Meeting of the Board of Regents | September 2003

THE STATE EDUCATION DEPARTMENT / THE UNIVERSITY OF THE STATE OF NEW YORK / ALBANY, NY 12234

TO:	The Honorable the Members of the Board of Regents
FROM:	Lawrence C. Gloeckler
COMMITTEE:	Vocational and Educational Services for Individuals with Disabilities
TITLE OF ITEM:	Parental Consent for Special Education Services
DATE OF SUBMISSION:	July 30, 2003
PROPOSED HANDLING:	Action
RATIONALE FOR ITEM:	Compliance with federal regulations
STRATEGIC GOAL:	4
AUTHORIZATION(S):

 

SUMMARY:

Attached is a proposed amendment of section 200.5 of the Regulations of the Commissioner of Education relating to parental consent for special education services. The proposed amendment was adopted by the Board of Regents as an emergency measure at the June 2003 meeting and is now being presented for adoption as a permanent rule. Supporting materials for the proposed amendment are available upon request from the Secretary to the Board of Regents.

The proposed amendment is necessary to conform the Commissioner's Regulations to the parental consent provisions of Part B of the Individuals with Disabilities Education Act (IDEA), as clarified in recent guidance received from the U.S. Department of Education, and thereby ensure compliance with federal requirements for the receipt of federal funds under the Act. The U.S. Department of Education has informed the State Education Department that Part B of the IDEA requires parental consent for the initial provision of special education and related services and does not permit public agencies to use the IDEA due process hearing procedures to override a parental refusal to consent to the initial provision of special education and related services. The proposed amendment will repeal provisions in section 200.5 that require a school district to initiate an impartial hearing when a parent does not provide consent for the initial provision of special education services.

A Notice of Proposed Rule Making was published in the State Register on June 11, 2003. An Assessment of Public Comment is attached. In addition to adopting the amendment as a permanent rule, a second emergency adoption is necessary to ensure that the rule remains continuously in effect until the effective date of the permanent rule. A Statement of the Facts and Circumstances Which Necessitate Emergency Action is attached.

 

RECOMMENDATION:

It is recommended that the Board of Regents take the following action:

VOTED:

That subdivision (b) of section 200.5 of the Regulations of the Commissioner of Education be amended, effective September 12, 2003, as an emergency action upon a finding by the Board of Regents that such action is necessary for the preservation of the general welfare to ensure that the amendment remains continuously in effect until the effective date of its adoption as a permanent rule, and thereby ensure compliance by the State and local educational agencies with the parental consent provisions of Part B of the Individuals with Disabilities Education Act (IDEA) and the requirements for receipt of federal funds under the Act.

VOTED:

That subdivision (b) of section 200.5 of the Regulations of the Commissioner of Education be amended as submitted, effective October 2, 2003.

 

Attachments

PROPOSED AMENDMENT OF SECTION 200.5 OF THE REGULATIONS OF THE COMMISSIONER OF EDUCATION PURSUANT TO SECTIONS 101, 207, 305, 3713, 4402, 4403 AND 4404 OF THE EDUCATION LAW, RELATING TO PARENTAL CONSENT FOR SPECIAL EDUCATION SERVICES.

ASSESSMENT OF PUBLIC COMMENT

Since publication of a Notice of Proposed Rule Making in the State Register on June 11, 2003, the State Education Department received the following comments.

COMMENT:

One comment was received which supported the proposed amendments, stating that parents should not be forced through an impartial hearing to have special education services provided to their children and that their first contacts with the educational system need to be positive.

DEPARTMENT RESPONSE:

The comment was supportive and therefore no changes to the proposed amendments are recommended.

COMMENT:

There has been confusion as to whether a parent can pick and choose those services which the parent wishes to have provided, and also whether the parent can subsequently elect to give written consent to have those services provided to which consent initially was not given. Section 300.505 of the federal Regulations to the Individuals with Disabilities Education Act (IDEA) states that a school district may not use a parent's refusal to consent to one service or activity to deny the parent or child any other service, benefit, or activity. To preclude any confusion or uncertainty, the proposed amendment should be revised to make clear whether the parent can also give written consent to the initial provision of some of the recommended special education services while withholding consent from others.

DEPARTMENT RESPONSE:

No revisions to the proposed regulation have been made since the requested clarification goes beyond the scope of the proposed regulatory amendment, as required by the U.S. Department of Education, relating to the initiation of an impartial hearing. However, the Department will further review the issues presented in the comment to determine whether they need to be addressed in regulation or guidance.

PROPOSED AMENDMENT OF SECTION 200.5 OF THE REGULATIONS OF THE COMMISSIONER OF EDUCATION PURSUANT TO SECTIONS 101, 207, 305, 3713, 4402, 4403 AND 4404 OF THE EDUCATION LAW, RELATING TO PARENTAL CONSENT FOR SPECIAL EDUCATION SERVICES.

STATEMENT OF FACTS AND CIRCUMSTANCES WHICH NECESSITATE EMERGENCY ACTION

The proposed amendment is necessary to conform the Commissioner's Regulations to the parental consent provisions of section 614(a) of Part B of the Individuals with Disabilities Education Act (IDEA) and 34 CFR 300.505, as clarified in recent guidance received from the U.S. Department of Education. The U.S. Department of Education has informed the State Education Department that Part B of the IDEA requires parental consent for the initial provision of special education and related services and does not permit public agencies to use the IDEA due process hearing procedures to override a parental refusal to consent to the initial provision of special education and related services.

Consistent with federal requirements, the proposed amendment repeals provisions in section 200.5(b)(1)(ii) and (iii) that require, in the event that a parent does not grant consent for an initial provision of special education services within 30 days of a notice of recommendation, a board of education to initiate an impartial hearing to determine if the provision of special education services is warranted without parental consent.

The proposed amendment was adopted as an emergency measure, effective June 20, 2003, at the June 16 -17, 2003 meeting of the Board of Regents, and will expire on September 17, 2003, 90 days after its filing with the Department of State. The proposed amendment is to be adopted as a permanent rule at the September 10 -12, 2003 Regents meeting, which is the first meeting scheduled after expiration of the 45-day public comment period provided for in State Administrative Procedure Act section 202(1)(a). However, pursuant to SAPA section 202(5), the permanent adoption cannot become effective until after its publication in the State Register on October 1, 2003. A lapse in the rule's effective date may result in a disruption of the State�s receipt of federal funds under Individuals with Disabilities Education Act (IDEA). A second emergency adoption is therefore necessary to ensure that the rule remains continuously in effect until the effective date of its adoption as a permanent rule.

Emergency action to adopt the proposed amendment is necessary for the preservation of the general welfare to ensure that the amendment remains continuously in effect until the effective date of its adoption as a permanent rule, and thereby ensure compliance with the parental consent provisions of Part B of the Individuals with Disabilities Education Act (IDEA) and the requirements for receipt of federal funds under the Act.

  

AMENDMENT TO THE REGULATIONS OF THE COMMISSIONER OF EDUCATION

Pursuant to sections 101, 207, 305, 3713, 4402, 4403 and 4404 of the Education Law.

Subdivision (b) of section 200.5 of the Regulations of the Commissioner of the Commissioner is amended, effective September 12, 2003, as follows:

(b) Consent. (1) Written consent of the parent, defined in section 200.1(l) of this Part, is required:

(i) . . .

(ii) prior to the initial provision of special education to a student who has not previously been identified as having a disability[:]. [(a) consent] Consent for initial evaluation may not be construed as consent for initial provision of special education services; [and

(b) Except in the case of a preschool child, in the event that a parent does not grant consent for an initial provision of special education services within 30 days of a notice of recommendation, the board of education shall initiate an impartial hearing to determine if such provision of special education services is warranted without parental consent;]

(iii) prior to initial provision of special education services in a 12-month special service and/or program[:] .

[(a) except in the case of a preschool child, in the event that a parent does not grant consent for an initial provision of special education services in a 12-month program within 30 days of a notice of recommendation, the board of education shall initiate an impartial hearing to determine if such provision of services is warranted without parental consent.]

(iv) . . .

(v) . . .

(2) . . .

 

AMENDMENT TO THE REGULATIONS OF THE COMMISSIONER OF EDUCATION

Pursuant to sections 101, 207, 305, 3713, 4402, 4403 and 4404 of the Education Law.

Subdivision (b) of section 200.5 of the Regulations of the Commissioner of the Commissioner is amended, effective October 2, 2003, as follows:

(b) Consent. (1) Written consent of the parent, defined in section 200.1(l) of this Part, is required:

(i) . . .

(ii) prior to the initial provision of special education to a student who has not previously been identified as having a disability[:]. [(a) consent] Consent for initial evaluation may not be construed as consent for initial provision of special education services; [and

(b) Except in the case of a preschool child, in the event that a parent does not grant consent for an initial provision of special education services within 30 days of a notice of recommendation, the board of education shall initiate an impartial hearing to determine if such provision of special education services is warranted without parental consent;]

(iii) prior to initial provision of special education services in a 12-month special service and/or program[:] .

[(a) except in the case of a preschool child, in the event that a parent does not grant consent for an initial provision of special education services in a 12-month program within 30 days of a notice of recommendation, the board of education shall initiate an impartial hearing to determine if such provision of services is warranted without parental consent.]

(iv) . . .

(v) . . .

(2) . . .