Connecticut Seal

General Assembly

 

Raised Bill No. 5425

February Session, 2010

 

LCO No. 1918

 

*01918_______ED_*

Referred to Committee on Education

 

Introduced by:

 

(ED )

 

AN ACT CONCERNING SPECIAL EDUCATION.

Be it enacted by the Senate and House of Representatives in General Assembly convened:

Section 1. Section 10-76i of the general statutes is repealed and the following is substituted in lieu thereof (Effective from passage):

(a) There shall be an Advisory Council for Special Education which shall advise the General Assembly, State Board of Education and the Commissioner of Education, and which shall engage in such other activities as described in this section. [Said] On and after July 1, 2010, the advisory council shall consist of the following members: (1) [Two] Eight appointed by the Commissioner of Education, six of whom shall be (A) the parents of children with disabilities, provided such children are under the age of twenty-seven, or (B) individuals with disabilities, one of whom shall be an official of the Department of Education and one of whom shall be a [representative of an institution of higher education in the state that prepares teacher and related services personnel] state or local official responsible for carrying out activities under Subtitle B of title VII of the McKinney-Vento Homeless Assistance Act, 42 USC 11431 et seq., as amended from time to time; (2) [two] one appointed by the Commissioner of Developmental Services [, one of whom] who shall be an official of the department; [and one of whom shall be a person with disabilities or a parent of such a person; (3) two] (3) one appointed by the Commissioner of Children and Families [, one of whom] who shall be an official of the department; [and one of whom shall be a person with disabilities or a parent or foster parent of such a person;] (4) one appointed by the Commissioner of Correction who shall be an official of the department; (5) four who are members of the General Assembly who shall serve as nonvoting members of the advisory council, one appointed by the majority leader of the House of Representatives, one appointed by the minority leader of the House of Representatives, one appointed by the president pro tempore of the Senate and one appointed by the minority leader of the Senate; (6) [three] one appointed by the president pro tempore of the Senate [, one of whom shall be a member of the Connecticut Association of Boards of Education, one of whom shall be a member of the Connecticut Speech-Language-Hearing Association and one of whom shall be a person with disabilities or the parent of such a person] who shall be a representative of an institution of higher education in the state that prepares special education and related services personnel; (7) [two] one appointed by the majority leader of the Senate [one of whom shall be a person with disabilities or the parent of such a person and one of whom shall be a regular education teacher] who shall be a public school teacher; (8) [four] one appointed by the minority leader of the Senate [, one of whom] who shall be a representative of a vocational, community or business organization concerned with the provision of transitional services to children with disabilities; [, one of whom shall be a member of the Connecticut Association of Private Special Education Facilities and two of whom shall be persons with disabilities or the parents of such persons; (9) three] (9) one appointed by the speaker of the House of Representatives [, one of whom] who shall be a member of the Connecticut [Association of School Administrators and] Council of Special Education Administrators and who is a local education official; [, one of whom shall be a person with disabilities or the parent of such a person and one of whom shall be a member of the literacy coalition and a person with disabilities or the parent of such a person; (10) two] (10) one appointed by the majority leader of the House of Representatives [, one of whom] who shall be [a person working in the field of special-education-related services and one of whom shall be a person with disabilities or the parent of such a person] a representative of charter schools; (11) [four] one appointed by the minority leader of the House of Representatives [, two of whom shall be persons with disabilities or the parents of such persons, one of whom shall be a member of the Connecticut Association of Pupil Personnel Administrators and an administrator of a program for children who require special education, and one of whom shall be a special education teacher; (12) eight] who shall be a member of the Connecticut Association of Private Special Education Facilities; (12) one appointed by the Chief Court Administrator of the Judicial Department who shall be an official of such department responsible for the provision of services to adjudicated children and youth; (13) seven appointed by the Governor, all of whom shall be [persons with disabilities or parents of such persons and one of whom shall also be associated with a charter school] (A) the parents of children with disabilities, provided such children are under the age of twenty-seven, or (B) individuals with disabilities; and [(13)] (14) such other members as required by the Individuals with Disabilities Education Act, 20 USC 1400 et seq., as amended from time to time, appointed by the Commissioner of Education. Appointments made pursuant to the provisions of this section shall be representative of the ethnic and racial diversity of, and the types of disabilities found in, the state population. The terms of the [present] members of the council serving on the effective date of this section shall expire on June 30, [1998] 2010. Appointments shall be made to the council by July 1, [1998] 2010. Members shall serve two-year terms, except that members appointed pursuant to subdivisions (1) to [(4)] (3), inclusive, [and (12)] of this subsection whose terms commenced July 1, [1998] 2010, shall serve three-year terms and the successors to such members appointed pursuant to said subdivisions (1) to (3), inclusive, shall serve two-year terms.

(b) [Said] The advisory council shall elect annually its own chairperson and other officers as deemed necessary. The council shall meet at least once during each calendar quarter and at such other times as the chairperson deems necessary or upon the request of a majority of members in office. The State Board of Education shall meet at least annually with the council to review the state plan for the provision of special education. A majority of the members in office, but not less than ten, shall constitute a quorum. Any member who fails to attend fifty per cent of all meetings held during any calendar year shall be deemed to have resigned from office. The member appointed by the Commissioner of Education who is an official of the department shall meet with and act as secretary to the advisory council. Members of the advisory council shall serve without compensation, but shall be reimbursed for all reasonable expenses incurred in the performance of their duties. The Department of Education shall provide secretarial and administrative assistance to facilitate the activity of the advisory council. The Department of Higher Education shall appoint a liaison person to the advisory council.

(c) The advisory council shall: (1) Advise the Department of Education of unmet needs in educating children with disabilities and on the administration of the provisions of sections 10-94f to 10-94k, inclusive; (2) review periodically the laws, regulations, standards and guidelines pertaining to special education and recommend to the General Assembly and the State Board of Education any changes which it finds necessary; (3) comment on any new or revised regulations, standards and guidelines proposed for issuance; (4) participate with the State Board of Education in the development of any state eligibility documents for provision of special education; (5) comment publicly on any procedures necessary for distributing federal funds received pursuant to the Individuals with Disabilities Education Act, 20 USC 1400 et seq., as from time to time amended; (6) assist the Department of Education in developing and reporting such data and evaluations as may be conducted pursuant to the provisions of said act; (7) report to the General Assembly not later than January fifteenth in the odd-numbered years and not later than February fifteenth in the even-numbered years, concerning recommendations for effecting changes in the special education laws; and (8) perform any other activity that is required by the Individuals with Disabilities Education Act, 20 USC 1400, et seq., as from time to time amended.

Sec. 2. (NEW) (Effective July 1, 2010) (a) On and after July 1, 2012, local and regional boards of education shall provide applied behavior analysis services to those students with autism spectrum disorder whose individualized education plan or plan pursuant to Section 504 of the Rehabilitation Act of 1973 requires such services.  Such services shall be provided by a person who is (1) subject to the provisions of subsection (b) of this section, licensed by the Department of Public Health or certified by the Department of Education and such services are within the scope of practice of such license or certificate, or (2) certified by the Behavior Analyst Certification Board as a behavior analyst or assistant behavior analyst, provided such assistant behavior analyst is working under the supervision of a certified behavior analyst. For purposes of this section, "applied behavior analysis" means the design, implementation and evaluation of environmental modifications, using behavioral stimuli and consequences, including the use of direct observation, measurement and functional analysis of the relationship between the environment and behavior, to produce socially significant improvement in human behavior.  

(b) If the Commissioner of Education determines that there are insufficient certified personnel available to provide applied behavior analysis services in accordance with the provisions of subsection (a) of this section, the commissioner may authorize the provision of such services by persons who:  (1) Hold a bachelor's degree in a related field;  (2) have completed (A) a minimum of nine credit hours of coursework from a course sequence approved by the Behavior Analyst Certification Board, or (B) coursework that meets the eligibility requirement to sit for the board certified behavior analyst examination;  and (3) are supervised by a board certified behavior analyst.

(c) Nothing in this section shall be construed to require the provision of applied behavior analysis services in an individualized education plan or plan pursuant to Section 504 of the Rehabilitation Act of 1973.

Sec. 3. Subdivision (1) of subsection (d) of section 10-76h of the general statutes is repealed and the following is substituted in lieu thereof (Effective July 1, 2010):

(d) (1) In making a determination as to the issues in dispute, the hearing officer or board shall review the evidence presented in the hearing with the burden of proof on the party requesting the hearing. The hearing officer or board [shall have the authority (A) to] may (A) confirm, modify, or reject the identification, evaluation or educational placement of or the provision of a free appropriate public education to the child or pupil, (B) [to] determine the appropriateness of an educational placement where the parent or guardian of a child requiring special education or the pupil if such pupil is an emancipated minor or eighteen years of age or older, has placed the child or pupil in a program other than that prescribed by the planning and placement team, or (C) [to] prescribe alternate special educational programs for the child or pupil. If the parent or guardian of such a child who previously received special education and related services from the district enrolls the child, or the pupil who previously received special education and related services from the district enrolls in a private elementary or secondary school without the consent of or referral by the district, a hearing officer may, in accordance with the Individuals with Disabilities Education Act, 20 USC 1400 et seq., as amended from time to time, require the district to reimburse the parents or the pupil for the cost of that enrollment if the hearing officer finds that the district had not made a free appropriate public education available to the child or pupil in a timely manner prior to that enrollment. In the case where a parent or guardian, or pupil if such pupil is an emancipated minor or is eighteen years of age or older, or a surrogate parent appointed pursuant to section 10-94g, has refused consent for initial evaluation or reevaluation, the hearing officer or board may order an initial evaluation or reevaluation without the consent of such parent, guardian, pupil or surrogate parent except that if the parent, guardian, pupil or surrogate parent appeals such decision pursuant to subdivision (4) of this subsection, the child or pupil may not be evaluated or placed pending the disposition of the appeal. The hearing officer or board shall inform the parent or guardian, or the emancipated minor or pupil eighteen years of age or older, or the surrogate parent appointed pursuant to section 10-94g, or the Commissioner of Children and Families, as the case may be, and the board of education of the school district or the unified school district of the decision in writing and mail such decision not later than forty-five days after the commencement of the hearing pursuant to the Individuals with Disabilities Education Act, 20 USC 1400 et seq., as amended from time to time, except that a hearing officer or board may grant specific extensions of such forty-five-day period in order to comply with the provisions of subsection (b) of this section. The hearing officer may include in the decision a comment on the conduct of the proceedings. The findings of fact, conclusions of law and decision shall be written without personally identifiable information concerning such child or pupil, so that such decisions may be available for public inspections pursuant to sections 4-167 and 4-180a.

Sec. 4. Section 10-76d of the 2010 supplement to the general statutes is repealed and the following is substituted in lieu thereof (Effective July 1, 2010):

(a) (1) In accordance with the regulations and procedures established by the Commissioner of Education and approved by the State Board of Education, each local or regional board of education shall provide the professional services requisite to identification of children requiring special education, identify each such child within its jurisdiction, determine the eligibility of such children for special education pursuant to sections 10-76a to 10-76h, inclusive, prescribe appropriate educational programs for eligible children, maintain a record thereof and make such reports as the commissioner may require. No child may be required to obtain a prescription for a substance covered by the Controlled Substances Act, 21 USC 801 et seq., as amended from time to time, as a condition of attending school, receiving an evaluation under section 10-76ff or receiving services pursuant to sections 10-76a to 10-76h, inclusive, or the Individuals with Disabilities Education Act, 20 USC 1400 et seq., as amended from time to time.

(2) Any local or regional board of education, through the planning and placement team established in accordance with regulations adopted by the State Board of Education under this section, may determine a child's Medicaid enrollment status. In determining Medicaid enrollment status, the planning and placement team shall: (A) Inquire of the parents or guardians of each such child whether the child is enrolled in or may be eligible for Medicaid; and (B) if the child may be eligible for Medicaid, request that the parent or guardian of the child apply for Medicaid. For the purpose of determining Medicaid rates for Medicaid eligible special education and related services based on a representative cost sampling method, the board of education shall make available documentation of the provision and costs of Medicaid eligible special education and related services for any students receiving such services, regardless of an individual student's Medicaid enrollment status, to the Commissioner of Social Services or to the commissioner's authorized agent at such time and in such manner as prescribed. For the purpose of determining Medicaid rates for Medicaid eligible special education and related services based on an actual cost method, the local or regional board of education shall submit documentation of the costs and utilization of Medicaid eligible special education and related services for all students receiving such services to the Commissioner of Social Services or to the commissioner's authorized agent at such time and in such manner as prescribed. The commissioner or such agent may use information received from local or regional boards of education for the purposes of (i) ascertaining students' Medicaid eligibility status, (ii) submitting Medicaid claims, (iii) complying with state and federal audit requirements and (iv) determining Medicaid rates for Medicaid eligible special education and related services. No child shall be denied special education and related services in the event the parent or guardian refuses to apply for Medicaid.

(3) Beginning with the fiscal year ending June 30, 2004, the Commissioner of Social Services shall make grant payments to local or regional boards of education in amounts representing fifty per cent of the federal portion of Medicaid claims processed for Medicaid eligible special education and related services provided to Medicaid eligible students in the school district. Beginning with the fiscal year ending June 30, 2009, the commissioner shall exclude any enhanced federal medical assistance percentages in calculating the federal portion of such Medicaid claims processed. Such grant payments shall be made on at least a quarterly basis and may represent estimates of amounts due to local or regional boards of education. Any grant payments made on an estimated basis, including payments made by the Department of Education for the fiscal years prior to the fiscal year ending June 30, 2000, shall be subsequently reconciled to grant amounts due based upon filed and accepted Medicaid claims and Medicaid rates. If, upon review, it is determined that a grant payment or portion of a grant payment was made for ineligible or disallowed Medicaid claims, the local or regional board of education shall reimburse the Department of Social Services for any grant payment amount received based upon ineligible or disallowed Medicaid claims.

(4) Pursuant to federal law, the Commissioner of Social Services, as the state's Medicaid agent, shall determine rates for Medicaid eligible special education and related services pursuant to subdivision (2) of this subsection. The Commissioner of Social Services may request and the Commissioner of Education and towns and regional school districts shall provide information as may be necessary to set such rates.

(5) Based on school district special education and related services expenditures, the state's Medicaid agent shall report and certify to the federal Medicaid authority the state match required by federal law to obtain Medicaid reimbursement of eligible special education and related services costs.

(6) Payments received pursuant to this section shall be paid to the local or regional board of education which has incurred such costs in addition to the funds appropriated by the town to such board for the current fiscal year.

(7) The planning and placement team shall, in accordance with the provisions of the Individuals With Disabilities Education Act, 20 USC 1400, et seq., as amended from time to time, develop and update annually a statement of transition service needs for each child requiring special education.

(8) (A) Each local and regional board of education shall notify the parent or guardian of a child who requires or who may require special education, a pupil if such pupil is an emancipated minor or eighteen years of age or older who requires or who may require special education or a surrogate parent appointed pursuant to section 10-94g, in writing, at least five school days before such board proposes to, or refuses to, initiate or change the child's or pupil's identification, evaluation or educational placement or the provision of a free appropriate public education to the child or pupil. Such parent, guardian, pupil or surrogate parent shall be given at least five school days' prior notice of any planning and placement team meeting conducted for such child or pupil and shall have the right to be present at and participate in and to have advisors of such person's own choosing and at such person's own expense to be present at and to participate in all portions of such meeting at which an educational program for such child or pupil is developed, reviewed or revised. Immediately upon the formal identification of any child as a child requiring special education and at each planning and placement team meeting for such child, the responsible local or regional board of education shall inform the parent or guardian of such child or surrogate parent or, in the case of a pupil who is an emancipated minor or eighteen years of age or older, the pupil of the laws relating to special education and the rights of such parent, guardian, surrogate parent or pupil under such laws and the regulations adopted by the State Board of Education relating to special education. If such parent, guardian, surrogate parent or pupil does not attend a planning and placement team meeting, the responsible local or regional board of education shall mail such information to such person. Each board shall have in effect at the beginning of each school year an educational program for each child who has been identified as eligible for special education.

(B) At each initial planning and placement team meeting for a child, the responsible local or regional board of education shall inform the parent, guardian, surrogate parent or pupil of the laws relating to physical restraint and seclusion pursuant to chapter 814e and the rights of such parent, guardian, surrogate parent or pupil under such laws and the regulations adopted by the State Board of Education relating to physical restraint and seclusion.

(9) Notwithstanding any provision of the general statutes, for purposes of Medicaid reimbursement, when recommended by the planning and placement team and specified on the individualized education program, a service eligible for reimbursement under the Medicaid program shall be deemed to be authorized by a practitioner of the healing arts under 42 CFR 440.130, provided such service is recommended by an appropriately licensed or certified individual and is within the individual's scope of practice. Certain items of durable medical equipment, recommended pursuant to the provisions of this subdivision, may be subject to prior authorization requirements established by the Commissioner of Social Services. Diagnostic and evaluation services eligible for reimbursement under the Medicaid program and recommended by the planning and placement team shall also be deemed to be authorized by a practitioner of the healing arts under 42 CFR 440.130 provided such services are recommended by an appropriately licensed or certified individual and are within the individual's scope of practice.

(10) The Commissioner of Social Services shall implement the policies and procedures necessary for the purposes of this subsection while in the process of adopting such policies and procedures in regulation form, provided notice of intent to adopt the regulations is published in the Connecticut Law Journal within twenty days of implementing the policies and procedures. Such policies and procedures shall be valid until the time final regulations are effective.

(b) In accordance with the regulations of the State Board of Education, each local and regional board of education shall: (1) Provide special education for school-age children requiring special education who are described in subparagraph (A) of subdivision (5) of section 10-76a. The obligation of the school district under this subsection shall terminate when such child is graduated from high school or reaches age twenty-one, whichever occurs first; and (2) provide special education for children requiring special education who are described in subparagraph (A) or (C) of subdivision (5) of section 10-76a. The State Board of Education shall define the criteria by which each local or regional board of education shall determine whether a given child is eligible for special education pursuant to this subdivision, and such determination shall be made by the board of education when requested by a parent or guardian, or upon referral by a physician, clinic or social worker, provided the parent or guardian so permits. To meet its obligations under this subdivision, each local or regional board of education may, with the approval of the State Board of Education, make agreements with any private school, agency or institution to provide the necessary preschool special education program, provided such private facility has an existing program which adequately meets the special education needs, according to standards established by the State Board of Education, of the preschool children for whom such local or regional board of education is required to provide such an education and provided such district does not have such an existing program in its public schools. Such private school, agency or institution may be a facility which has not been approved by the Commissioner of Education for special education, provided such private facility is approved by the commissioner as an independent school or licensed by the Department of Public Health as a day care or nursery facility or be both approved and licensed.

(c) Each local or regional board of education may provide special education for children requiring it who are described by subparagraph (B) of subdivision (5) of section 10-76a and for other exceptional children for whom provision of special education is not required by law.

(d) To meet its obligations under sections 10-76a to 10-76g, inclusive, any local or regional board of education may make agreements with another such board or subject to the consent of the parent or guardian of any child affected thereby, make agreements with any private school or with any public or private agency or institution, including a group home to provide the necessary programs or services, but no expenditures made pursuant to a contract with a private school, agency or institution for such special education shall be paid under the provisions of section 10-76g, unless (1) such contract includes a description of the educational program and other treatment the child is to receive, a statement of minimal goals and objectives which it is anticipated such child will achieve and an estimated time schedule for returning the child to the community or transferring such child to another appropriate facility, (2) subject to the provisions of this subsection, the educational needs of the child for whom such special education is being provided cannot be met by public school arrangements in the opinion of the commissioner who, before granting approval of such contract for purposes of payment, shall consider such factors as the particular needs of the child, the appropriateness and efficacy of the program offered by such private school, agency or institution, and the economic feasibility of comparable alternatives, and (3) commencing with the 1987-1988 school year and for each school year thereafter, each such private school, agency or institution has been approved for special education by the Commissioner of Education or by the appropriate agency for facilities located out of state, except as provided in subsection (b) of this section. Notwithstanding the provisions of subdivision (2) of this subsection or any regulations adopted by the State Board of Education setting placement priorities, placements pursuant to this section and payments under section 10-76g may be made pursuant to such a contract if the public arrangements are more costly than the private school, institution or agency, provided the private school, institution or agency meets the educational needs of the child and its program is appropriate and efficacious. Notwithstanding the provisions of this subsection to the contrary, nothing in this subsection shall (A) require the removal of a child from a nonapproved facility if the child was placed there prior to July 7, 1987, pursuant to the determination of a planning and placement team that such a placement was appropriate and such placement was approved by the Commissioner of Education, or (B) prohibit the placement of a child at a nonapproved facility if a planning and placement team determines prior to July 7, 1987, that the child be placed in a nonapproved facility for the 1987-1988 school year. Each child placed in a nonapproved facility as described in subparagraphs (A) and (B) of subdivision (3) of this subsection may continue at the facility provided the planning and placement team or hearing officer appointed pursuant to section 10-76h determines that the placement is appropriate. Expenditures incurred by any local or regional board of education to maintain children in nonapproved facilities as described in said subparagraphs (A) and (B) shall be paid pursuant to the provisions of section 10-76g. Any local or regional board of education may enter into a contract with the owners or operators of any sheltered workshop or rehabilitation center for provision of an education occupational training program for children requiring special education who are at least sixteen years of age, provided such workshop or institution shall have been approved by the appropriate state agency. Whenever any child is identified by a local or regional board of education as a child requiring special education and said board of education determines that the requirements for special education could be met by a program provided within the district or by agreement with another board of education except for the child's need for services other than educational services such as medical, psychiatric or institutional care or services, said board may meet its obligation to furnish special education for such child by paying the reasonable cost of special education instruction in a private school, hospital or other institution provided said board or the commissioner concurs that placement in such institution is necessary and proper and no state institution is available to meet such child's needs.

(e) (1) Any local or regional board of education which provides special education pursuant to any mandates in this section shall provide transportation, to and from, but not beyond the curb of, the residence of the child, unless otherwise agreed upon by the board and the parent or guardian of the child, tuition, room and board and other items necessary to the provision of such special education except for children who are placed in a residential facility because they need services other than educational services, in which case the financial responsibility of the school district and payment to such district shall be limited to the reasonable costs of special education instruction as defined in the regulations of the State Board of Education. If a hearing board, pursuant to subsection (d) of section 10-76h, rejects the educational program prescribed by the local or regional board of education and determines that a placement by a parent or guardian was appropriate, the local or regional board of education shall reimburse the parent or guardian for the reasonable costs incurred for the provision of special education pursuant to this section from the initiation of review procedures as provided by said section 10-76h.

(2) For purposes of this subdivision, "public agency" includes the offices of a government of a federally recognized Native American tribe. Notwithstanding any other provisions of the general statutes, for the fiscal year ending June 30, 1987, and each fiscal year thereafter, whenever a public agency, other than a local or regional board of education, the State Board of Education or the Superior Court acting pursuant to section 10-76h, places a child in a foster home, group home, hospital, state institution, receiving home, custodial institution or any other residential or day treatment facility, and such child requires special education, the local or regional board of education under whose jurisdiction the child would otherwise be attending school or, if no such board can be identified, the local or regional board of education of the town where the child is placed, shall provide the requisite special education and related services to such child in accordance with the provisions of this section. Within one business day of such a placement by the Department of Children and Families or offices of a government of a federally recognized Native American tribe, said department or offices shall orally notify the local or regional board of education responsible for providing special education and related services to such child of such placement. The department or offices shall provide written notification to such board of such placement within two business days of the placement. Such local or regional board of education shall convene a planning and placement team meeting for such child within thirty days of the placement and shall invite a representative of the Department of Children and Families or offices of a government of a federally recognized Native American tribe to participate in such meeting. (A) The local or regional board of education under whose jurisdiction such child would otherwise be attending school shall be financially responsible for the reasonable costs of such special education and related services in an amount equal to the lesser of one hundred per cent of the costs of such education or the average per pupil educational costs of such board of education for the prior fiscal year, determined in accordance with the provisions of subsection (a) of section 10-76f. The State Board of Education shall pay on a current basis, except as provided in subdivision (3) of this subsection, any costs in excess of such local or regional board's basic contributions paid by such board of education in accordance with the provisions of this subdivision. (B) Whenever a child is placed pursuant to this subdivision, on or after July 1, 1995, by the Department of Children and Families and the local or regional board of education under whose jurisdiction such child would otherwise be attending school cannot be identified, the local or regional board of education under whose jurisdiction the child attended school or in whose district the child resided at the time of removal from the home by said department shall be responsible for the reasonable costs of special education and related services provided to such child, for one calendar year or until the child is committed to the state pursuant to section 46b-129 or 46b-140 or is returned to the child's parent or guardian, whichever is earlier. If the child remains in such placement beyond one calendar year the Department of Children and Families shall be responsible for such costs. During the period the local or regional board of education is responsible for the reasonable cost of special education and related services pursuant to this subparagraph, the board shall be responsible for such costs in an amount equal to the lesser of one hundred per cent of the costs of such education and related services or the average per pupil educational costs of such board of education for the prior fiscal year, determined in accordance with the provisions of subsection (a) of section 10-76f. The State Board of Education shall pay on a current basis, except as provided in subdivision (3) of this subsection, any costs in excess of such local or regional board's basic contributions paid by such board of education in accordance with the provisions of this subdivision. The costs for services other than educational shall be paid by the state agency which placed the child. The provisions of this subdivision shall not apply to the school districts established within the Department of Children and Families, pursuant to section 17a-37, the Department of Correction, pursuant to section 18-99a, or the Department of Developmental Services, pursuant to section 17a-240, provided in any case in which special education is being provided at a private residential institution, including the residential components of regional educational service centers, to a child for whom no local or regional board of education can be found responsible under subsection (b) of this section, Unified School District #2 shall provide the special education and related services and be financially responsible for the reasonable costs of such special education instruction for such children. Notwithstanding the provisions of this subdivision, for the fiscal years ending June 30, 2004, to June 30, 2007, inclusive, and for the fiscal years ending June 30, 2010, and June 30, 2011, the amount of the grants payable to local or regional boards of education in accordance with this subdivision shall be reduced proportionately if the total of such grants in such year exceeds the amount appropriated for the purposes of this subdivision for such year.

(3) Payment for children who require special education and who reside on state-owned or leased property or in permanent family residences as defined in section 17a-154, and who are not the educational responsibility of the unified school districts established pursuant to section 17a-37, section 17a-240 or section 18-99a, shall be made in the following manner: The State Board of Education shall pay to the school district which is responsible for providing instruction for each such child pursuant to the provisions of this subsection one hundred per cent of the reasonable costs of such instruction. In the fiscal year following such payment, the State Board of Education shall deduct from the special education grant due the local or regional board of education under whose jurisdiction the child would otherwise be attending school, where such board has been identified, the amount for which such board would otherwise have been financially responsible pursuant to the provisions of subdivision (2) of this subsection. No such deduction shall be made for any school district which is responsible for providing special education instruction for children whose parents or legal guardians do not reside within such district. The amount deducted shall be included as a net cost of special education by the Department of Education for purposes of the state's special education grant calculated pursuant to section 10-76g. A school district otherwise eligible for reimbursement under the provisions of this subdivision for the costs of education of a child residing in a permanent family residence shall continue to be so eligible in the event that a person providing foster care in such residence adopts the child. Notwithstanding the provisions of this subdivision, for the fiscal years ending June 30, 2004, and June 30, 2005, the amount of the grants payable to local or regional boards of education in accordance with this subdivision shall be reduced proportionately if the total of such grants in such year exceeds the amount appropriated for the purposes of this subdivision for such year.

(4) Notwithstanding any other provision of this section, the Department of Mental Health and Addiction Services shall provide regular education and special education and related services to eligible residents in facilities operated by the department who are eighteen to twenty-one years of age. In the case of a resident who requires special education, the department shall provide the requisite identification and evaluation of such resident in accordance with the provisions of this section. The department shall be financially responsible for the provision of educational services to eligible residents. The Departments of Mental Health and Addiction Services, Children and Families and Education shall develop and implement an interagency agreement which specifies the role of each agency in ensuring the provision of appropriate education services to eligible residents in accordance with this section. The State Board of Education shall pay to the Department of Mental Health and Addiction Services one hundred per cent of the reasonable costs of such educational services provided to eligible residents of such facilities. Payment shall be made by the board as follows: Eighty-five per cent of the estimated cost in July and the adjusted balance in May.

(5) Application for the grant to be paid by the state for costs in excess of the local or regional board of education's basic contribution shall be made by such board of education by filing with the State Board of Education, in such manner as prescribed by the Commissioner of Education, annually on or before December first a statement of the cost of providing special education, as defined in subdivision (2) of this subsection, for a child of the board placed by a state agency in accordance with the provisions of said subdivision or, where appropriate, a statement of the cost of providing educational services other than special educational services pursuant to the provisions of subsection (b) of section 10-253, provided a board of education may submit, not later than March first, claims for additional children or costs not included in the December filing. Payment by the state for such excess costs shall be made to the local or regional board of education as follows: Seventy-five per cent of the cost in February and the balance in May. The amount due each town pursuant to the provisions of this subsection and the amount due to each town as tuition from other towns pursuant to this section shall be paid to the treasurer of each town entitled to such aid, provided the treasurer shall treat such grant or tuition received, or a portion of such grant or tuition, which relates to special education expenditures incurred pursuant to subdivisions (2) and (3) of this subsection in excess of such board's budgeted estimate of such expenditures, as a reduction in expenditures by crediting such expenditure account, rather than town revenue. The state shall notify the local or regional board of education when payments are made to the treasurer of the town pursuant to this subdivision.

(f) No children placed out primarily for special education services shall be placed in a private school, agency or institution outside of the state, except when in the opinion of the Commissioner of Education it is determined that: (1) No public or approved private facility which can reasonably provide appropriate special education programs for such children is available in the state; (2) no public or approved private facility which can reasonably provide appropriate special education programs for such children is available in the state and the out-of-state placement is required for a period of time not to exceed two years, during which time the local or regional board of education responsible for providing such children with a special education shall develop an appropriate special education program or cause such program to be developed within the state; or (3) an out-of-state placement is more economically feasible than an existing special education program in the state or any such program that could be developed within the state within a reasonable period of time. No placement in an out-of-state private special education school, agency or facility shall be approved unless such school, agency or facility first agrees in writing to submit to the state Department of Education any such financial program and student progress reports as the commissioner may require for the purpose of making an annual determination as to the economic feasibility and program adequacy of the special education program provided. The provisions of this subsection shall not apply to children placed out primarily for services other than educational services as described in subsection (d) of this section.

(g) (1) Each local or regional board of education shall review annually and make a report as to the progress of each child for whom such board is obligated to provide a special education and who receives special education services in any private school, agency or institution and shall, upon request of the commissioner, submit such reports to the State Board of Education.

(2) Whenever a local or regional board of education determines that a child who has for three years received special education services in private facilities pursuant to subsection (d) of section 10-76d must receive such services from private facilities for an additional period of time, the State Board of Education, shall annually thereafter review the progress of such child prior to approving or disapproving for purposes of reimbursement, pursuant to subsection (d) of section 10-76d, any continuation of private placement, considering such factors as the educational and other needs of the child.

(h) For any school year commencing on and after July 1, 2010, if a child who has received special education and related services transfers from one school district to another school district after October first, the local or regional board of education under whose jurisdiction such child attended school or in whose district the child resided prior to such transfer and that provided special education pursuant to the provisions of sections 10-76a to 10-76g, inclusive, shall be financially responsible for the reasonable cost of special education and related services provided to such child until June thirtieth of the school year of such transfer. Such local or regional board of education shall be eligible for reimbursement of such special education costs pursuant to section 10-76g for such child. If a child transfers from one school district to another school district after October first, and such child was not receiving special education and related services prior to such transfer but the local or regional board of education of the school district to which such child has transferred determines that such child requires special education and related services, such school district shall be financially responsible for the reasonable cost of special education and related services provided to such child.

[(h)] (i) The provisions of this section and sections 10-76a, 10-76b, 10-76c, 10-76f and 10-76g shall not be construed to relieve any insurer or provider of health or welfare benefits from paying any otherwise valid claim.

This act shall take effect as follows and shall amend the following sections:

Section 1

from passage

10-76i

Sec. 2

July 1, 2010

New section

Sec. 3

July 1, 2010

10-76h(d)(1)

Sec. 4

July 1, 2010

10-76d

Statement of Purpose:

To reconstitute the State Advisory Council for Special Education by reducing the number of members to make it consistent with federal law; to require boards of education to provide applied behavior analysis services to certain special education students; to establish that the burden of proof lies with the party requesting a special education hearing; and to require the school district from which a child transfers to pay for such child's special education costs for the remainder of the school year.

[Proposed deletions are enclosed in brackets. Proposed additions are indicated by underline, except that when the entire text of a bill or resolution or a section of a bill or resolution is new, it is not underlined.]