Bill Text: NY A07639 | 2017-2018 | General Assembly | Amended
Bill Title: Amends the definition of a student with a disability.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2018-04-20 - print number 7639a [A07639 Detail]
Download: New_York-2017-A07639-Amended.html
STATE OF NEW YORK ________________________________________________________________________ 7639--A 2017-2018 Regular Sessions IN ASSEMBLY May 5, 2017 ___________ Introduced by M. of A. THIELE -- read once and referred to the Committee on Education -- recommitted to the Committee on Education in accord- ance with Assembly Rule 3, sec. 2 -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said commit- tee AN ACT to amend the education law, in relation to the definition of a student with a disability The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Subdivision 1 of section 4401 of the education law, as 2 amended by chapter 378 of the laws of 2007, is amended to read as 3 follows: 4 1. A "child with a disability" or "student with a disability" means a 5 person under the age of twenty-one who is entitled to attend public 6 schools pursuant to section thirty-two hundred two of this chapter and 7 who, because of mental, physical or emotional reasons can only receive 8 appropriate educational opportunities from a program of special educa- 9 tion. Such term does not include a child whose educational needs are due 10 primarily to unfamiliarity with the English language, environmental, 11 cultural or economic factors. Lack of appropriate instruction in read- 12 ing, including in the essential components of reading instruction as 13 defined in subsection three of section twelve hundred eight of the 14 elementary and secondary education act of nineteen hundred sixty-five, 15 or lack of appropriate instruction in mathematics or limited English 16 proficiency shall not be the determinant factor in identifying a student 17 as a student with a disability. Such disabilities shall include but not 18 be limited to: 19 (a) Autism means a developmental disability significantly affecting 20 verbal and nonverbal communication and social interaction, generally 21 evident before age three, that adversely affects a student's educational 22 performance. Other characteristics often associated with autism are EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD10922-04-8A. 7639--A 2 1 engagement in repetitive activities and stereotyped movements, resist- 2 ance to environmental change or change in daily routines, and unusual 3 responses to sensory experiences. The term does not apply if a student's 4 educational performance is adversely affected primarily because the 5 student has an emotional disturbance as defined in paragraph (d) of this 6 subdivision. A student who manifests the characteristics of autism after 7 age three could be diagnosed as having autism if the criteria in this 8 paragraph are otherwise satisfied. 9 (b) Deafness means a hearing impairment that is so severe that the 10 student is impaired in processing linguistic information through hear- 11 ing, with or without amplification, that adversely affects a student's 12 educational performance. 13 (c) Deaf-blindness means concomitant hearing and visual impairments, 14 the combination of which causes such severe communication and other 15 developmental and educational needs that they cannot be accommodated in 16 special education programs solely for students with deafness or students 17 with blindness. 18 (d) Emotional disturbance means a condition exhibiting one or more of 19 the following characteristics over a long period of time and to a marked 20 degree that adversely affects a student's educational performance: 21 (1) an inability to learn that cannot be explained by intellectual, 22 sensory, or health factors; 23 (2) an inability to build or maintain satisfactory interpersonal 24 relationships with peers and teachers; 25 (3) inappropriate types of behavior or feelings under normal circum- 26 stances; 27 (4) a generally pervasive mood of unhappiness or depression; or 28 (5) a tendency to develop physical symptoms or fears associated with 29 personal or school problems. The term includes schizophrenia. The term 30 does not apply to students who are socially maladjusted, unless it is 31 determined that they have an emotional disturbance. 32 (e) Hearing impairment means an impairment in hearing, whether perma- 33 nent or fluctuating, that adversely affects the child's educational 34 performance but that is not included under the definition of deafness in 35 this section. 36 (f) Learning disability means a disorder in one or more of the basic 37 psychological processes involved in understanding or in using language, 38 spoken or written, which manifests itself in an imperfect ability to 39 listen, think, speak, read, write, spell, or to do mathematical calcu- 40 lations. The term includes such conditions as perceptual disabilities, 41 brain injury, minimal brain dysfunction, and developmental aphasia. The 42 term does not include learning problems that are primarily the result of 43 visual, hearing or motor disabilities, of an intellectual disability, of 44 emotional disturbance, or of environmental, cultural or economic disad- 45 vantage. 46 (g) Intellectual disability means significantly subaverage general 47 intellectual functioning, existing concurrently with deficits in adap- 48 tive behavior and manifested during the developmental period, that 49 adversely affects a student's educational performance. 50 (h) Multiple disabilities means concomitant impairments (such as 51 intellectual disability-blindness, intellectual disability-orthopedic 52 impairment, etc.), the combination of which cause such severe educa- 53 tional needs that they cannot be accommodated in a special education 54 program solely for one of the impairments. The term does not include 55 deaf-blindness.A. 7639--A 3 1 (i) Orthopedic impairment means a severe orthopedic impairment that 2 adversely affects a student's educational performance. The term includes 3 impairments caused by congenital anomaly (e.g., clubfoot, absence of 4 some member, etc.), impairments caused by disease (e.g., poliomyelitis, 5 bone tuberculosis, etc.), and impairments from other causes (e.g., cere- 6 bral palsy, amputation, and fractures or burns which cause contrac- 7 tures). 8 (j) Other health-impairment means having limited strength, vitality or 9 alertness, including a heightened alertness to environmental stimuli, 10 that results in limited alertness with respect to the educational envi- 11 ronment, that is due to chronic or acute health problems, including but 12 not limited to a heart condition, tuberculosis, rheumatic fever, nephri- 13 tis, asthma, sickle cell anemia, hemophilia, epilepsy, lead poisoning, 14 leukemia, diabetes, attention deficit disorder or attention deficit 15 hyperactivity disorder or tourette syndrome, which adversely affects a 16 student's educational performance. 17 (k) Speech or language impairment means a communication disorder, such 18 as stuttering, impaired articulation, a language impairment or a voice 19 impairment, that adversely affects a student's educational performance. 20 (l) Traumatic brain injury means an acquired injury to the brain 21 caused by an external physical force or by certain medical conditions 22 such as stroke, encephalitis, aneurysm, and anoxia or brain tumors with 23 resulting impairments that adversely affect educational performance. The 24 term includes open or closed head injuries or brain injuries from 25 certain medical conditions resulting in mild, moderate or severe impair- 26 ments in one or more areas, including cognition, language, memory, 27 attention, reasoning, abstract thinking, judgment, problem solving, 28 sensory, perceptual and motor abilities, psychosocial behavior, physical 29 functions, information processing, and speech. The term does not include 30 injuries that are congenital or caused by birth trauma. 31 (m) Visual impairment including blindness means an impairment in 32 vision that, even with correction, adversely affects a student's educa- 33 tional performance. The term includes both partial sight and blindness. 34 (n) Dyslexia means a specific learning disability that is neurobiolog- 35 ical in origin. It is characterized at the level of a keen observer as 36 frustration, withdrawal, anxiety, aversion to homework and schoolwork, 37 underperformance, and an undoing of the personal sense of ability, 38 psycho-somatic symptoms that are triggered by school-failure to read or 39 perform well at spelling, written expression or other language tasks, or 40 mixing up right and left hands. Other observable characteristics 41 include difficulties with accurate and/or fluent word recognition and by 42 poor spelling and decoding abilities. These difficulties typically 43 result from a deficit in the phonological component of language that is 44 often unexpected in relation to other cognitive abilities and the 45 provision of effective classroom instruction. Secondary consequences may 46 include problems in reading comprehension and reduced reading experience 47 that can impede growth of vocabulary and background knowledge. 48 (o) "Special education" means specially designed instruction which 49 includes special services or programs as delineated in subdivision two 50 of this section, and transportation, provided at no cost to the parents 51 to meet the unique needs of a child with a disability. A "child with a 52 handicapping condition" means a child with a disability. 53 § 2. Subdivision 1 of section 4401 of the education law, as amended by 54 chapter 311 of the laws of 1999, is amended to read as follows: 55 1. A "child with a disability" or "student with a disability" means a 56 person under the age of twenty-one who is entitled to attend publicA. 7639--A 4 1 schools pursuant to section thirty-two hundred two of this chapter and 2 who, because of mental, physical or emotional reasons can only receive 3 appropriate educational opportunities from a program of special educa- 4 tion. Such term does not include a child whose educational needs are due 5 primarily to unfamiliarity with the English language, environmental, 6 cultural or economic factors. Lack of instruction in reading or math- 7 ematics or limited English proficiency shall not be the determinant 8 factor in identifying a student as a student with a disability. Such 9 disabilities shall include but not be limited to: 10 (a) Autism means a developmental disability significantly affecting 11 verbal and nonverbal communication and social interaction, generally 12 evident before age three, that adversely affects a student's educational 13 performance. Other characteristics often associated with autism are 14 engagement in repetitive activities and stereotyped movements, resist- 15 ance to environmental change or change in daily routines, and unusual 16 responses to sensory experiences. The term does not apply if a student's 17 educational performance is adversely affected primarily because the 18 student has an emotional disturbance as defined in paragraph (d) of this 19 subdivision. A student who manifests the characteristics of autism after 20 age three could be diagnosed as having autism if the criteria in this 21 paragraph are otherwise satisfied. 22 (b) Deafness means a hearing impairment that is so severe that the 23 student is impaired in processing linguistic information through hear- 24 ing, with or without amplification, that adversely affects a student's 25 educational performance. 26 (c) Deaf-blindness means concomitant hearing and visual impairments, 27 the combination of which causes such severe communication and other 28 developmental and educational needs that they cannot be accommodated in 29 special education programs solely for students with deafness or students 30 with blindness. 31 (d) Emotional disturbance means a condition exhibiting one or more of 32 the following characteristics over a long period of time and to a marked 33 degree that adversely affects a student's educational performance: 34 (1) an inability to learn that cannot be explained by intellectual, 35 sensory, or health factors; 36 (2) an inability to build or maintain satisfactory interpersonal 37 relationships with peers and teachers; 38 (3) inappropriate types of behavior or feelings under normal circum- 39 stances; 40 (4) a generally pervasive mood of unhappiness or depression; or 41 (5) a tendency to develop physical symptoms or fears associated with 42 personal or school problems. The term includes schizophrenia. The term 43 does not apply to students who are socially maladjusted, unless it is 44 determined that they have an emotional disturbance. 45 (e) Hearing impairment means an impairment in hearing, whether perma- 46 nent or fluctuating, that adversely affects the child's educational 47 performance but that is not included under the definition of deafness in 48 this section. 49 (f) Learning disability means a disorder in one or more of the basic 50 psychological processes involved in understanding or in using language, 51 spoken or written, which manifests itself in an imperfect ability to 52 listen, think, speak, read, write, spell, or to do mathematical calcu- 53 lations. The term includes such conditions as perceptual disabilities, 54 brain injury, minimal brain dysfunction, and developmental aphasia. The 55 term does not include learning problems that are primarily the result of 56 visual, hearing or motor disabilities, of an intellectual disability, ofA. 7639--A 5 1 emotional disturbance, or of environmental, cultural or economic disad- 2 vantage. 3 (g) Intellectual disability means significantly subaverage general 4 intellectual functioning, existing concurrently with deficits in adap- 5 tive behavior and manifested during the developmental period, that 6 adversely affects a student's educational performance. 7 (h) Multiple disabilities means concomitant impairments (such as 8 intellectual disability-blindness, intellectual disability-orthopedic 9 impairment, etc.), the combination of which cause such severe educa- 10 tional needs that they cannot be accommodated in a special education 11 program solely for one of the impairments. The term does not include 12 deaf-blindness. 13 (i) Orthopedic impairment means a severe orthopedic impairment that 14 adversely affects a student's educational performance. The term includes 15 impairments caused by congenital anomaly (e.g., clubfoot, absence of 16 some member, etc.), impairments caused by disease (e.g., poliomyelitis, 17 bone tuberculosis, etc.), and impairments from other causes (e.g., cere- 18 bral palsy, amputation, and fractures or burns which cause contrac- 19 tures). 20 (j) Other health-impairment means having limited strength, vitality or 21 alertness, including a heightened alertness to environmental stimuli, 22 that results in limited alertness with respect to the educational envi- 23 ronment, that is due to chronic or acute health problems, including but 24 not limited to a heart condition, tuberculosis, rheumatic fever, nephri- 25 tis, asthma, sickle cell anemia, hemophilia, epilepsy, lead poisoning, 26 leukemia, diabetes, attention deficit disorder or attention deficit 27 hyperactivity disorder or tourette syndrome, which adversely affects a 28 student's educational performance. 29 (k) Speech or language impairment means a communication disorder, such 30 as stuttering, impaired articulation, a language impairment or a voice 31 impairment, that adversely affects a student's educational performance. 32 (l) Traumatic brain injury means an acquired injury to the brain 33 caused by an external physical force or by certain medical conditions 34 such as stroke, encephalitis, aneurysm, and anoxia or brain tumors with 35 resulting impairments that adversely affect educational performance. The 36 term includes open or closed head injuries or brain injuries from 37 certain medical conditions resulting in mild, moderate or severe impair- 38 ments in one or more areas, including cognition, language, memory, 39 attention, reasoning, abstract thinking, judgment, problem solving, 40 sensory, perceptual and motor abilities, psychosocial behavior, physical 41 functions, information processing, and speech. The term does not include 42 injuries that are congenital or caused by birth trauma. 43 (m) Visual impairment including blindness means an impairment in 44 vision that, even with correction, adversely affects a student's educa- 45 tional performance. The term includes both partial sight and blindness. 46 (n) Dyslexia means a specific learning disability that is neurobiolog- 47 ical in origin. It is characterized at the level of a keen observer as 48 frustration, withdrawal, anxiety, aversion to homework and schoolwork, 49 underperformance, and an undoing of the personal sense of ability, 50 psycho-somatic symptoms that are triggered by school-failure to read or 51 perform well at spelling, written expression or other language tasks, or 52 mixing up right and left hands. Other observable characteristics 53 include difficulties with accurate and/or fluent word recognition and by 54 poor spelling and decoding abilities. These difficulties typically 55 result from a deficit in the phonological component of language that is 56 often unexpected in relation to other cognitive abilities and theA. 7639--A 6 1 provision of effective classroom instruction. Secondary consequences may 2 include problems in reading comprehension and reduced reading experience 3 that can impede growth of vocabulary and background knowledge. 4 (o) "Special education" means specially designed instruction which 5 includes special services or programs as delineated in subdivision two 6 of this section, and transportation, provided at no cost to the parents 7 to meet the unique needs of a child with a disability. A "child with a 8 handicapping condition" means a child with a disability. 9 § 3. This act shall take effect immediately; provided, however, that 10 it shall not affect any student's individualized education program that 11 has been approved for the 2018--2019 school year; provided, further, 12 that the amendments to subdivision 1 of section 4401 of the education 13 law made by section one of this act shall be subject to the expiration 14 and reversion of such subdivision pursuant to section 22 of chapter 352 15 of the laws of 2005, as amended, when upon such date the provisions of 16 section two of this act shall take effect.