The State Education Department
State Review Officer
Application of a CHILD WITH A DISABILITY, by her parent, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the Wappingers Central School District
William T. LaVelle, attorney for petitioner, William T. LaVelle, Esq., of counsel
Donoghue, Thomas, Auslander, & Drohan, attorneys for respondent, James P. Drohan, Esq. of counsel
Petitioner appeals from an impartial hearing officer's decision finding that respondent had offered petitioner's daughter a free appropriate public education (FAPE) during the summer of 2000 and the 2000-01 school year in its public school system, and denying petitioner's request to have her daughter placed in a private school. The appeal must be sustained in part.
Petitioner's daughter was 11 years old and attending sixth grade at respondent's Myers Corners Elementary School (Myers Corners) at the commencement of the impartial hearing in December 2000. The student had attended Myers Corners since she began kindergarten in respondent's district in the 1994-95 school year. The student received speech therapy in kindergarten. Her speech therapist referred the student to respondent's Committee on Special Education (CSE) in the fall of 1994. The CSE classified the student as speech impaired in February 1995, and recommended that she receive speech/language therapy and consultant teacher services for the remainder of the 1994-95 school year (Exhibit SD-5). In the spring of 1996, respondent began providing occupational therapy to her. The student was enrolled in a 12:1+1 special education class in an integrated setting (an inclusion program) for first, second, and third grades. While in the third grade, she had the assistance of a 1:1 aide (Exhibit SD-16).
When evaluated by a school psychologist during the 1997-98 school year, the student obtained a verbal IQ score of 98, a performance IQ score of 84, and a full scale IQ score of 91, indicating that her intellectual ability was in the average range. However, the psychologist reported that the student was mildly deficient in her ability to analyze and synthesize visual material. In addition, she showed mild weaknesses in her capacity to process information, in her use of spoken language, in her non-verbal symbol reasoning, and in her short-term memory. She also manifested significant weaknesses in mathematical reasoning, difficulty in writing composition, and a mild difficulty in reading skills (Exhibit SD-12). A comprehensive speech/language evaluation revealed that the student's language development and speech and language skills had significantly improved and were within the average range (Exhibit SD-13). However, the speech/language therapist observed that the student had difficulty using these skills on a daily basis in her integrated classroom setting.
As a result of the triennial evaluation and other testing during the third grade, the CSE recommended in June 1998 that the student be placed in a self-contained special education class (Exhibit P-6; Transcript pp. 75-76). Petitioner disagreed with that recommendation and requested independent speech/language and neurological evaluations, which respondent agreed to provide. Pending the results of these evaluations, the student remained in an inclusion program for the fourth grade.
An independent speech/language pathologist reported in the summer of 1998 that the student demonstrated unreliable and generally inadequate levels of verbal processing. He concluded that the student's disability was not primarily language based, but was the result of a number of weaknesses including a possible deficit in executive functioning, which might be associated with an attention deficit disorder (ADD) (Exhibit SD-17).
In November 1998, an independent psychologist reported that the student manifested significant weaknesses in her visual-perceptual skills. The evaluator suggested that significant deficits in the student's ability to perceive spatial relationships and to manipulate visual information might be responsible for her difficulty in learning mathematics and acquiring reading and writing skills. She indicated that the student lacked confidence in her ability to succeed in school because of her history of disappointment and failure (Exhibit SD-20).
Respondent's CSE reviewed the independent speech/language and psychological evaluations at its January 1999 meeting. It recommended that the student be placed in a self-contained special education class for the 1999-2000 school year (Exhibit P-1). The CSE met again in July 1999 to review its recommendation. Subsequent testing had revealed that the student had made significant progress in occupational and speech/language therapy (Exhibits SD-27, SD-28). Educational testing indicated that the student's reading and language skills were within the average range, but she continued to have significant deficits in mathematics (Exhibits SD-22, SD-23, SD-24). The CSE reclassified the student from speech impaired to learning disabled with a primary disability in mathematics, and recommended a reduction in her occupational therapy and speech/language services (Exhibit P-2; Transcript p. 77). Because of the student's continued attention difficulties, the CSE also recommended a psychiatric evaluation.
In September 1999, the evaluating psychiatrist reported that the student's continued attention difficulties might be secondary to underlying anxiety, or might represent co-existing attention deficit and anxiety disorders. He indicated that the student's symptoms might worsen with increased academic demands. He suggested medication might be helpful to reduce specific symptoms, and indicated that the student would benefit from a structured, small class setting (Exhibit SD-29).
The student entered a self-contained special education class in September 1999. While the new educational program provided her with academic benefits, the student reportedly had difficulty being separated from her friends. The CSE asked a social worker to assess the new placement's impact on the student's social and emotional health. The school social worker subsequently determined that the student was not fully invested in her academic program, that she was losing confidence in herself, and that her positive attitude toward school was slowly diminishing. In January 2000, the social worker concluded that the student's current program did not satisfy her social and emotional needs and was affecting her academic progress. She recommended that the student be placed in a different classroom setting (Exhibit SD-31). In February 2000, the CSE recommended placing the student in a fifth grade 12:1+1 inclusion program (Exhibit SD-36). Respondent approved the CSE's recommendation on March 13, 2000, and the student transferred into that program (Exhibits SD-36, SD-37; Transcript pp. 533-534).
With the change in program, the student's attitude and motivation improved considerably. However, the student's special education teacher reported in early June 2000 that the student had difficulty staying focused in a large group and that her weakness in mathematical operations made it very difficult for her to keep up with a modified fifth grade curriculum. The teacher also reported that, when reading independently, the student rarely comprehended third and fourth grade level material (Exhibit SD-50). However, the student made excellent progress in her speech/language therapy program in the 1999-2000 school year, and the speech/language therapist recommended her discharge from that program (Exhibits SD-49, SD-47, SD-46). She also showed continuing improvement in her occupational therapy program during that school year, and the student's occupational therapist recommended that her need for occupational therapy be reviewed in the first marking period in the fall of 2000 (Exhibits SD-34, SD-39, P-4, P-5).
At a CSE meeting on June 6, 2000, the student's special education inclusion teacher and the other educators at the meeting recommended that the student remain in fifth grade in order to master fundamental skills during the 2000-01 school year (Exhibits SD-42, SD-50; Transcript pp. 554-558, 597). Her teachers also recommended that her educational program be extended from a 10-month program to a 12-month program (Exhibit SD-41; Transcript pp. 79-81, 554, 564, 593). Petitioner objected to her daughter being retained in fifth grade. Instead, she asked the CSE to recommend that her child attend the Bishop Dunn School (Bishop Dunn), a private school, during the summer of 2000 and the following 2000-01 school year. The CSE deferred to petitioner's wish that the student not be retained, but recommended that she be placed in Myers Corners' 12:1+1 inclusion program for the sixth grade for the 2000-01 school year (Transcript pp. 565-566). For the summer of 2000, the CSE recommended that the student receive one hour per day of special education instruction in math, reading, and writing, three days per week at Myers Corners (Exhibit SD-42). This instruction would reportedly have been provided to her in a group of three students. The CSE also recommended discontinuing the student's speech/language therapy, and providing occupational therapy once per week as part of a small group. Program and testing modifications included use of a calculator, simplified and repeated directions, twice the amount of time for tests, and tests given in a special location.
By letters dated June 12 and June 26, 2000, petitioner asked for an impartial hearing, objecting to the CSE recommendation and seeking that her daughter instead be placed at Bishop Dunn for summer 2000 classes and the 2000-01 sixth grade school year (Exhibits SD-44, SD-45). Petitioner did not enroll her daughter in respondent's summer program, but did enroll her in respondent's recommended sixth grade class at Myers Corners for the 2000-01 school year. The hearing began on December 15, 2000, and continued on January 26, February 27, March 17, May 2, May 14, May 25, June 12, and June 28. It ultimately concluded on June 29, 2001. There was no dispute as to the appropriateness of the student's classification of learning disabled. The parties agreed that the issues to be determined at the hearing were whether the summer 2000 and school year 2000-01 programs discussed at the June 2000 CSE meeting were appropriate for the student (Transcript pp. 13-14, 18-19).
Petitioner asserted at the hearing that respondent had not issued an individualized education program (IEP) for the summer 2000 and 2000-01 school year programs prior to the commencement of those programs, and that she had not seen a copy of the IEP until it was provided to her lay advocate as part of respondent's compliance with the five-day pre-hearing disclosure rule (8 NYCRR 200.5[i][xi]) (Transcript pp. 356, 362-363, 410-412, 1159-1164). The CSE chairperson testified that the CSE did not write an IEP at the June 2000 meeting (Transcript pp. 202, 409-412). The copy of the IEP for the 2000-01 school year that is in the record bears a printing date of November 2, 2000 (Exhibit SD-43). The CSE chairperson also testified that printing of the IEP had been delayed by computer difficulties, but that he believed a handwritten IEP had been created (Transcript pp. 362, 412). Although he further testified that handwritten IEPs were created during the time the school was having computer difficulties, the record does not support the conclusion that one was created for this student. The respondent did not introduce into the record an original, or any copies of any handwritten IEPs pertaining to this student for the school periods in question (Transcript p. 363). The record does reveal that the district provided some special education services to the student beginning in September of 2000, but it did so without a written IEP in place.
The hearing officer rendered his decision on January 9, 2002. He found that the summer program the CSE recommended for the student at Myers Corners would have been educationally appropriate for her, rejecting petitioner's assertion that her daughter should have been placed in Bishop Dunn for the summer of 2000. He also found that respondent had provided an appropriate educational program to the student in the sixth grade inclusion class at Myers Corners for the 2000-01 school year. He rejected petitioner's argument regarding the timeliness of her daughter's IEP, while noting that it was unclear when petitioner had received a copy of the IEP.
Petitioner seeks a determination that respondent denied a FAPE to her daughter by failing to prepare a written IEP for the student's recommended program for the summer of 2000, and by not preparing her IEP for the 2000-01 school year in a timely manner. She also asks that I determine that her daughter should have been placed in a language-based integrated program during the summer of 2000 and the 2000-01 school year.
The purpose behind the Individuals with Disabilities Education Act (IDEA) is to ensure that children with disabilities have available to them a FAPE (20 U.S.C. § 1400[d][A]; see, Mrs. W. v. Tirozzi, 832 F.2d 748, 750 [2d Cir. 1987]). A FAPE consists of specialized education and related services embodied in an IEP (34 C.F.R. § 300.13). A board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (M.S. v. Bd. of Educ. of the City Sch. Dist. of the City of Yonkers, 231 F.3d 96, 102 [2d Cir. 2000]; Application of a Child Suspected of Having a Disability, Appeal No. 93-9; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Handicapped Child, 22 Educ. Dept. Rep. 487 ). To meet its burden of showing that it provided a FAPE to an individual child, a board of education must show (a) that it complied with the procedural requirements set forth in the IDEA, and (b) that the IEP developed through the IDEA's procedures is reasonably calculated to enable the child to receive educational benefits (Bd. of Educ. v. Rowley, 458 US 176, 206-207 ). The recommended program must also be provided in the least restrictive environment (34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a]). An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals and short term instructional objectives related to those needs, and provides for the use of appropriate special education services (Application of a Child with a Disability, Appeal No. 01-105; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).
Both the Supreme Court and Congress place great importance on the procedural provisions of the IDEA (Rowley, 458 US at 205 ["the importance Congress attached to these procedural safeguards cannot be gainsaid"]). Moreover, "adequate compliance with the procedures prescribed [by the IDEA] would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP" (Rowley, 458 US at 206; M.S. v. Bd. of Educ. of the City of Yonkers, 231 F.3d at 102). The initial procedural inquiry is no mere formality (Walzak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998]). These detailed procedural provisions "lie at the heart" of the statute (Evans v. Bd. of Educ. of the Rhinebeck Cent. Sch. Dist., 930 F. Supp. 83, 93 [S.D.N.Y. 1996]). They are not mere procedural hoops through which Congress intended state and local educational agencies to jump, rather the procedures are themselves a safeguard against arbitrary or erroneous decision making (Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036, 1041 [5th Cir. 1989]; Engwiller v. Pine Plains Cent.Sch.Dist., 110 F. Supp. 2d 236, 247 [S.D.N.Y. 2000]; Evans, 930 F. Supp. at 93). Procedural flaws do not automatically require a finding of a denial of FAPE, but procedural inadequacies that individually or cumulatively result in the loss of educational opportunity, or seriously infringe on a parent's participation in the creation or formulation of the IEP, clearly constitute a denial of FAPE (Shapiro v. Paradise Valley Unified Sch. Dist., 317 F.3d 1072, 1079 [9th Cir. 2003]; Knable v. Bexley City Sch. Dist., 238 F.3d 755, 766 [6th Cir. 2001], cert. denied 533 US 950 ; Heather S. v. State of Wisconsin, 125 F.3d 1045, 1059 [7th Cir. 1997]; W.G. v. Bd. of Trustees of Target Range Sch. Dist. No. 23, 960 F.2d 1479, 1484 [9th Cir. 1992]; Burke Co. Bd. of Educ. v. Denton, 895 F.2d 973, 982 [4th Cir. 1990]; W.A. v. Pascarella, 153 F.Supp. 2d 144, 153 [D.Conn. 2001]; see, Arlington Cent. Sch. Dist. v D.K., ___ F.Supp.2d ___, 2002 WL 31521158 [S.D.N.Y Nov. 14, 2002]; Evans, 930 F.Supp at 93; see also, J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69-70 [2d Cir. 2000] [relief is warranted only if the procedural violation affected the student's right to a FAPE]).
The IEP is the "modus operandi" of the IDEA (Burlington Sch. Comm. v. Dep't of Educ., 471 U.S. 359, 368 ). Under both state and federal law, an IEP is specifically defined as a "written statement" that addresses the educational needs of a child with a disability (20 U.S.C. § 1401(11); 34 C.F.R. § 300.340[a]; 8 NYCRR 200.1[y]). The IDEA and its corresponding regulations mandate that at the beginning of each school year, a school district must have an IEP in place for each child with a disability that resides within its jurisdiction (20 U.S.C. § 1414(d)(2)(A); 34 C.F.R. § 300.342[a]). The IEP must be in effect before special education and related services are provided (34 C.F.R. § 300.342[b][i]). The school district must provide a copy of the IEP to the parent, without the need for a request (34 C.F.R. § 300.345[f]; 64 Fed. Reg. 12587 [comment]; 8 NYCRR 200.4[e]). In addition, federal regulations require that the child's IEP must be accessible to each regular education teacher, special education teacher, and all other service providers who are responsible for its implementation (34 C.F.R. § 300.342[b]).1
In the instant case, the IEP entered into evidence for the summer 2000 and 2000-01 school year is dated November 2, 2000 (Exhibit SD-43). There is no evidence that the IEP existed during the summer of 2000, and petitioner did not receive a copy of the IEP until her advocate received it as part of the disclosure process prior to the December 15, 2000 hearing. As such, respondent has failed to prove that it had a written IEP in effect at the beginning of the school year, and failed to show such document was made available to the student's service providers or to the parent, as required under the procedural regulations of the IDEA (34 C.F.R. § 300.342[a]; 34 C.F.R. § 300.342[b]; 34 C.F.R. § 300.345[f]). The record also reveals that the IEP was not in place before some services were provided to the student, in contradiction to the regulations (34 C.F.R. § 300.342[b][i]). Therefore, I find respondent's actions violated petitioner's procedural rights.
This, however, does not end the inquiry. I must now determine if these procedural violations resulted in a denial of FAPE (see, J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69-70 [2d Cir. 2000]; Application of the Bd. of Educ., Appeal No. 01-047), i.e., whether the violations resulted in a loss of educational opportunity (see, e.g., Evans, 930 F.Supp. at 93; Application of a Child with a Disability, Appeal No. 01-061; Application of a Child with a Disability, Appeal No. 01-046) or educational benefit (see, e.g., Arlington Cent. Sch. Dist. v. D.K., ___ F.Supp. 2d ___, 2002 WL 31521158 [S.D.N.Y. Nov. 14, 2002.]) for the student, or seriously infringed on the parent's participation in the creation or formulation of the IEP (see, e.g., Pascarella, 153 F.Supp.2d at 153; Briere v. Fair Haven Grade Sch. Dist. 948 F.Supp. 1242 [D.Vt. 1996]; Application of a Child with a Disability, Appeal No. 96-31). I conclude that they did.
First, the complete failure to have a written IEP in existence for all of the summer term and the majority of the first half of the 2000-01 school year directly resulted in a loss of educational opportunity for the student. The Supreme Court has defined the IEP as the centerpiece of the IDEA's educational delivery system (Honig v Doe, 484 US 305, 311 ). "The IEP is the central mechanism by which public schools ensure that their disabled students receive a free appropriate public education" (Polera v. Bd. of Educ. of the Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 482 [2d Cir. 2002]). A complete lack of an IEP during a significant portion of a school year is not a mere technicality (Application of a Child with a Disability, Appeal No. 00-095; see, Arlington Cent. Sch. Dist. v. T. M., ___ F.Supp.2d ___, No. 02 Civ. 2252 [S.D.N.Y. July 29, 2002]; Application of the Bd. of Educ., Appeal No. 01-059). The IEP is not just a description of the services to be provided to a child; it also must include "measurable, intermediate steps (short-term objectives) or major milestones (benchmarks) that will enable parents, students, and educators to monitor progress during the year, and, if appropriate, to revise the IEP consistent with the student's instructional needs" (34 C.F.R. Part 300, Appendix A, Question 1 [emphasis added]). Hence, service providers must refer to the IEP continuously throughout the year in order to gauge its effectiveness in meeting short term goals and benchmarks and make appropriate revisions where necessary (see, id.). Where no IEP exists, monitoring of the child's progress or revision of the program is impeded, increasing the likelihood of improper implementation of the program envisioned by the CSE. Respondent's inability to provide the teachers access to a written IEP for the student for a significant portion of the school year limited their awareness of the student's CSE approved goals, short-term objectives, and benchmarks. This significantly hampered their ability to monitor or measure the student's progress in meeting her instructional goals, which deprived the student of a critical component of her educational program, and resulted in a loss of educational benefit.
Moreover, in the instant case, the record reveals several discrepancies between the educational program and services recommended by the CSE, the services the student actually received, and the program and services identified in the final November IEP document. The minutes of the June 2000 CSE meeting indicate that the recommended placement was a 12:1+1 inclusion program (Exhibit 42). At the hearing, the CSE chair explained that the recommended inclusion program envisioned the student having a special education teacher present all day in the classroom within a general population (Transcript pp. 374-378). In actuality, the program envisioned was not the program delivered. Testimony at the hearing revealed that the student did not have a special education teacher with her in at least two of her classes, science and social studies (Transcript p. 610). Further, the written IEP produced in November was inconsistent with what was recommended at the CSE meeting, and both the IEP and CSE recommendations were inconsistent with the educational program the student actually received. The IEP describes the student's program as a special class, five times a week, for 60 minutes in duration, in a general education-integrated setting (Exhibit 43). The IEP suggests that the special class program is limited to one hour per day, whereas the CSE recommendation contained no such limitation, and the student's special education teacher testified that the student was in the special class for longer than indicated in the IEP (Transcript p. 610). In addition, the CSE also recommended that the student receive occupational therapy once per week (Exhibit SD-42; Transcript p. 375); however, the resultant IEP indicates that the student would receive occupational therapy only once per month (Exhibit SD-43). The discrepancies in placement and services further exemplifies the resultant loss in educational opportunity the student suffered as a result of respondent's failure to have a written IEP in place prior to the start of the school year.
Although procedural violations that result in a loss of educational opportunity are alone enough to find a denial of FAPE (see, e.g., Evans, 930 F.Supp. at 93), in the present case I find that respondent's procedural violations also seriously infringed upon the parent's participation in the ongoing IEP process. The Supreme Court has found that Congress placed every bit as much emphasis upon compliance with parental participation procedures at every stage of the administrative process as it did upon the measurement of the resulting IEP against a substantive standard (Rowley, 458 US at 205-206 ). "Procedural violations that interfere with parental participation in the IEP formulation process undermine the very essence of the IDEA" (Amanda J. v. Clark Co. Sch. Dist., 267 F.3d 877, 892 [9th Cir. 2001]). Regardless of a parent's presence at IEP development meetings, the appropriateness of the child's proposed educational program cannot be ascertained by a parent until all of the information is set forth in an IEP (Application of a Child with a Disability, Appeal No. 00-095). Failure to provide a copy of the child's IEP to the parent for a significant portion of the school year is not a mere technical defect (id.). The appendix to the federal regulations of the IDEA directs that "[t]he parents of a child with a disability are expected to be equal participants along with school personnel, in developing, reviewing, and revising the IEP for their child" (see, 34 C.F.R. Part 300, Appendix A, Question 5 [emphasis added]). A copy of the child's written IEP is necessary for the parent to have informed input into the IEP's revision as well as the creation and formulation of any future IEPs.
Respondent's failure to provide a copy of the IEP to the parent as required under federal and state regulations limited the parent's ability to ascertain whether the IEP produced was consistent with the CSE's recommendations. It also hampered her ability to gauge the program's success and suggest IEP revisions. The harm is especially evident in this case where the IEP that was eventually given to the parent was not consistent with the CSE's recommendations, hence the parent was denied the opportunity to review and offer input on revising any errors in the IEP or program implementation. Moreover, with respect to the summer program, while the testimony is conflicting as to why the student did not attend the program, the failure of the parent to receive an IEP in a timely manner limited the parent's ability to examine, review or suggest revisions to the proposed summer 2000 program as well. Thus, I find that respondent's failure to provide the parent with a copy of the student's IEP until after completion of the summer program and at least three months into the 2000-01 school year program, and then only in prehearing disclosure, to be a procedural violation that seriously infringed upon the parent's participation in the creation or formulation of her daughter's IEP.
In the instant case I find that the nature and number of procedural violations committed by respondent go to the very heart of the IDEA and resulted in a loss of educational opportunity to petitioner's daughter as well as in a denial of parental participation in the creation and formulation of the IEP (Evans, 930 F.Supp. at 93; see, Arlington Cent. Sch. Dist. v. T.M., ___ F.Supp.2d ___, No. 02 Civ. 2252 [S.D.N.Y. July 29, 2002]; Briere, 948 F.Supp. 1242). Accordingly, I find that respondent has failed to meet its burden of proving that it provided an appropriate educational program for the student (see, Application of the Bd. of Educ., Appeal No. 01-059; Application of the Bd. of Educ., Appeal No. 01-014; Application of a Child with a Disability, Appeal No. 00-084; see, Application of a Child with a Disability, Appeal No. 99-81), and that petitioner's daughter was denied a FAPE (Arlington Cent. Sch. Dist. v. T.M., ___ F.Supp.2d ___, No. 02 Civ. 2252 [S.D.N.Y. July 29, 2002];.see, Arlington Cent. Sch. Dist. v. D.K., __ F. Supp. 2d ___, 2002 WL 31521158 [S.D.N.Y. Nov. 14, 2002]; Evans, 930 F.Supp. 83; see also, J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69-70 [2d Cir. 2000]).
I note that, although petitioner seeks a determination that her daughter should have been placed in a language-based integrated program for the sixth grade for the 2000-01 school year, there is insufficient evidence in the record to support such a determination.
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that the hearing officer's decision is hereby annulled to the extent that it found that respondent had demonstrated that it had offered to provide an appropriate program during the summer of 2000 and had provided an appropriate program to petitioner's daughter during the 2000-01 school year.
Albany, New York
March 24, 2003
PAUL F. KELLY
1Although not dispositive in this appeal, effective December 11, 2002, the New York State Education Law was amended to further provide that "The board of education or trustees of each school district and the board of trustees of each charter school shall adopt a policy to ensure that each regular education teacher, special education teacher, related service provider, and other service provider who is responsible for the implementation of a student's individualized education program shall be given a copy of such student's individualized education program prior to the implementation of such program" (Educ. Law § 4402[a], as amended by L 2002, ch 408 [emphasis added]).