2023 New York Laws › EDN - Education › Title 6 - Special Schools and Instruction › Article 89 - Children With Disabilities. › 4410 - Special Education Services and Programs for Preschool Children With Disabilities.

§ 4410. Special education services and programs for preschool children
with disabilities. 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 disability 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  disability  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
disability, 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 disability;
(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 April 1, 2025
* 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 of
subdivision six of section sixty-five hundred three-b of  this  chapter,

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 April 1, 2025 until June 30, 2026
* 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, 2026
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, 2025
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