Section 4401. Definitions

As  referred  to  in this article. * 1. A "child
  with a disability" or "student with a disability" means a  person  under
  the  age of twenty-one who is entitled to attend public schools pursuant
  to section thirty-two hundred two of this chapter and  who,  because  of
  mental,  physical  or  emotional  reasons  can  only receive appropriate
  educational opportunities from a program of special education. Such term
  does not include a child whose educational needs are  due  primarily  to
  unfamiliarity  with  the  English  language,  environmental, cultural or
  economic factors. Lack of appropriate instruction in reading,  including
  in  the  essential  components  of  reading  instruction  as  defined in
  subsection three of section twelve hundred eight of the  elementary  and
  secondary  education  act  of  nineteen  hundred  sixty-five, or lack of
  appropriate instruction in mathematics or  limited  English  proficiency
  shall  not  be  the  determinant  factor  in  identifying a student as a
  student with a disability. "Special education" means specially  designed
  instruction which includes special services or programs as delineated in
  subdivision two of this section, and transportation, provided at no cost
  to  the parents to meet the unique needs of a child with a disability. A
  "child with a handicapping condition" means a child with a disability.
    * NB Effective until June 30, 2012
    * 1. A "child with a disability" or "student with a disability"  means
  a  person  under  the age of twenty-one who is entitled to attend public
  schools pursuant to section thirty-two hundred two of this  chapter  and
  who,  because  of mental, physical or emotional reasons can only receive
  appropriate  educational  opportunities  from  a  program   of   special
  education.  Such  term  does not include a child whose educational needs
  are  due  primarily  to  unfamiliarity  with   the   English   language,
  environmental,  cultural  or  economic  factors.  Lack of instruction in
  reading or mathematics or limited English proficiency shall not  be  the
  determinant  factor  in  identifying  a  student  as  a  student  with a
  disability. "Special education"  means  specially  designed  instruction
  which includes special services or programs as delineated in subdivision
  two  of  this  section,  and  transportation, provided at no cost to the
  parents to meet the unique needs of a child with a disability. A  "child
  with a handicapping condition" means a child with a disability.
    * NB Effective June 30, 2012
    2.  "Special  services  or  programs".  For  purposes of this article,
  special services or programs shall mean the following:
    a. Special classes, transitional  support  services,  resource  rooms,
  direct  and indirect consultant teacher services, transition services as
  defined in  subdivision  nine  of  this  section,  assistive  technology
  devices as defined under federal law, travel training, home instruction,
  and  special  teachers  to include itinerant teachers as provided by the
  schools of the district of residence with such terms and services to  be
  defined by regulations of the commissioner.
    b. Contracts with other districts for special services or programs.
    c.  Contracts  with or special services or programs provided by boards
  of cooperative educational services.
    d. Appointment by the commissioner to a  state  school  in  accordance
  with   article  eighty-seven  or  eighty-eight  of  this  chapter  or  a
  state-supported school in accordance with article  eighty-five  of  this
  chapter.
    e.  Contracts  with  private  non-residential  schools which have been
  approved by the commissioner and which are within the state for  special
  services or programs.
    f.  Contracts  with  private  non-residential  schools which have been
  approved by the commissioner and which are  outside  of  the  state  for
  special services or programs.

    g. Contracts with private residential schools which have been approved
  by  the commissioner and which are within the state for special services
  or programs.
    h. Contracts with private residential schools which have been approved
  by the commissioner and which are outside the state for special services
  or programs.
    i.   Contracts   with   the   state   university   at  Binghamton  for
  non-residential special services or programs at the children's unit  for
  treatment and evaluation which have been approved by the commissioner.
    j. Provision of educational services in a residential facility for the
  care  and treatment of students with disabilities under the jurisdiction
  of a state agency other than the department.
    * k. Related services which shall in appropriate cases be furnished to
  students with disabilities shall include audiology, counseling including
  rehabilitation  counseling  services,  occupational  therapy,   physical
  therapy, speech pathology, medical services as defined by regulations of
  the commissioner, psychological services, school health services, school
  nurse  services,  school  social  work, assistive technology services as
  defined  under  federal  law,  interpreting  services,  orientation  and
  mobility  services, parent counseling and training and other appropriate
  developmental, corrective or  other  support  services  and  appropriate
  access  to  recreation. Such term does not include a medical device that
  is surgically implanted, the optimization of that  device's  functioning
  (e.g.,  mapping), maintenance of that device, or the replacement of such
  device.
    * NB Effective until June 30, 2012
    * k. Related services which shall in appropriate cases be furnished to
  students with disabilities shall include audiology, counseling including
  rehabilitation  counseling  services,  occupational  therapy,   physical
  therapy, speech pathology, medical services as defined by regulations of
  the commissioner, psychological services, school health services, school
  social work, assistive technology services as defined under federal law,
  orientation  and  mobility  services, parent counseling and training and
  other appropriate developmental, corrective or  other  support  services
  and appropriate access to recreation.
    * NB Effective June 30, 2012
    l.  Contracts  for  residential  or  nonresidential  placements with a
  special act school district listed in chapter five hundred sixty-six  of
  the laws of nineteen hundred sixty-seven.
    m.   Provision  of  nonresidential  education  services  in  Fairmount
  children's center, which facility has been approved by the  commissioner
  for  the  education of students with disabilities. Students placed under
  the provisions of this paragraph shall not be  eligible  for  state  aid
  under  the  provisions of sections thirty-six hundred two and thirty-six
  hundred two-c of this chapter.
    n. Formalized agreements for the provision of transition  services  as
  defined  in  subdivision  nine  of  this  section  in  programs  such as
  vocational training programs approved by the department  or  by  another
  state  agency.  Nothing  in  this  article shall be construed to relieve
  another agency of responsibility to provide or pay  for  any  transition
  service  that  the  agency  would  otherwise  provide  to  students with
  disabilities who meet the eligibility criteria of that agency.
    3. "Maintenance". For purposes of  this  article  "maintenance"  shall
  mean the amount charged for room and board and allocable debt service as
  determined  by  the  commissioner for the living unit of the residential
  facility by a residential school and such  reasonable  medical  expenses
  actually  and necessarily incurred by a handicapped child while actually
  in attendance at  a  residential  school,  provided  that  such  medical

  expenses shall be for diagnostic, evaluative, educationally related, and
  emergency  care  services as defined by regulations of the commissioner.
  Such amount, which  shall  not  include  expenses  which  are  otherwise
  reimbursable  to  a  residential  facility  by a federal, state or local
  agency, shall be approved by the commissioner of social services and the
  director of the division of  the  budget  and  shall  not  be  otherwise
  payable or reimbursable.
    4.   "Transportation   expense."   For  the  purposes  of  determining
  transportation aid pursuant to this  article,  "transportation  expense"
  shall   mean   any   cost  incurred  by  the  school  district  for  the
  transportation of a handicapped child  pursuant  to  the  provisions  of
  subdivision  four  of  section  forty-four  hundred two of this article,
  notwithstanding any minimum or maximum  aidable  limits  established  by
  other  provisions of the education law or pursuant to regulations of the
  commissioner or school district,  allowed  pursuant  to  the  applicable
  provisions  of  parts  two  and  three  of article seventy-three of this
  chapter, provided, however, that such transportation  shall  not  be  in
  excess  of  fifty  miles  from the home of such pupil to the appropriate
  special service or program unless the commissioner shall certify that no
  appropriate non-residential special  service  or  program  is  available
  within  such  fifty  miles,  and  that the commissioner may establish by
  regulation a maximum number of trips between  a  pupil's  home  and  the
  private  residential  school which provides special services or programs
  to such pupil. Such cost shall include the cost  of  joint  or  regional
  transportation  provided  by  school  districts or boards of cooperative
  educational services for such purposes and subject to the same limits.
    5. "Tuition" shall mean  the  per  pupil  cost  of  all  instructional
  services,   supplies  and  equipment,  the  operation  of  instructional
  facilities and allocable debt service for the instructional  facilities,
  as  determined  by  the commissioner. Approved tuition shall be computed
  from expenditures from which no  revenue  has  been  received  from  the
  following sources:
    (a) receipts from the federal government;
    (b) any cash receipts which reduce the cost of an item applied against
  the item therefor, except gifts, donations and earned interest, and
    (c) any refunds made or any apportionment or payment received from the
  state   for   experimental  or  special  programs  as  approved  by  the
  commissioner.
    6. "Excess cost" shall mean the difference between the tuition and the
  sum of the following:
    a. the school district basic contribution as  defined  in  subdivision
  eight of this section; and
    b.  the  amount  of  federal funds received by the school district and
  expended for such pupil which in the judgment of the commissioner  shall
  be deemed duplicative.
    7.  "Excess cost aid ratio" for a school district shall be computed by
  subtracting from one the product obtained  by  multiplying  fifteen  per
  centum  by  the  combined  wealth ratio as defined in section thirty-six
  hundred two of this chapter. This aid ratio  shall  be  expressed  as  a
  decimal  carried to three places without rounding, but shall not be less
  than fifty hundredths, nor more than one.
    8. "School district basic contribution" shall mean an amount equal  to
  the  total  school district local property and non-property tax levy for
  the base year divided by the base year public school district enrollment
  of resident pupils of the school district as defined in paragraph  n  of
  subdivision one of section thirty-six hundred two of this chapter.
    * 9.  "Transition services" shall mean a coordinated set of activities
  for  a  student  with  a   disability,   designed   to   be   within   a

  results-oriented  process, that is focused on improving the academic and
  functional achievement of the student with a  disability  to  facilitate
  movement from school to post-school activities, including post-secondary
  education,   vocational   education,  integrated  employment  (including
  supported employment), continuing and adult education,  adult  services,
  independent  living,  or community participation. The coordinated set of
  activities shall be based upon the student's strengths, preferences  and
  interests,  and  shall  include instruction, related services, community
  experiences, the development of employment and other  post-school  adult
  living  objectives,  and,  if  appropriate,  acquisition of daily living
  skills and provision of a functional vocational evaluation.
    * NB Effective until June 30, 2012
    * 9. "Transition services" shall mean a coordinated set of  activities
  for  a  student  with  a disability, designed within an outcome-oriented
  process, which promotes movement from school to post-school  activities,
  including  post-secondary  education,  vocational  training,  integrated
  competitive employment (including supported employment), continuing  and
  adult  education,  adult  services,  independent  living,  or  community
  participation. The coordinated set of activities shall be based upon the
  individual  student's  needs,  taking   into   account   the   student's
  preferences  and  interests,  and  shall  include  instruction,  related
  services, community experiences, the development of employment and other
  post-school adult living objectives, and, if appropriate, acquisition of
  daily living skills and functional vocational evaluation.
    * NB Effective June 30, 2012
    10. Notwithstanding any inconsistent provisions of this article, where
  a private not-for-profit school enters into a lease, sublease  or  other
  agreement  with  the  dormitory  authority  pursuant  to section sixteen
  hundred  eighty  of  the  public  authorities  law,  the  tuition  rates
  established  by  the  commissioner  pursuant  to  this  section shall be
  established in two parts, one part of which shall be the cost per  child
  of  the  annual rental payment pursuant to such lease, sublease or other
  agreement to be paid by the  school  district  or  the  social  services
  district,  as  the case may be, to the fund established by this chapter;
  the remaining part shall be the tuition amount to be paid to the private
  not-for-profit school.
    11. Notwithstanding any inconsistent provisions of this article, where
  the special act school district enters into a lease, sublease  or  other
  agreement  with the dormitory authority pursuant to section four hundred
  seven-a  of  this  chapter,  the  tuition  rates  established   by   the
  commissioner pursuant to this section shall be established in two parts,
  one  part  of  which  shall  be  the cost per child of the annual rental
  payment pursuant to such section four hundred seven-a of this chapter to
  be paid by the school district or the social services district,  as  the
  case may be, to the fund established in such section; the remaining part
  shall  be  the  tuition  amount  to  be  paid  to the special act school
  district.