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New York State Department Of Education: SUPPORT BILL NUMBER:S7618 - My son is counting on it

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Our son Max was diagnosed with an Autism Spectrum Disorder at the age of 22 months. Services were started at 12 months of age including speech, PT, OT and special education. Throughout the years Max has done well in acquiring many skills but struggled with pragmatic language, sensory issues, social/emotional development, aggression, tantrums, perseveration and more. As Max grew - so did his frustration. Max required more structure than any one single program was ever able to provide. By age 8 Maxwell had been hospitalized multiple times for aggression and danger to himself and others, both at home and at school. Even sending a teacher to the hospital for acting out and striking her. It was decided by all that Max would benefit by a very structured, intensive, behavioral 24 hour a day program or Max did not stand a chance in the future. Max was initially placed at a program that claimed to serve children on the spectrum. We later found out that the majority of the population were emotionally disturbed and behavior problems - not at all like Max. Because Max lacks the ability to make friends or be among typically developing peers, he was often bullied and beat up. He was a "weirdo" at this program due to his quirks and tics. At 9 years old Max lost 20lbs, had multiple bruises and black eyes and was scared for his life. He suffered from extreme anxiety and his medications were increased. (This was a NYS program) We pulled him out of the placement after a child abuse and neglect report was filed on Max's behalf by an anonymous employee. After many attempts to find an appropriate program..... we found GLENHOLME in CT. We were very pleased at what we saw on the tour.  Max began at Glenholme in 2010. Glenholme is a token economy ABA based program tailored specifically for non-violent children that need structure and safety. Max has grown academically, emotionally and in every way possible. Max has learned to play the piano, the guitar, and has learned acting and singing.  He acts in school plays. He is part of the school news, he does community service and looks forward to each and every day of his life. NOW....The NYS Education Department wants to pull Max from his placement because it is in CT. They want to put him into a school as far as 260 miles from home because that would be in NY!!!!  Max is extremely fragile - he suffers extreme anxiety and needs to stay where he is safe and developing and being educated appropriately. Why is that the State tries their hardest to keep foster kids from being bounced around but when it comes to my child with special one cares about his emotional well-being?  We can not afford Special Education attorney costs year after year after year. Our son is thriving, he is being appropriately educated and has made friends. He smiles every day. Please help us keep him where he belongs.  SUPPORT THIS BILL!!!!

An act
to amend the education law, in relation to children with handicapping
conditions attending an
educational facility located outside the state

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 policies 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.

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 appropriately 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.

N.Y. Soc. Servo 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
Governor 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, 2012 by Dan Hakim, "Nearly 300,000 disabled and mentally
ill New Yorkers face a 'needless risk of harm' because of conflicting
regulations and a lack of oversight..." Further, "ten percent of
deaths of the developmentally disabled in state care were listed in a
state database as having occurred from unknown causes, suggesting
widespread failures 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 disability 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
overstepped its legal authority. See Louis M. V. Ambach, 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 presently, 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
possibilities for an in-state transfer are so great, that in reality,
districts have no choice but to choreograph an unnecessary and
potentially 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
It is disingenuously doing so by creating grounds for refusing to
legitimately 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-apply 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 waste 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.

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