agreements  or  affiliations involving licensed professionals.   e. Nothing herein shall preclude an approved  program  from  providing services in the preschool child's home.   f. As part of an application submitted pursuant to paragraph a of this subdivision,  a  provider of special services or programs shall describe any program  in  which  preschool  children  will  receive  services  in conjunction  with  children  placed  pursuant  to  section  two  hundred thirty-six of the family court act or title II-A of article  twenty-five of  the public health law. If such preschool program otherwise meets the criteria for approval of preschool programs established  by  regulations of the commissioner, the commissioner shall approve such program.    g. As part of an application submitted pursuant to paragraph a of this subdivision,  a  provider  of special services or programs shall certify pursuant to regulations promulgated by the  commissioner  that  it  will take  measures to ensure its executive director or person performing the duties  of a chief executive officer: (i) meets the criteria established by the commissioner to be an executive director; and (ii) if paid  as  a full time executive director, he or she is employed in a full time, full year position and shall not engage in activity that would interfere with or impair such executive director's ability to carry out and perform his or her duties, responsibilities and obligations.   * 9-a.  (a)  A  group  of  appropriately  licensed  and/or certified professionals associated with a public or private agency  may  apply  to the  commissioner  for  approval as an evaluator on a form prescribed by the commissioner.  The commissioner shall approve evaluators pursuant to this  subdivision  consistent  with  the  approval   process   for   the multi-disciplinary evaluation component of programs approved pursuant to subdivision  nine  of  this  section consistent with regulations adopted pursuant to such subdivision. All school districts are  deemed  approved evaluators  of  preschool  students  suspected  of  having  a disability without the need to submit an application to the commissioner  if  staff who  provide  such  evaluation services shall have appropriate licensure and/or certification.   Such application shall include, but not be limited to,  a  description of  the  multi-disciplinary  evaluation services proposed to be provided and a demonstration that all agency employees and staff who provide such evaluation   services   shall   have   appropriate   licensure    and/or certification  and that the individual who shall have direct supervision responsibilities over such staff shall  have  an  appropriate  level  of experience   in   providing  evaluation  or  services  to  preschool  or kindergarten-aged  children  with  disabilities.  To  be  eligible   for approval as an evaluator under this subdivision on and after July first, two  thousand  eleven,  a  group  of appropriately licensed or certified professionals  shall  be  formed  as  a  limited  liability  company  or professional   services  corporation  established  pursuant  to  article fifteen of the business corporation law, article twelve or  thirteen  of the  limited liability company law or article eight-B of the partnership law. The approval of any groups of licensed or  certified  professionals that  are  in existence on July first, two thousand eleven and would not be eligible for approval thereafter shall terminate on July  first,  two thousand thirteen.  (b)  The  commissioner  shall  periodically  review such evaluators at which time the commissioner shall provide the municipality in which  the evaluator is located an opportunity for comment.  (c)  The  commissioner  shall  establish  a  billing and reimbursement system for services provided by school districts and evaluators approved pursuant to the provisions of this subdivision consistent  with  billing and   reimbursement  for  evaluation  services  provided  by  evaluators approved pursuant to the provisions of subdivision nine of this section.   * NB Repealed July 1, 2024   9-b. Program reapproval process. The commissioner  shall  periodically review  and  reapprove  programs,  including the provision of evaluation services, in accordance with regulations adopted for such purpose, which shall include  reapproval  criteria  designed  to  assure  that  quality services  are  provided  in a necessary and cost efficient manner and in the least restrictive environment which may include  settings  in  which age-appropriate  peers  without  disabilities  are  typically  found. In reviewing  programs  and  the  provision  of  evaluation  services,  the commissioner  shall  consider factors including, but not limited to, the  percentage of children receiving services from the approved program that conducted the evaluation of  the  child;  and  whether  there  has  been evidence  of  misleading  or  erroneous advertising. The division of the budget  shall  consider in a timely manner all requests submitted by the department to hire sufficient staff to conduct such periodic  reapproval of  programs, as determined by the commissioner, using available federal funds.   Such reapproval process shall provide the municipality  in  which  the program   is   located  or  for  which  the  municipality  bears  fiscal responsibility, an opportunity for comment thirty or more days prior  to completion  of  the reapproval. In collaboration with municipalities and representatives of approved programs,  the  commissioner  shall  develop procedures  for  conducting  such  reapprovals.  Municipalities shall be allowed  to  participate  in  such  departmental  review  process.  Such reapprovals   shall   be   conducted  by  individuals  with  appropriate experience as determined by the commissioner and shall be conducted  not more than once every three years, unless the commissioner, on his or her own  initiative  or  at  the  request of a municipality, determined that reapprovals are earlier or more frequently  required.  The  commissioner shall  commence such reapproval process no later than January fifteenth, nineteen  hundred  ninety-seven.  Program  reapprovals  may  result   in disapproval  of  the  entire  program  or  a  component  of the program, including but not limited to the evaluation component. In reapproving  a program  component,  such  approval  criteria  shall include, but not be limited to:   a. the extent to which the program offers services  in  settings  with regular  contact  with  age-appropriate  peers, where appropriate to the needs of the population served; and   b.  whether  there  has  been  evidence  of  misleading  or  erroneous advertising.   Such reapproval shall assure an appropriate opportunity to be heard on the  findings  of  the  reapproval  and  the opportunity to address such findings through corrective or remedial action, where  applicable.  Such reapproval process shall also provide for the determination of action on the  part  of  the  department to address the findings of the reapproval which may include, but not be limited to, the withdrawal of approval  to provide evaluation services.   9-c.  Advertising.  The commissioner is authorized to require approved programs and evaluators to periodically submit copies of advertising for review, and to commence a  proceeding  to  revoke  the  approval  of  an approved  program  or  evaluator pursuant to this subdivision for false, misleading, deceptive or fraudulent advertising pursuant to  regulations to  be  promulgated  by the commissioner, which shall be consistent with article twenty-two-a of the general business law. Such regulations shall prohibit  advertisements  from   including   misleading   or   erroneous information  with  respect  to  services  to  be  provided  to preschool children and their families. The department shall issue guidelines as to appropriate  advertising  content.  In  a  revocation  proceeding,  such guidelines shall not be presumptive evidence that particular advertising is appropriate.   9-d.  Business  plans.  Approved  providers  of  special  services and programs, including local educational agencies, shall develop and submit to the commissioner, by January first, nineteen hundred ninety-seven,  a business  plan,  the  contents  of  which  shall  be  determined  by the commissioner, which redirects  fiscal  and  personnel  resources  toward providing  special  education  programs  and  services  in settings with children who do not have  disabilities,  and  reduces  the  reliance  on  programs  and  settings  which  include  only  preschool  children  with disabilities.   10.  Approved  costs.  a. (i) (A) Commencing with the nineteen hundred ninety--ninety-one  school  year,  the   commissioner   shall   annually determine the tuition rate for approved services or programs provided to preschool children pursuant to this section. Such rates for providers of such  services  and  programs  shall be determined in conformance with a methodology  established  pursuant  to  subdivision  four   of   section forty-four  hundred  five  of this article after consultation with and a review  of  an  annual  report  prepared  by  the   advisory   committee established  pursuant  to  paragraph  a  of  subdivision  twelve of this section and shall be subject to the approval  of  the  director  of  the budget.  Notwithstanding  any other provision of law, rule or regulation to the contrary, tuition rates  established  for  the  nineteen  hundred ninety-five--ninety-six  school  year shall exclude the two percent cost of living adjustment authorized in rates established  for  the  nineteen hundred ninety-four--ninety-five school year.  (B)  Commencing  with  the  two thousand fifteen--two thousand sixteen school year, such special education itinerant services shall be provided by approved programs, and such approved programs shall be reimbursed for such services based on  the  actual  attendance  of  preschool  children receiving such services.  (C)  Notwithstanding any other provision of law, rule or regulation to the contrary, on  or  before  the  two  thousand  sixteen--two  thousand seventeen  school year and thereafter, to be phased-in over no more than four years from such starting year, the  commissioner,  subject  to  the approval of the director of the budget, shall establish regional tuition rates  for  special education itinerant services based on average actual costs  in  accordance  with  a  methodology  established   pursuant   to subdivision four of section forty-four hundred five of this article.   * (D)  Notwithstanding  any other provision of law, rule or regulation to the contrary, commencing with the two thousand eighteen--two thousand nineteen  school  year,  approved  preschool  integrated  special  class programs  shall  be reimbursed for such services based on an alternative methodology for reimbursement to be established by the commissioner.  In developing  such  methodology  the  commissioner  shall  seek input from stakeholders that would be impacted by such alternative methodology. The alternative methodology, subject to the approval of the director of  the budget,  shall  be proposed by the department no later than April first, two thousand eighteen.   * NB Effective July 1, 2017  (ii) Upon request, the commissioner shall, on a timely basis, transmit to the  municipality  in  which  an  approved  program  is  located  any information  provided  by  such  approved  program  for  the  purpose of establishing a rate for the program.  (iii)  Following  determination   of   tuition   rates   pursuant   to subparagraph  (i)  of this paragraph, the commissioner shall submit such rates  to  the  director  of  the  budget   for   approval   and   shall simultaneously  transmit  to  each  municipality  the rates for programs located in the  municipality.    Within  thirty  calendar  days  of  the commissioner's transmittal date, the municipality may submit comments in writing  to  the  commissioner.  The  commissioner  shall  consider such comments and, if he deems it appropriate,  adjust  such  rate  prior  to final action by the director of the budget. If the commissioner does not adjust  the  rate,  the  commissioner  shall  respond  to  the  comments presented by the municipality.   b. Reimbursement for  evaluations  conducted  by  approved  evaluators shall  be  provided  pursuant  to  regulations of the commissioner after  consultation  with  the  advisory  committee  established  pursuant   to paragraph  a  of subdivision twelve of this section and shall be subject to approval by the director of the budget.   c.  Approved  costs  for transportation shall be the costs incurred by the municipality in accordance with the provisions of subdivision  eight of  this section. The commissioner shall establish, in consultation with the municipalities, and with the approval of the director of the budget, regional ceilings for each region  of  the  state,  as  defined  by  the commissioner,   on   the   maximum  allowable  state  reimbursement.  In developing such ceilings, the commissioner shall consider  the  size  of the  geographic  area  to  be  served,  the projected number of children requiring  transportation  services  and  such  other  factors  as   the commissioner  shall  determine  may influence the cost of transportation services.   d. (i) At the beginning of the school  year,  the  commissioner  shall allocate  funds  for reimbursement of allowable administrative costs, as defined in regulations of the commissioner, incurred by a board pursuant to this section. Such allocation shall be in an amount equal to a school district's pro rata share of the statewide base year count of  preschool children as a percent of federal funds available for such reimbursement, as  determined  by  the  commissioner.  In January of any school year in which additional federal funds are determined by the commissioner to  be available  for  such  reimbursement,  the  commissioner  shall equitably allocate such funds for reimbursement of allowable administrative costs, in a manner determined by the  commissioner  which  is  consistent  with federal  statutes and regulations governing the use of federal funds, to school districts which have demonstrated  a  need  for  such  additional funds.  At  the  close  of  the  school  year  for which such funds were allocated, each  board  shall  submit,  in  a  form  prescribed  by  the commissioner, a statement of the allowable administrative costs incurred pursuant  to  this  section.  A  board  may,  subject to approval of the commissioner,  submit  any  allowable  administrative  costs  for  which federal funds are not allocated to that school district pursuant to this subdivision  to  the  appropriate  municipality  or  municipalities  for reimbursement pursuant to subdivision eleven of this section.  (ii)  Boards  may  submit  reasonable  costs  incurred   pursuant   to paragraphs  a  through  d  of  subdivision  seven of this section to the appropriate municipality for reimbursement. Boards may  also  submit  to the  appropriate  municipality  for  reimbursement  of  reasonable costs incurred pursuant to paragraph e of subdivision seven of  this  section: (A)  in  an  action  or proceeding brought by another party or (B) in an action or proceeding brought by the  board,  other  than  an  action  or proceeding  brought  against the state, a department, board or agency of the state or a state officer,  except  where  such  state  defendant  is joined as a necessary party to such action or proceeding, if, upon final disposition  of  the action or proceeding, the board receives a judgment in its favor annulling the determination or order of  the  state  review officer.  The municipality shall be reimbursed for payment of such costs pursuant to subdivision eleven of this section.  (iii) On or after July first, nineteen hundred  ninety,  and  annually thereafter  until June thirtieth, two thousand one, municipalities shall be eligible for reimbursement for administrative costs  incurred  during the  preceding  year  of fifty dollars for each eligible preschool child served in such year pursuant to this section. On or  after  July  first, two  thousand  one,  and  annually  thereafter,  municipalities shall be eligible for reimbursement for administrative costs incurred during  the preceding year of seventy-five dollars for each eligible preschool child served  in  such  year pursuant to this section. Each municipality shall  submit a claim in a form prescribed by the commissioner. Upon  approval, reimbursement  shall  be  made  by  the commissioner from appropriations available therefor. Such  reimbursement  shall  be  made  in  the  first instance  from  any federal funds designated under federal law for local use, as  determined  by  the  commissioner,  that  are  available  after satisfying  the provisions of subparagraph (i) of this paragraph. To the extent that such federal  funds  are  not  sufficient  or  available  to reimburse  a  municipality  for  such costs, reimbursement shall be made with state funds.   e. Public special education funding provided for the purposes of  this section  shall  not  be  used  to purchase regular preschool educational services, day care or other child care  services,  or  to  purchase  any instructional service other than special services or programs as defined in  subdivision two of section forty-four hundred one of this article or in this section, and the purchase of such regular preschool  educational services  and  child  care  services shall not be approvable pursuant to this section as a charge upon the municipality or the board.   11. Financial responsibility for approved costs. a. The approved costs for a preschool child who receives services  pursuant  to  this  section shall  be a charge upon the municipality wherein such child resides. All approved costs shall  be  paid  in  the  first  instance  and  at  least quarterly   by   the  appropriate  governing  body  or  officer  of  the municipality upon vouchers presented and audited in the same  manner  as the  case  of other claims against the municipality. Notwithstanding any inconsistent provisions  of  this  section,  upon  notification  by  the commissioner,  a municipality may withhold payments due any provider for services rendered to preschool children  in  a  program  for  which  the commissioner  has  been  unable  to  establish a tuition rate due to the failure of the provider to file complete and accurate reports  for  such purpose, as required by the commissioner.   b.  (i)  Commencing  with  the  reimbursement  of  municipalities  for services provided pursuant to this  section  on  or  after  July  first, nineteen  hundred ninety-three, the state shall reimburse fifty-nine and one half percent of the approved costs paid by a  municipality  for  the purposes   of   this  section.  Commencing  with  the  reimbursement  of municipalities for services provided pursuant  to  this  section  on  or after   July  first,  nineteen  hundred  ninety-four,  the  state  shall reimburse sixty-nine and one-half percent of the approved costs paid  by a  municipality  for  the  purposes  of  this  section.  The state shall reimburse fifty percent of the approved costs paid by a municipality for the purposes of this section for services provided prior to July  first, nineteen   hundred   ninety-three.   Such  state  reimbursement  to  the municipality shall not be paid prior to April first of the  school  year in which such approved costs are paid by the municipality.  (ii)  In  accordance with a schedule adopted by the commissioner, each municipality which has been notified by a board  of  its  obligation  to contract  for the provision of approved special services or programs for a preschool child shall be provided with a listing of all such  children by the commissioner. Such list shall include approved services and costs as  prescribed  by  the  commissioner  for  each such child for whom the municipality shall certify, on such list, the amount expended  for  such purposes and the date of expenditure. Upon the receipt of such certified statement,  the  commissioner  shall  examine  the  same,  and  if  such expenditures were made as required by  this  section,  the  commissioner shall  approve  it  and  transmit  it  to the comptroller for audit. The comptroller shall thereupon issue his warrant, in the  amount  specified in  such  approved  statement  for  the  payment  thereof  out of moneys  appropriated therefor,  to  the  municipal  treasurer  or  chief  fiscal officer as the case may be.  (iii) (a) Notwithstanding the provisions of this paragraph, any monies due  municipalities  pursuant  to  this  paragraph for services provided during the two thousand eight--two thousand nine and prior school  years shall  be reduced by an amount equal to the product of the percentage of the approved costs reimbursed by the state pursuant to subparagraph  (i) of  this  paragraph and any federal participation, pursuant to title XIX of the social security  act,  in  special  education  programs  provided pursuant  to this section. The commissioner shall deduct such amount, as certified by the commissioner of health as the authorized  fiscal  agent of  the  state  education  department.  Such deductions shall be made in accordance with a plan developed by the commissioner and approved by the director of the budget. To the extent that such deductions exceed moneys owed to the municipality pursuant to this paragraph, such  excess  shall be deducted from any other payments due the municipality.  (b)  Any  moneys  due  municipalities  pursuant  to this paragraph for services provided during the two thousand nine--two thousand ten  school year  and  thereafter,  or  for services provided in a prior school year that were not reimbursed by the state on  or  before  April  first,  two thousand  eleven,  shall,  in  the  first instance, be designated as the state share of moneys due a municipality pursuant to title  XIX  of  the social  security  act,  on  account of school supportive health services provided to  preschool  students  with  disabilities  pursuant  to  this section.  Such state share shall be assigned on behalf of municipalities to the department of health, as provided herein; the  amount  designated as such nonfederal share shall be transferred by the commissioner to the department  of health based on the monthly report of the commissioner of health to the commissioner; and any remaining moneys to  be  apportioned to  a  municipality pursuant to this section shall be paid in accordance with this section. The amount  to  be  assigned  to  the  department  of health,   as   determined   by  the  commissioner  of  health,  for  any municipality shall not exceed the federal share of any moneys  due  such municipality  pursuant  to  title XIX of the social security act. Moneys designated as state share moneys shall be paid to such  municipality  by the  department of health based on the submission and approval of claims related to  such  school  supportive  health  services,  in  the  manner provided by law.  (iv)  Notwithstanding  any  other provision of law to the contrary, no payments shall be made by the commissioner pursuant to this  section  on or  after  July  first, nineteen hundred ninety-six based on a claim for services    provided    during    school    years    nineteen    hundred eighty-nine--ninety,   nineteen   hundred  ninety--ninety-one,  nineteen hundred         ninety-one-ninety-two,         nineteen          hundred ninety-two--ninety-three,  nineteen  hundred  ninety-three--ninety-four, and nineteen hundred ninety-four--ninety-five which is  submitted  later than    two    years   after   the   end   of   the   nineteen   hundred ninety-five--ninety-six school year; provided, however, that no  payment shall be barred or reduced where such payment is required as a result of a  court  order  or judgment or a final audit, and provided further that the commissioner may grant a waiver to a municipality excusing the  late filing  of  such  a  claim upon a finding that the delay was caused by a party other than the municipality or a board to which  the  municipality delegated  authority  pursuant  to  paragraph  f  of subdivision five or subdivision eight of this section.  (v) Notwithstanding any other provision of law  to  the  contrary,  no payments  shall  be made by the commissioner pursuant to this section on or after July first, nineteen hundred ninety-six based on  a  claim  for  services provided in the nineteen hundred ninety-five--ninety-six school year  or  thereafter which is submitted later than three years after the end of the school  year  in  which  services  were  rendered,  provided, however,  that  no payment shall be barred or reduced where such payment is required as a result of a court order or judgment or a  final  audit, and  provided  further  that  the  commissioner  may grant a waiver to a municipality excusing the late filing of such a  claim  upon  a  finding that  the  delay  was caused by a party other than the municipality or a board  to  which  the  municipality  delegates  authority  pursuant   to paragraph f of subdivision five or subdivision eight of this section.  (vi)  Notwithstanding  any  other  provision  of  law to the contrary, beginning with state reimbursement otherwise payable in the two thousand six--two thousand seven state fiscal year and in each  year  thereafter, payments  pursuant  to  this section, subject to county agreement and in the amounts specified in such agreement, shall be  paid  no  later  than June  thirtieth of the state fiscal year next following the state fiscal year in which such reimbursement was otherwise eligible for payment  and in  which  the  liability  to  the  county  for such state reimbursement accrued, provided that such payments in a subsequent state  fiscal  year shall be recognized by the state and the applicable county as satisfying the  state reimbursement obligation for the prior state fiscal year. Any unspent amount associated with  such  county  agreements  shall  not  be available for payments to other counties or municipalities.   c.  (i)  Each  municipality, or, in addition, in the case of a city of one million or more persons, the board, may perform a  fiscal  audit  of such  services  or  programs for which it bears fiscal responsibility in accordance with audit standards established by the  commissioner,  which may  include site visitation. The department shall provide guidelines on standards and procedures to municipalities and boards, for fiscal audits of services or programs pursuant to this section. Prior to commencing  a fiscal  audit  pursuant  to  this  subparagraph,  a  municipality  shall ascertain  that  neither  the  state  nor  any  other  municipality  has performed  a  fiscal  audit  of the same services or programs within the current fiscal year for such program. If it is determined that  no  such audit  has  been  performed,  the  municipality  shall  inquire with the department  to  determine  which  other  municipalities,  if  any,  bear financial  responsibility for the services or programs to be audited and shall afford such  other  municipalities  an  opportunity  to  recommend issues  to  be  examined  through  the  audit. Municipalities completing audits pursuant  to  this  subparagraph  shall  provide  copies  to  the department,  the  provider  of  the  services and programs and all other municipalities previously determined to  bear  financial  responsibility for the audited services and programs. No other municipality may conduct an  additional fiscal audit of the same services or programs during such current fiscal year for such program.  (ii) Payments made pursuant to this section by a  municipality  shall, upon  conclusion  of  the  July  first to June thirtieth school year for which such payment was made, be subject  to  audit  against  the  actual difference   between   such   audited  expenditures  and  revenues.  The municipality  shall  submit  the  results  of  any  such  audit  to  the commissioner  and  the  commissioner of social services, if appropriate, for  review  and,  if  warranted,  adjustment  of  the  tuition   and/or maintenance   rates.   The   municipality   is   authorized  to  recover overpayments made to a provider of special services or programs pursuant to this section as determined by the commissioner or the commissioner of health based upon their adjustment of a tuition and/or maintenance rate, provided that for purposes of making such adjustment and  recovery,  the municipality  shall  be  deemed  to have paid one hundred percent of the  disallowed costs. Such recovery may be accomplished by withholding  such amount  from  any  moneys  due  the  provider in the current year, or by direct  reimbursement.  The  commissioner  shall  promulgate  rules  and regulations  necessary  to  implement  the  provisions of this paragraph within sixty days of the effective date of the chapter of  the  laws  of two thousand thirteen which amended this subparagraph.   12.  Advisory  committees.  a.  The  commissioner  shall  establish an advisory committee consisting of representatives  of  municipalities  to advise  the commissioner on establishing the rate methodology authorized by subdivision ten of this section.   b. The commissioner shall establish such other advisory committees  as he deems necessary to implement the provisions of this section.   13.  a.  The  commissioner  shall  adopt  regulations to implement the provisions of this section. Such regulations shall include:  (i) regional cost ceilings on average per  pupil  transportation  cost for  the  reimbursement  of  transportation  expenditures, where regions shall be as defined by the commissioner;  (ii) the requirement that committees identify  transportation  options for   preschool   children,  consistent  with  this  article,  including encouraging parents to transport their children at public expense  where cost-effective; and  (iii)  the  requirement  that  each  program  approved pursuant to the provisions of this section shall make application  to  the  commissioner for approval to provide special education itinerant services.   b.  The  commissioner  shall  ensure  that  eligibility  criteria  are consistently applied.   c. The commissioner shall, in consultation with clinicians trained  in early   childhood   educational   services,  municipal  representatives, representatives of parents of children requiring  preschool  and  school age   special  education  services,  representatives  of  statewide  and regional provider organizations, academic  experts  concerned  with  the provision  of special education services, and such other early childhood education professionals as  the  commissioner  shall  deem  appropriate, develop  clinical  practice  guidelines  for  the  purpose  of assisting evaluators with respect to appropriate  diagnosis  and  evaluation,  and committees with respect to the type, frequency and duration of services. The  commissioner may at his or her own discretion use existing advisory committees and may add additional members to develop  these  guidelines. Such  guidelines  shall  be designed to assure that appropriate services are provided in a manner which is necessary and cost efficient,  and  in the  least  restrictive  environment, and shall promote the education of children  in  integrated  settings  with  children  who  do   not   have disabilities  insofar as possible and appropriate, including through the provision of related services or special education itinerant services.   * d. The commissioner shall establish  procedures  for  administrative appeals   to   resolve   interagency   disputes   between   boards   and municipalities over responsibility for provision  of,  or  payment  for, special  education  programs  or  services  to  preschool  children with disabilities. During the pendency of any  such  appeal,  the  board  or, where   applicable,   a  state  department  or  agency  responsible  for developing the preschool child's individualized education program, shall provide and pay for the special education programs and services  on  the preschool   child's   individualized  education  program  and  may  seek reimbursement in the appeal. The commissioner  shall  be  authorized  to make  all  orders  that  in  the  commissioner's  judgment are proper or necessary to  give  effect  to  the  decision  in  the  appeal.  Upon  a determination that a public agency has failed to provide or pay for such special  education programs and services, the commissioner shall certify  the amount of  such  costs  to  the  state  comptroller  and  the  state comptroller  to  deduct such amount from any state funds that become due to such public agency.   * NB Repealed June 30, 2024