NY Educ L § 4403 (2021)
2021 New York Laws EDN - Education Title 6 - Special Schools and Instruction Article 89 - Children With Handicapping Conditions 4403 - Duties of Education Department.

§ 4403. Duties of education department. The state education department shall  have power and it shall be its duty: 1. To maintain a statistical summary of the number of handicapped  children  who  reside  within  the state  and  the  nature  of  their  handicaps  and  to use all means and measures necessary to adequately meet the physical and educational needs of such children, as provided by law.   2. To stimulate all private and public efforts  designed  to  relieve, care  for  or  educate  children  with  handicapping  conditions  and to coordinate such efforts with  the  work  and  function  of  governmental agencies.   3.  To formulate such rules and regulations pertaining to the physical and educational needs of such children as the commissioner of  education shall deem to be in their best interests. In the city school district of the  city  of  New  York  in  complying  with  any  rules or regulations promulgated under this section relating to  maximum  group  size,  other than  regulations  prescribing  the maximum class size in self-contained special education classes, the commissioner shall allow school districts a variance of up to fifty percent rounded up to the nearest whole number from the maximum number of students as specified  in  regulation  in  an instructional group in a resource room program, a related service group, and the total number of students assigned to a resource room teacher.   4.  To  periodically  inspect,  report  on  the  adequacy  of and make recommendations concerning instructional programs  or  special  services for  all  children  with handicapping conditions who reside in or attend any state operated or state financed social  service  facilities,  youth facilities,  health  facilities,  mental  health, mental retardation and developmental disabilities facilities or state correctional facilities.   5. To require such financial information as may be necessary from  and to  audit  any  public  or non-public school receiving any public moneys pursuant to any provision of the education law as the commissioner deems appropriate.   * 6. To provide for an advisory panel, appointed by  the  commissioner composed  of  individuals involved in or concerned with the education of children with disabilities,  including  individuals  with  disabilities, teachers  of  children with disabilities, parents or persons in parental relation of children or individuals with disabilities from birth to  age twenty-six,  state  and local educational officials, including officials who carry out  activities  under  subtitle  B  of  title  seven  of  the McKinney-Vento  homeless  assistance  act  (section eleven thousand four hundred thirty-one of title forty-two of  the  United  States  code,  et seq.),  representatives of state or regional associations concerned with the  education  of  children  with  disabilities,   representatives   of institutions of higher education that prepare special education teachers or  administrators  and/or related services personnel, administrators of programs for students with disabilities, a representative of the  office of  children  and  family  services with responsibility for foster care, representatives of other state agencies involved  in  the  financing  or delivery   of   related   services   to   children   with  disabilities, representatives of nonpublic schools and,  upon  establishment  of  such schools,  representatives  of  public charter schools, not less than one representative of  a  vocational,  community  or  business  organization concerned  with  the  provision  of transition services to students with disabilities,  and  representatives  of   state   juvenile   and   adult corrections   agencies,   to   advise   the  governor,  legislature  and commissioner of unmet  needs  within  the  state  in  the  education  of children  with  disabilities, in developing procedures for evaluation of the special education system and the reporting of data  as  required  by federal  law,  in developing corrective action plans to address findings  identified in federal monitoring reports, in developing and implementing policies relating to coordination of services, and on the  education  of students  with  disabilities  who  have  been  convicted  as  adults and incarcerated  in  adult  prisons and to comment publicly on any rules or regulations proposed for issuance  by  the  commissioner  regarding  the education   of   children  with  disabilities  and  the  procedures  for distribution of funds under this article. A majority of the  members  of the  advisory panel shall be individuals with disabilities or parents of children with disabilities.  Such  panel  members  shall  serve  without compensation except that such members shall be entitled to reimbursement for actual and necessary expenses incurred in such service.   * NB Effective until June 30, 2024   * 6.  To  provide for an advisory panel, appointed by the commissioner composed of individuals involved in or concerned with the  education  of children  with  disabilities,  including  individuals with disabilities, teachers of children with disabilities, parents or persons  in  parental relationship  of children with disabilities, state and local educational officials, representatives of state or regional  associations  concerned with  the  education  of  children with disabilities, representatives of institutions of higher education that prepare special education teachers or administrators and/or related services personnel,  administrators  of programs  for students with disabilities, representatives of other state agencies involved in the financing or delivery of  related  services  to children  with  disabilities,  representatives of nonpublic schools and, upon establishment of such schools, representatives  of  public  charter schools,  at  least  one  representative  of  a vocational, community or business  organization  concerned  with  the  provision  of   transition services  to  students  with  disabilities, and representatives of state juvenile  and  adult  corrections  agencies,  to  advise  the  governor, legislature  and  commissioner  of  unmet  needs within the state in the education of children with disabilities, in  developing  procedures  for evaluation  of the special education system and the reporting of data as required by federal  law,  in  developing  corrective  action  plans  to address findings identified in federal monitoring reports, in developing and  implementing  policies relating to coordination of services, and on the education of students with disabilities who have been  convicted  as adults  and incarcerated in adult prisons and to comment publicly on any rules or regulations proposed for issuance by the commissioner regarding the education of children  with  disabilities  and  the  procedures  for distribution  of  funds under this article. A majority of the members of the advisory panel shall be individuals with disabilities or parents  of children  with  disabilities.  Such  panel  members  shall serve without compensation except that such members shall be entitled to reimbursement for actual and necessary expenses incurred in such service.   * NB Effective June 30, 2024   7.  To  define,  no  later   than   July   first,   nineteen   hundred seventy-seven, in a report to the legislature and the governor, specific criteria  for determining whether a particular disorder or condition may be considered a specific learning disability and  to  describe  in  such report  diagnostic procedures which can be used in determining whether a particular child has such a disorder or condition, and to  recommend  in such  report,  in  consultation  with the division of the budget, a cost effective program proposal and finance recommendations.   8. To develop and distribute a handbook  for  parents  of  handicapped children  and  the  members  of  committees and subcommittees on special education, which handbook shall explain, in layman terms, the  financial and  educational  obligations of the state, the county or city, the home school district, the committee on special education, and the  parent  or  legal  guardian of a handicapped child, the special services or programs available pursuant to this article, and the legal  procedures  available to an aggrieved parent or legal guardian of a handicapped child.   9.  To  make provision by regulation of the commissioner to assure the confidentiality of any personally identifiable  data,  information,  and records  collected or maintained by the state department of education or any school district, including a committee or  subcommittee  on  special education,  and  the officers, employees or members thereof, pursuant to or in furtherance of the purposes of this article, and  shall  establish procedures   upon   which   any   such   personally  identifiable  data, information, or records may be disclosed.   10. a. The commissioner shall determine whether a child, whose  report is  submitted  to  the  department  pursuant  to  clause  (b)  or (d) of subparagraph  five  of  paragraph  b  of  subdivision  one  of   section forty-four  hundred  two  of  this  article  or  subdivision thirteen of section three hundred ninety-eight of  the  social  services  law,  will likely  need adult services and, if such need will likely exist, develop a recommendation of all appropriate adult programs operated or  approved by  the department which may be available. If necessary and appropriate, the commissioner may conduct an evaluation of the child to determine  if adult services will be needed. Such recommendation of all programs shall be  made  available  to  the parent or guardian of such child as soon as practicable but no later than six months before such child  attains  the age of twenty-one.   b.  If  the  commissioner  determines, pursuant to paragraph a of this subdivision, that such  child  will  not  require  adult  services,  the commissioner  shall  notify the child's parent or guardian in writing of such determination. Such notice shall be given as  soon  as  practicable but  no  later  than  six  months  before  the  child attains the age of twenty-one.   c. Notwithstanding  paragraphs  a  and  b  of  this  subdivision,  the commissioner   may  determine  that  the  education  department  is  not responsible for determining and recommending  adult  services  for  such child.  When  such  a  determination is made it shall be made as soon as practicable after  receiving  the  report  and  the  commissioner  shall promptly   notify   in  writing  the  committee  on  special  education, multidisciplinary team or social services official who sent  the  report that  such  determination  has  been  made.  Such notice shall state the reasons for the determination and may recommend a state agency which may be responsible for determining and recommending adult services.   d. Nothing in  this  subdivision  shall  be  construed  to  create  an entitlement to adult services.   e.  A  designee of the commissioner may carry out the functions of the commissioner described in this subdivision.   11. To promulgate regulations concerning standards for the  protection of  children in residential care from reportable incidents in accordance with this section  and  article  eleven  of  the  social  services  law, including procedures for:  (a)  consistent  with appropriate collective bargaining agreements and applicable  provisions  of  the  civil  service  law,  the  review   and evaluation  of  the  backgrounds  of and the information supplied by any person applying to be an employee,  a  volunteer  or  consultant,  which shall include but not be limited to the following requirements: that the applicant  set forth his or her employment history, provide personal and employment  references,  and  relevant  experiential   and   educational qualifications  and,  sign  a  sworn  statement  indicating  whether the applicant, to the best of his or her knowledge has ever  been  convicted of a crime in this state or any other jurisdiction;  (b)  establishing,  for  employees,  relevant minimal experiential and educational  qualifications,  consistent  with  appropriate   collective bargaining  agreements  and  applicable  provisions of the civil service law;  (c)  assuring  adequate  and  appropriate  supervision  of  employees, volunteers and consultants;  (d)  demonstrating  by  a  residential  facility   or   program   that appropriate  action  is  taken  to assure the safety of the child who is alleged to have been subjected to a reportable incident in a  report  to the vulnerable persons' central register in accordance with section four hundred  ninety-two of the social services law as well as other children in care,  immediately  upon  notification  that  such  a  report  of  an allegation  of  a  reportable  incident  has been made with respect to a child in such residential facility or program;  (e) removing a child when it is determined that there is risk to  such child  if he or she continues to remain within a residential facility or program; and  (f) appropriate preventive and remedial action to be  taken  including legal   actions,   consistent  with  appropriate  collective  bargaining agreements and applicable provisions of the civil service law.   Such standards shall also establish as a priority requirements that:  (A)  subject  to  amounts   appropriated   therefor,   administrators, employees,  volunteers  and consultants receive training in at least the following:   child  abuse  prevention  and  identification,  safety  and security   procedures,   the   principles   of  child  development,  the characteristics of children in care, and techniques of group  and  child management  including  crisis  intervention,  the  laws, regulations and procedures  governing  the  protection  of  children   from   reportable incidents,  and  other  appropriate  topics,  provided however, that the department  may  exempt  administrators  and   consultants   from   such requirements upon demonstration of substantially equivalent knowledge or experience; and  (B)  subject  to  the  amounts appropriated therefor, children receive instruction, consistent with their age, needs and circumstances as  well as  the  needs  and  circumstances within the program, in techniques and procedures which will enable such children to advocate for  and  protect themselves from reportable incidents.   The  department  shall  take  all  reasonable and necessary actions to assure  that  employees,  volunteers  and  consultants  in   residential facilities  and  programs  are  kept  apprised on a current basis of all department  policies  and  procedures  relating  to  the  protection  of children  from  reportable incidents and shall monitor and supervise the provision of training to  such  administrators,  employees,  volunteers, children  and consultants.  Regulations and standards developed pursuant to this subdivision shall, to the extent possible,  be  consistent  with those promulgated by other state agencies for such purposes.  (g)  consistent  with  applicable  collective  bargaining  agreements, assuring that an individual who has committed a category one offense, as defined in paragraph (a) of subdivision four  of  section  four  hundred ninety-three  of  the  social  services  law,  that  is  included on the vulnerable persons' central register is not hired or otherwise  used  in any position in which such individual would have regular and substantial contact  with  a service recipient in any program described in paragraph (e) of subdivision four of section  four  hundred  eighty-eight  of  the social services law.   12.  To  provide  for  the development and implementation of a plan of prevention and remediation with respect to  a  substantiated  report  of abuse  or  neglect.  Such  action  shall include: (a) within ten days of  receipt of such a substantiated report, development  and  implementation of  a  plan  of prevention and remediation to be taken with respect to a custodian or the residential facility in order to assure  the  continued health  and  safety  of  children  and  to provide for the prevention of future acts constituting reportable incidents; and (b)  development  and implementation  of a plan of prevention and remediation, in the event an investigation of an allegation of abuse or  neglect  determines  that  a preponderance  of  the  evidence  of  such  allegation  exists  and such substantiated allegation may be  attributed  in  whole  or  in  part  to noncompliance  by the residential facility or program with provisions of this  chapter  or  regulations  of  the  department  applicable  to  the operation   of  such  residential  facility  or  program.  Any  plan  of prevention and remediation required to be  developed  pursuant  to  this subdivision  by  a  facility  supervised  by  the  department  shall  be submitted to and approved by the  department  in  accordance  with  time limits  established  by regulations of the department. Implementation of the plan  shall  be  monitored  by  the  department.  In  reviewing  the continued  qualifications  of  a  residential facility or program for an operating certificate, the department  shall  evaluate  such  facility's compliance  with  plans  of  prevention  and  remediation  developed and implemented pursuant to this subdivision.   13.  To  provide  technical  assistance  to   school   districts   for appropriate evaluation and assessment.   14.  To  provide technical assistance to school districts to assist in the adaptation of  curriculum  for  the  instruction  of  children  with handicapping conditions.   15.  To  provide technical assistance to school districts to assist in developing criteria for placement in special education and criteria  for reviewing the ability of a pupil to participate in regular education.   16.  Commencing  with  the nineteen hundred eighty-seven--eighty-eight school year, to provide for instruction during the months  of  July  and August  of students with handicapping conditions who have received state appointments  pursuant   to   article   eighty-five,   eighty-seven   or eighty-eight  of  this chapter and whose handicapping conditions, in the judgment of the commissioner, are severe enough to exhibit the need  for a  structured learning environment of twelve months duration to maintain developmental levels, by making such  appointments  for  twelve  months; provided  that  the  initial  term  of  appointment  of a student with a handicapping condition who is the minimum age eligible for such a  state appointment shall not commence during the months of July or August.   18. To establish guidelines for determining when a child is at risk of a  future  placement  in  a residential school, and for the provision by committees on special education of  information  to  parents  and  other persons   in   parental  relationship  concerning  the  availability  of community support  services  to  meet  the  needs  of  the  family.  The guidelines  shall be developed by the department after consultation with the office of mental health, the office for  people  with  developmental disabilities, the office of alcoholism and substance abuse services, the department of health, the department of social services and the division for youth.   * 19.  To adopt regulations prescribing the state complaint procedures pursuant to sections 300.151 through 300.153 of title thirty-four of the code of federal regulations, where an individual or organization files a written complaint alleging that a public agency has violated part  B  of the  individuals with disabilities education act. Such regulations shall include, but not be limited  to,  remedies  for  denial  of  appropriate services,   including,   as   appropriate,   the  awarding  of  monetary  reimbursement,  compensatory  services  or   other   corrective   action appropriate to the needs of the child.   * NB Effective until June 30, 2024   * 20.  To adopt regulations prescribing the state complaint procedures pursuant to sections 300.660 through 300.662 of title thirty-four of the code of federal regulations, where an individual or organization files a written complaint alleging that a public agency has violated part  B  of the  individuals with disabilities education act. Such regulations shall include, but not be limited  to,  remedies  for  denial  of  appropriate services,   including,   as   appropriate,   the  awarding  of  monetary reimbursement or other corrective action appropriate to the needs of the child.   * NB Effective June 30, 2024   21. (a) To require special act school districts listed in chapter five hundred sixty-six of  the  laws  of  nineteen  hundred  sixty-seven,  as amended,  to  provide, on an annual basis or more frequently, as needed, enrollment  reports,  including  current  and   projected   enrollments, proposed  budgets  and  any financial information the commissioner deems appropriate, which shall include, but not  be  limited  to,  outstanding revenue  anticipation  notes  as defined in paragraph (a) of subdivision one of section fifty-five of the state  finance  law,  balance  owed  to employee  benefit systems, outstanding bonds, lease costs, and any other debts to monitor the fiscal stability of special act school districts.  (b) Upon receiving the information identified in paragraph (a) of this subdivision, the department shall determine if any special act  district is  in  need  of  financial guidance and assistance upon a comprehensive review of such information provided. Upon a determination that a special act district is in  need  of  financial  guidance  and  assistance,  the department  shall,  as  soon  as  practicable, provide the district with specific recommendations to improve the special act district's financial standing in the short and long-term.