Relates to children with handicapping conditions attending an educational facility located outside the state: provides that upon a determination that the out-of-state facility is appropriately meeting the needs of the child, such child need not be referred to an appropriate in-state program unless the parent or guardian of such child so elects; provides that, upon reapplication for state reimbursement by the school district of which such child is a resident, no documentation shall be required to establish that there are no appropriate public or approved private facilities for instruction available within the state or that any efforts were made to obtain placement of the student in such an in-state facility.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A968
SPONSOR: Kellner TITLE OF BILL: An act to amend the education law, in relation to
children with handicapping conditions attending an educational facility
located outside the state
PURPOSE OR GENERAL IDEA OF BILL: This bill would reform the process by
which local school districts apply to the New York State Education
Department ("NYSED") for cost reimbursement for the continuation of
placement of special-needs children in NYSED-approved non-public special
education programs located outside the State. Under current NYSED poli-
cies and practices, local school districts and parents are required to
engage in an unnecessary, burdensome, and usually futile search for an
in-state transfer program in order to secure cost reimbursement, despite
the determination of the district's committee on special education (with
which the parents have participated and in which they agree) that the
out-of-state placement has been and will continue to be successful in
providing appropriate special education and related services for the
upcoming school year. This bill would allow the district to implement
the continuation of the placement and receive cost reimbursement without
requiring the district to search for an in-state transfer school.
SUMMARY OF SPECIFIC PROVISIONS: Section 1: Amends Section 4407 of the
Education Law to provide that if an out-of-state program, in which a
child is currently placed pursuant to federal and state law, is appro-
priately meeting the child's needs for special education and related
services, then the district will not have to apply for the child to be
admitted to in-state programs and refer the parents to such programs for
visits and interviews in order for the district to receive cost
reimbursement from the NYSED, The application for cost reimbursement,
thus, will not need to include documentation showing that there are no
appropriate public or approved private facilities within the state, or
that any .efforts were made to obtain an in-state placement.
Section 2; Sets effective date.
JUSTIFICATION: N.Y. Soc. Serv. Law § 483-d (popularly referred to as
"Billy's Law") was enacted to improve monitoring of the safety of New
York residents with disabilities placed in out-of-state residential
programs. The principal means of accomplishing this safety monitoring
objective is to require that the State agencies and departments, which
placed a New York State resident in an out-of-state program, establish
and maintain procedures for transferring the resident back to an
in-state facility when safety,concerns warrant doing so. Also, where
would these disabled New York State students be placed if brought back
to New York? As set forth in a draft report, not yet released by Gover-
nor Cuomo's office, many severe problems exist in New York State's
treatment of these disabled students. According to a New York Times
Article titled "State Faults Care for the Disabled", published on March
22'1, 2012 by Dan Hakim, "Nearly 300,000 disabled and mentally ill New
Yorkers face a 'needless risk of harm' because of conflicting regu-
lations and a lack of oversight..." Further, "ten percent of deaths of
the developmentally disabled in state care were listed in a state data-
base as having occurred from unknown causes, suggesting widespread fail-
ures in efforts to determine why people die in state care".
The NYSED, under the guise of ostensibly complying with Billy's Law --
which is inapplicable to the NYSED's policies and practices -- requires
the search for an in-state transfer program to be undertaken not for
reasons of safety, but rather as a revenue raising measure. The NYSED's
policies and practices, moreover, conflict with the rights of parents
and children to receive free appropriate public education ("FAPE") in
accordance with federal and state education laws. The NYSED is, thereby,
encroaching on the primary legal responsibility of local school
districts to make an individualized determination of the proper disabil-
ity classification and special education program placement for each
child.
A quarter of a century ago, the NYSED's practice was to summarily reject
placements in non-public schools. That practice, however, was struck
down by a federal court in 1989 which held that the NYSED had over-
stepped its legal authority. See Louis M. v. Arnbach, 714 F.Supp. 1276
(N.D.N.Y. 1989). Unfortunately, the NYSED is once again overstepping its
authority by usurping the primary legal responsibility of school
districts to make placement decisions. Tellingly, the NYSED was a party
in the case of Louis v. Ambach and certain of its key personnel,
employed by the NYSED both during the pendency of that case and present-
ly, know of this Court decision. Yet, the NYSED deliberately persists
to this day in doing indirectly that which it knows the law directly
forbids.
While the NYSED's instructions to local school districts regarding the
procedure for applications for reimbursement accurately advise the
districts that the NYSED is legally responsible to pay for the
district's placement, the financial consequences to the districts of
declining to comply with the NYSED's requirement to exhaust all possi-
bilities for an in-state transfer are so great, that in reality,
districts have no choice but to choreograph an unnecessary and poten-
tially harmful annual search, to parents and children alike, for an
in-state transfer program. Local school districts are being thrust into
an adversarial relationship with the families of the children they are
bound to serve by being financially pressured by the NYSED to deviate
from the district's own judgment that the child should remain in the
out-of-state program. Parents have to fight for their children to remain
in a school in which they are happy and thriving. Further, the parents
of these fragile children, who desperately need stability in their
educational and treatment programs, know that a transfer to another
school is almost certainly going to cause regression, anxiety, or worse
for their children. By forcing parents to annually re-apply despite the
child's progress, and to endure the present rigorous re-application
process, parents are being denied their legal right to meaningfully
participate with the local school board in deciding where their
special-needs child's academic and therapeutic growth are best met.
The NYSED is impermissibly invoking its reimbursement regulations in a
manner that not only forces but incentivizes school districts to make
decisions that clearly are not in the best interest of the child, or
consistent with the child's Individualized Educational Programs ("IEP").
It is disingenuously doing so by creating grounds for refusing to legit-
imately reimburse local school districts, without cause, in order to
advance its fiscal interest of favoring in-state vendors. Essentially,
the NYSED has commandeered the rote of the local school district in
making the ultimate placement decision by obligating families to re-ap-
ply every year. Such action places an immense administrative burden on
the district and produces anxiety for both parents and their children,
who fear the threatened disruption of the status quo which is amply
satisfying their child's educational and treatment needs. The IEP team
should be permitted to make the final decision concerning placement in
the child's best interest, detached and unfettered from the bureaucracy
of the NYSED.
In addition, parents of autistic children are forced annually to support
a virtual cottage industry of specialized attorneys to challenge in
Federal court the failure of local school districts to approve out-of-
state placements because of NYSED regulations. Significantly, the
Federal court under IDEA (Individual's with Disabilities Act) is
empowered to award attorney's fees against the State of New York for the
legal fees paid by parents. At this time, neither the state nor the
parents can afford such a needless waist of resources because of the
ill-conceived policy of NYSED, which this bill seeks to remedy.
This bill will restore confidence and pride that New York State is truly
committed to assisting and supporting the educational and treatment
needs of our special-needs children and to allowing local school
districts and the IEP team to make those placement decisions in the
child's best interest.
PRIOR LEGISLATIVE HISTORY: A.9876 of 2012
FISCAL IMPLICATIONS: None.
EFFECTIVE DATE: This act shall take effect on the first day of July
after it shall have become a law; provided, however, that effective
immediately, the addition, amendment, and/or repeal of any rule or regu-
lation necessary for the timely implementation of this act on its effec-
tive date are authorized and directed to be made and completed on or
before such effective date.
