(a) Approval of private schools for students with disabilities funded pursuant to article 89 of the Education Law.

1. (1) General.

   1. (i) Private schools and special-act school districts for students with disabilities, including summer schools, shall be eligible for approval by the commissioner to receive public funds for the education of students with disabilities, provided such schools meet the criteria in this Part.
   2. (ii) Facilities of educational programs located outside the continental United States shall not be eligible for approval.
   3. (iii) Reimbursement rates shall be calculated according to New York State statutes and applicable regulations for all approved private schools, including out-of-state schools and for special-act school districts. However, the commissioner may accept reimbursement rates for out-of-state schools calculated by the state in which the school is located, provided those rates have been approved by the state in which the school is located.
   4. (iv) Private schools seeking initial approval to be reimbursed with public funds shall have access to sufficient capital or other financial resources, other than revenues expected from New York State or local school districts, to cover all operating, property maintenance, leasing or purchase costs during the year of conditional approval.

2. (2) Approval of private schools for reimbursement with public funds.

   1. (i) Conditional approval for private schools shall be limited to a period of one school year, or the period of time required to complete approval, and will be based on:

      1. (a) submission of program information forms and after September 8, 1995, the submission of documentation of regional need and sufficient evidence to establish that the proposed program will serve only those students who, because of the nature or severity of their disability, would require a separate facility;
      2. (b) submission of budget or financial statement information, including evidence that the school has enough capital or other financial resources, other than State or local sources of revenue, to be able to operate for at least one year;
      3. (c) a fire safety check by the New York State Division of Fire Prevention and Control for in-state private schools, and a State or local fire safety check for out-of-state schools;

      4. (d) for schools operating as corporate entities, evidence of the following:

         1. (1) for in-state not-for-profit schools, a charter or application for a charter from the Board of Regents, incorporating a school authorized to provide special education services;
         2. (2) for in-state for-profit schools, approval by the commissioner of the school's incorporation for the provision of special education; or
         3. (3) for out-of-state schools, a license or charter from the state education agency of the state in which the school is located;
      5. (e) at least one onsite program review visit by program or fiscal staff of the Education Department; and
      6. (f) submission for approval of the school's procedures regarding behavioral interventions, including, if applicable, procedures for the use of aversive interventions.

   2. (ii) Final approval of schools which have had conditional approval:

      1. (a) will be based on at least two site visits by program or fiscal staff of the Education Department during the year of conditional approval; and
      2. (b) will take effect as of the date a final approval letter is issued by the commissioner, or his designee.

3. (3) Denial or termination of private school approval. Private schools may be denied approval or removed from New York's list of private schools approved for reimbursement with public funds, or such approval may be terminated according to the following procedure:

   1. (i) The commissioner or his/her designee will notify the school in writing of the reasons why denial or termination of approval is necessary, including a list of program or financial deficiencies and violations of State and Federal law or regulations which the commissioner believes to exist at the schools.
   2. (ii) Schools may reply to the commissioner's notification within 30 days, addressing the commissioner's statement of reasons, indicating whether deficiencies or violations exist, what steps may be taken to correct conceded deficiencies or violations, and the time period in which deficiencies or violations will be corrected. If no reply is received, termination will be effective 30 days from the date of receipt of the commissioner's notification.
   3. (iii) Requests for a hearing to review a proposed decision to deny or terminate approval may be made to the commissioner's designee. The request shall be made in writing to the commissioner's designee within 10 business days of receipt of a notice of removal from the list.

   4. (iv) Schools may be removed from the approved list five business days after written notice by the commissioner indicating that there is a clear and present danger to the health or safety of students attending the school, and listing the dangerous conditions at the school, including, but not limited to, evidence that an approved private school is using aversive interventions to reduce or eliminate maladaptive behaviors of students without a child- specific exception provided pursuant to section 200.22(e) of this Part or that an approved private school is using aversive interventions in a manner inconsistent with the standards as established in section 200.22(f) of this Part.

      (b) Operation and administration of private schools and State-operated and State-supported schools.

4. (1) Parents of students attending schools governed by this section shall not be asked to make any payments in lieu of, in advance of or in addition to, State, school district or county payments for allowable costs for students placed according to New York State procedures.
5. (2) The confidentiality of pupil records at schools governed by this Part shall be maintained, and parental access to such records shall be permitted, in a manner comparable to that required of school districts pursuant to section 200.2(b)(6) of this Part.
6. (3) Policy on school conduct and discipline. An approved private school, a State-operated school, and a State-supported school shall develop a policy on school conduct and discipline. The content of such policy shall be consistent with the provisions of section 100.2(l)(1)(i)(a)-(d), (f)-(g) of this Title. The discipline of students with disabilities attending any school governed by this section shall be consistent with Part 201 of this Title. The code of conduct developed by the Justice Center pursuant to article 20 of the Executive Law shall govern the conduct of custodians, as such term is defined in section 200.15(b)(1) of this Part, with respect to the safety, dignity and welfare of students attending in-state residential schools governed by this section.
7. (4) The length of the school day shall be comparable to that required by section 175.5 of this Title. The school day shall include instructional services and related services, as required, but shall not include transportation.
8. (5) Instruction for not less than 180 days each year shall be provided for each student. Approved private schools and State-operated and State-supported schools shall submit calendars of such days in session to the commissioner for approval by July 1st of the preceding school year. All approved private schools shall comply with the Education Law regarding attendance. Attendance registers shall be available for inspection by appropriate personnel of the contracting school districts, the department, and the school district in which the school is located. Any day that a school had been is closed and the 180-day requirement was been waived pursuant to an Executive Order(s) of the Governor pursuant to the state of emergency for the COVID-19 crisis shall be waived from the 180-day requirement of this paragraph in accordance with the terms of such Executive Order.
9. (6) Personnel qualifications and screening procedures. All professional instructional and supervisory personnel at schools governed by this section shall be appropriately certified in accordance with the provisions of Part 80 of this Title and section 200.6 of this Part. All noninstructional personnel at residential schools governed by this section shall be appropriately qualified in accordance with the provisions of section 200.15 of this Part. All persons applying to be employees or volunteers at residential schools governed by this section shall be screened in accordance with the provisions of section 200.15(c) of this Part. All persons providing preschool special education services established pursuant to section 4410 of the Education Law shall be screened in accordance with the provisions of sections 424-a and 495(2) and (3) of the Social Services Law.
10. (7) An approved private school, a State-operated school, or a State-supported school shall conform to all applicable fire and safety regulations of the State and municipality in which it is located. Each such school shall cause an annual inspection to be made in the manner set forth in subdivision 3 of section 807-a of the Education Law. A report of such inspection shall be made upon forms supplied by the commissioner and shall be maintained on file at the school. For schools subject to provisions of section 807-a of the Education Law, the report prepared pursuant thereto shall be deemed equivalent.

11. (8) Aversive interventions prohibited.

    1. (i) Except as provided in section 200.22(e) of this Part, an approved private school serving school age students with disabilities, a State-operated school, or a State-supported school is prohibited from using aversive interventions to reduce or eliminate maladaptive behaviors of students
    2. (ii) An approved preschool program is prohibited from using aversive interventions with preschool students with disabilities without exception.

12. (9) Reporting of child abuse in an educational setting. Schools governed by this section shall comply with the requirements relating to reporting and training relating to child abuse in an educational setting set forth in article 23-B of the Education Law and child abuse and maltreatment as set forth in Social Services Law 413 through 420 and section 100.2(hh) of this Title.

    (c) Additional operational and administrative provisions related solely to private schools.

13. (1) Application. An application shall be made to the commissioner by the board of education for approval of the placement of a student with a disability in an approved private educational facility which has been determined to be the least restrictive environment for the student. An annual application for the continued placement of a student with a disability in such approved facility shall be submitted by the board of education to the department prior to June 1st preceding the school year for which such continued placement is sought.
14. (2) No student with a disability shall be removed or transferred from an approved in-state school without the approval of the school district contracting for education of such student pursuant to section 4402 of the Education Law. No student with a disability shall be removed or transferred from an approved out-of-state school without such recommendation by the committee on special education.
15. (3) Educational programs initially approved for reimbursement after September 1, 1981 shall provide instruction to a minimum of 16 students by September 1, 1982.
16. (4) An educational progress report on each student, which describes such student's progress toward meeting the annual goals, shall be provided by the approved school to the committee on special education of the referring district or the referring agency at least annually. Other required data and/or reports shall be made available by the private school to the referring district or agency on request.
17. (5) Residential schools may provide temporary care for persons over the age of 21 who are receiving transitional care pursuant to section 4402(1)(b)(4)(e) of the Education Law. When an individual receiving transitional care is about to be transferred from a residential school to an adult placement, a transfer plan shall be prepared by the residential school and forwarded to the receiving facility, the individual, and unless the individual objects, the parents, guardian or other family members prior to the transfer. The transfer plan shall include any information necessary to facilitate a safe transfer such as specific problems, a schedule for administering medications and behavior unique to the individual. In the event an individual receiving transitional care at a residential school is considered to adversely affect the health, safety and welfare of children residing in the facility, notification may be made by the residential school to the State Education Department to determine the need to discontinue the transitional placement.

18. (6) Policies and procedures relating to the use of aversive interventions. Not later than August 15, 2006, a private school that proposes to use or to continue to use aversive interventions in its program shall submit its written policies and procedures on behavioral interventions to the department. Only those private schools with policies and procedures that are approved pursuant to section 200.22(f)(8) of this Part on or before June 30, 2007 shall be authorized to use such interventions with New York State students. Failure to comply with the provisions of this paragraph may result in revocation of approval to accept new admissions of New York State students or termination of private school approval pursuant to paragraph (a)(3) of this section.

    (d) Appointment of blind, deaf and severely physically disabled students to certain State- operated and State-supported schools pursuant to articles 85, 87 and 88 of the Education Law, chapter 1060 of the Laws of 1974 and chapter 474 of the Laws of 1996.

19. (1) Application for State appointment of deaf, blind, severely physically disabled or severely emotionally disturbed students to State-operated or State-supported schools for the blind, deaf, severely physically disabled or severely emotionally disturbed shall be initiated by parents through application to the commissioner, supported by adequate written evidence of blindness, deafness or severe disability, or by the committee on special education or committee on preschool special education of the school district responsible for the student. The commissioner or the committee on special education or committee on preschool special education will direct the parents to make arrangements at a State-operated or State-supported school designated by the commissioner for an evaluation. Such school shall evaluate the student's special educational needs and eligibility for its program.

    1. (i) With respect to an application for admission to a State-operated school, the State- operated school shall notify the parents and commissioner of the results of such evaluation, and recommend appointment if appropriate in accordance with the procedures set forth below:

       1. (a) Upon receipt of an application for admission of a student who has not been recommended for placement by the committee on special education or committee on preschool special education of the school district responsible for the student, the State- operated school shall immediately notify such school district of such application. The State-operated school shall, upon request, make available to such school district responsible for the student all records in its possession relating to the evaluation, placement and educational performance, including the results of any current evaluations, for each student who has applied for admission or is attending the school.
       2. (b) Prior to any meeting of its multidisciplinary team to develop an individualized education program for a student, either upon initial admission to the school or in an annual review, the State-operated school shall notify the school district responsible for the student of such meeting and shall offer the district the opportunity to identify and present to the multidisciplinary team, an alternative placement recommendation for services in the least restrictive environment. In addition, such notice shall advise the school district of its right to appoint additional members to the multidisciplinary team pursuant to clause (c) of this subparagraph.
       3. (c) If the school district responsible for the child elects to appoint additional members to the multidisciplinary team, it shall send written notice of such election to the State- operated school within seven business days of its receipt of notice pursuant to clause (b) of this subparagraph. A school district which fails to send such notice in a timely manner shall be deemed to have waived its right to appoint additional members pursuant to this clause. In addition to the members required for a committee on special education pursuant to Education Law section 4402(1), the State-operated school's multidisciplinary team shall include any additional members appointed by the board of education of the school district responsible for the student, except as provided in section 200.3(f) of this Part. For each member appointed by the State-operated school, the school district may appoint a corresponding member, including a representative of the committee on special education who is qualified to teach or supervise special education and who is knowledgeable about general education curriculum and resources, a school psychologist, the student's special education teacher, a regular education teacher of the student whenever the student is or may be participating in the regular education environment, a parent member, an individual who can interpret the instructional implications of evaluations, others who are determined to have knowledge or special expertise regarding the student, a physician where the parent requests attendance of the physician member. The commissioner shall determine the location at which the multidisciplinary team meeting will be held. In the event the multidisciplinary team is unable to reach consensus and there is a tie vote on the multidisciplinary team, the parents of the student being discussed shall cast the deciding vote.
       4. (d) The multidisciplinary team shall state the reasons for its recommendation, and submit such recommendation to the commissioner for consideration with regard to the appointment or change in placement of the student at the State-operated school. The multidisciplinary team shall consider any alternative placement recommendation presented by the school district responsible for the student, and, if it rejects the alternative, shall include in its recommendation a statement of its reasons for doing so. If the representatives appointed by the school district responsible for the student disagree with the recommendation of the multidisciplinary team, they shall be entitled to prepare a dissenting opinion on the placement recommendation and to submit such opinion to the commissioner for consideration with regard to the appointment or change in placement of the student at the State-operated school.
       5. (e) The evaluation and placement of students in State-operated schools must be completed in accordance with the timelines established for such procedures in section 200.4 of this Part.
       6. (f) In the case of a student not recommended for appointment to a particular State- operated school, or in the event of a change in a recommendation concerning the classification, placement or provision of a free appropriate public education to a student at a State-operated school, the State-operated school shall notify the parent. Such notification shall be comparable to that required by section 200.5(a) of this Part, shall include all reasons for lack of acceptance of the student into the program or for the change in the recommendation, and shall include suggestions for more appropriate placement or program. The parent may request mediation or may, in accordance with section 200.5(i) of this Part, file with the department a written request for a hearing before an impartial hearing officer who will be designated by the department. Such hearing officer shall not be an employee of the department. The procedures relating to a resolution session, the conduct of the hearing and review of the decision of the hearing officer shall be comparable to those set forth in section 200.5(j) through (k) of this Part.
    2. (ii) With respect to an application for admission of a school-age student to a State- supported school, the school shall report the results of its evaluation to the committee on special education. Upon receipt of such report, the committee on special education shall conduct a meeting in accordance with the provisions of section 200.4(d)(4) of this Part, provided that appropriate representatives of the State-supported school shall be given the opportunity to attend and participate in the meeting which may be held at the State-supported school. The committee may recommend that the commissioner appoint the student to the State-supported school, or it may recommend a different placement. If the parents disagree with the recommendation of the committee on special education, they may request that the board of education appoint an impartial hearing officer to review that recommendation, and the hearing officer shall consider, together with all other relevant information, the evaluation conducted by the State-supported school. If the committee on special education has recommended a placement other than the State-supported school, and the hearing officer finds that such recommendation is inappropriate and that placement in the State-supported school would be appropriate, the hearing officer may order that the board of education recommend to the commissioner that the student be placed in the State-supported school. The decision of the hearing officer may be appealed in accordance with section 4404 of the Education Law.
    3. (iii) With respect to an application for admission of a preschool student with a disability to a State-supported school, the school shall report the results of its evaluation to the committee on preschool special education. Upon receipt of such report, the committee on preschool special education shall conduct a meeting in accordance with the provisions of section 200.16 of this Part. The committee may recommend that the commissioner appoint the student to the State-supported school, or it may recommend a different placement. If the parents disagree with the recommendation of the committee on preschool special education, they may request mediation and/or submit a request for a due process impartial hearing pursuant to section 200.5(i) and (j) of this Part to review that recommendation. The impartial hearing officer shall consider, together with all other relevant information, the evaluation conducted by the State-supported school. If the committee on preschool special education has recommended a placement other than the State-supported school, and the impartial hearing officer finds that such recommendation is inappropriate and that placement in the State-supported school would be appropriate, the impartial hearing officer may order that the board of education recommend to the commissioner that the student be placed in the State- supported school. The decision of the impartial hearing officer may be appealed in accordance with section 4404 of the Education Law.

20. (2) The approval of the commissioner in granting the State appointment, if appropriate, will be determined upon the following criteria:

    1. (i) Students between the ages of 3 and 21 residing in New York State, who are profoundly deaf, i.e., with a loss in excess of 80 db ISO in the better ear, or who are deaf and, based on a full and individual evaluation, are determined to be functionally profoundly deaf, who are deaf-blind, or who are severely physically disabled, may receive appointments to the State-operated or State-supported schools and be included for State support for their education.
    2. (ii) Students residing in New York State who are between the ages of 3 and 21 and who are legally blind may receive appointments to the State-operated or State-supported schools and be included for State support for their education.
    3. (iii) Students between the ages of 3 and 21 residing in New York State who are severely emotionally disturbed may receive appointments to the State-operated or State-supported schools and be included for State support for their education.
    4. (iv) Deaf or blind students appointed on a day basis shall be appointed to the school for the deaf or blind nearest their place of residence; provided that, with the consent of the student's parent, a blind student may be appointed to the Lavelle School for the Blind in the City of New York or the New York Institute for Education of the Blind in the City of New York without regard to which such State-supported school is nearer to the student's place of residence. Students may be appointed to a school for the deaf or blind on a residential basis when daily transportation between the student's place of residence and such school is not feasible, or when it is established to the satisfaction of the commissioner that such placement is necessary to meet the individual educational needs of the student. Appointments for severely physically disabled students to attend the Henry Viscardi School shall be on a day basis only.
    5. (v) The commissioner, or his or her designee, in determining whether to appoint the student to a State-operated school, shall consider whether the placement at the State- operated school is an appropriate placement in the least restrictive environment, taking into account any alternative placement recommended by the school district responsible for the student.
21. (3) If the commissioner, or his or her designee, determines that placement in the State- operated school is not in the least restrictive environment or otherwise disagrees with the recommendation of the State-operated school, the commissioner shall state his or her reasons in writing and shall send the recommendation back to the multidisciplinary team of the State- operated school for reconsideration, with notice to the parents and the school district responsible for the student. If the commissioner refers the recommendation back to the multidisciplinary team for reconsideration, the commissioner shall also notify the parents, the school district responsible for the student and the multidisciplinary team in writing of the need to schedule a meeting to ensure timely placement.
22. (4) If the commissioner declines to make a State appointment of a student who has been recommended for appointment by a State-operated or State-supported school, or if the commissioner seeks to change a student's classification or placement against the recommendation of the State-operated or State-supported school which such student attends, the parent may request mediation or file with the department a written request for a hearing before an impartial hearing officer who will be designated by the department. Such a hearing officer shall not be an employee of the department. The procedures relating to notice and review of a refusal of State appointment or of a change of classification or placement by the commissioner shall be comparable to those set forth in section 200.5(a) through (f) of this Part, and shall be provided by the Education Department. Review of the determination of the hearing officer shall be available by means of a proceeding pursuant to article 4 of the Civil Practice Law and Rules or 20 USC 1415, and may be instituted by any party to the hearing.
23. (5) State-appointed students shall be eligible for transfer between State-operated and/or State-supported schools upon the approval of the commissioner. State-appointed students being considered for transfer shall remain in the school they currently attend until an alternate school placement is finalized. Such transfers shall be subject to the applicable placement and review procedures set forth in paragraph (1) of this subdivision.
24. (6) State-operated or State-supported schools may apply to the commissioner for the termination of the appointment of a student who had been admitted to the school pursuant to subparagraph (1)(i) of this subdivision. An application for this purpose shall set forth the basis for such action and shall be made only after compliance with the applicable notice and review procedures set forth in paragraph (1) of this subdivision. No placement of a school-age student in a State-supported school may be terminated prior to review by the committee on special education. No appointment to a State-operated or State-supported school shall be terminated until the student can be transferred to a more appropriate program without interruption of the continuity of such student's education program.

25. (7) The eligibility of deaf infants to receive educational services pursuant to section 4204-a of the Education Law, and the approval of educational facilities to provide such services, shall be determined in accordance with the provisions of this paragraph.

    1. (i) For the purposes of this paragraph:

       1. (a) Deaf infant means a child of less than three years of age who has a severe hearing loss which precludes the learning of spoken language through the sense of hearing alone except that, commencing July 1, 1991, a child who, as of his or her third birthday, is already receiving services pursuant to section 4204-a of the Education Law may, if the parent chooses, continue to receive such services through August 31st of the calendar year in which the child first becomes eligible to receive services pursuant to section 4410 of the Education Law. Infants who are unable to respond to sounds presented at intensities of 60 decibels (db) sound pressure level (SPL) shall be eligible for special educational assistance in order to develop spoken language. Infants of less than two years of age who are unable to respond at 60 decibels (db) sound pressure level (SPL) may be eligible for such services, provided that they have been recommended by a diagnostic agency.
       2. (b) Approved facilities means the schools for the deaf which are enumerated in section 4201 of the Education Law, and other public and private agencies which have been approved by the commissioner in accordance with the provisions of subparagraph (iii) of this paragraph.
    2. (ii) Eligibility of infant. An annual application for services shall be filed by the parents or legal guardians of deaf infants on forms prescribed by the commissioner. The initial application for each infant shall be accompanied by audiological, otological and other appropriate reports which will be used in determining eligibility for program assistance. If an infant is determined to be eligible, a referral will be made to an approved facility by the commissioner. Continuation in the program shall be dependent upon infant progress reports which shall be submitted quarterly by the facility which each infant attends. If a facility indicates that an infant cannot benefit from the educational program to which such infant has been admitted, the facility shall forward to the commissioner its recommendations for termination of the infant's participation in such program and for any appropriate educational services for such infant.

    3. (iii) Eligibility of facilities. A facility shall be approved to provide educational services to such infants on an annual basis, following an inspection of such facility, provided that the plant, staff and program thereof meet the following standards:

       1. (a) The facility shall provide an educational program, for both infant and parent or legal guardian, which shall include language development, auditory stimulation, speech and speech reading. Language development may include any system of oral or manual communication or combination of both. Such program shall also provide orientation to parents regarding the implications of deafness, developmental needs of deaf infants, and the psychosocial problems encountered by parents or legal guardians of deaf infants.
       2. (b) An approved facility shall have a physical plant appropriately equipped to serve infants who are deaf, and shall be subject to a site visitation by the commissioner.
       3. (c) An approved facility shall adhere to all provisions of paragraph (b)(7) of this section.
       4. (d) An approved facility shall employ teachers of the deaf or teachers of the speech and hearing-handicapped who are certified or licensed pursuant to Part 80 of this Title.

       5. (e) A register of approved facilities will be maintained by the department.

          (e) Notice of closing, transfer of ownership or voluntary termination of approval by approved private schools.

          The owner or operator of an approved private residential or nonresidential school for students with disabilities that receives public funds pursuant to articles 81 and/or 89 of the Education Law, who intends to cease the operation of such school or chooses to transfer ownership, possession or operation of the premises and facilities of such school or to voluntarily terminate its status as an approved school, shall submit to the commissioner written notice of such intention not less than 90 days prior to the intended effective date of such action. Such notice shall set forth a detailed plan which makes provision for the safe and orderly transfer of each student with a disability who was publicly placed in such approved private school. The owner or operator of any such approved private school shall not cease to provide services to any student with a disability until the required notice and plan have been received, reviewed and approved by the commissioner, and a transfer of such student has been arranged in accordance with the approved plan.