Meeting of the Board of Regents | June 2007

Friday, June 1, 2007 - 8:30am

sed seal

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 EMSC-VESID Committee
FROM:	Rebecca H. Cort
SUBJECT:	Proposed Amendment to the Regulations of the Commissioner of Education Relating to the 2004 Reauthorization of the Individuals with Disabilities Education Act
DATE:	June 13, 2007
STRATEGIC GOAL:	Goals 1 and 2
AUTHORIZATION(S):

Summary

Issue for Action

Emergency adoption of the proposed sections 100.2, 120.6, 200.1 through 200.9, 200.13, 200.14, 200.16, 200.22, and 201.1 through 201.11 of the Regulations of the Commissioner of Education.

Reason for Consideration

To conform State regulations to the Individuals with Disabilities Education Act (IDEA 2004), as amended by Public Law 108-446, and Part 300 of Title 34 of the Code of Federal Regulations.

Proposed Handling

The proposed amendment is before the Committee for adoption as an emergency action.

Procedural History

The EMSC-VESID Committee discussed the proposed amendment at the March 2007 Regents meeting. A Notice of Proposed Rule Making was published in the State Register on March 21, 2007. Public hearings were conducted on April 16, 19 and 23 2007.

Background Information

The purpose of the proposed amendment is to conform State regulations to the IDEA and the final federal regulations to implement IDEA 2004. The final federal regulations were issued in August 2006 and became effective October 13, 2006. The State must amend its laws and regulations to conform to federal regulations by June 30, 2007 as a condition of receipt of federal funds. Emergency adoption is necessary since failure to conform the State’s rules to federal and State requirements could expose both the State and school districts to liability and could deny students with disabilities, parents and school districts with the benefits that they are intended to receive from IDEA.

Highlights of Major Issues Raised in Public Comment

Since publication of a Notice of Proposed Rule Making in the State Register on March 21, 2007, the State Education Department received many comments on the proposed amendments which are described in the attached Assessment of Public Comment. Highlighted below are those areas in which we received the majority of substantial comment.

Topic	Public Comment
Response to Intervention (RTI)	Generally, comments reflected a need for more specificity in defining the minimum components of a response to intervention program.
Determination of Learning Disabilities (LD)	Generally, comments reflected a recommendation for simplification of the procedures to determine if a student has a LD; that the State not allow use of “other research- based procedures” since it was not clear what those procedures might be; and that districts have additional time to establish RTI programs prior to prohibiting the use of significant discrepancy criteria for the determination of whether an elementary student has a LD.
Continuum of Special Education Services	The proposed changes to minimum levels of service for the combined use of consultant teacher and resource room services was widely supported, but it was recommended that the regulations allow indirect consultant teacher services to be considered in those combined services. The proposed addition of the integrated co-teaching service was supported by most, but opposed by some school district representatives because it might inhibit a school’s flexibility in service delivery. Many objected to the proposed one-third ratio of students with disabilities to nondisabled students receiving services in an integrated co-teaching class.
Required Forms for IEPs, Meeting Notice and Prior Written Notice	Most supported the proposed required use of State forms, but requested that the forms be developed in consideration of public comment on the forms themselves.
Resolution Sessions	Many requested regulations require the district to take specific steps to ensure parents participate in a resolution session and understand the consequences if they do not.
Due Process and Settlement Agreements	Many submitted comment in opposition to the regulation that would clarify that an impartial hearing officer may not issue a decision incorporating the terms of a settlement agreement between the parties.

Summary of Revisions to Proposed Regulations

In developing these proposed regulations, the Department carefully considered public comment and the State’s obligation under 34 CFR section 300.199 to minimize the number of rules, regulations and policies to which local educational agencies are subject to under IDEA and its implementing regulations and to ensure that State regulations support and facilitate school-level system improvement designed to enable students with disabilities to meet challenging State student academic achievement standards. Based upon public comment, it was necessary to revise the proposed amendment to make the following substantive changes.

Section 100.2 was revised to:
- provide further specificity to the minimum requirements for response to intervention (RTI) programs;
- define research-based instruction in reading;
- require the district to identify the RTI criteria and process for levels of intervention and progress monitoring; and
- require schools to ensure staff have knowledge and skills to implement RTI with consistency and fidelity.

Section 200.1 was revised to clarify that the definition of school health services includes school nurse services.

Section 200.4 was revised to:
- require documentation of attempts, including telephone calls and correspondence, to obtain parent consent for an evaluation;
- retain the requirement that if an assessment used for an evaluation is not conducted under standard conditions, the evaluation report must describe the extent to which it varied; and
- extend the date for requiring the State’s IEP form to January 1, 2009.
- Revisions were also made to sections 200.4(a), 200.4(b) and 200.4(j) relating to LD, including deleting the proposed use of alternative research-based criteria; and extending the date for prohibition of the discrepancy criteria for grades K to four LD determinations in the area of reading to July 1, 2012.

Section 200.5 was revised to:
- extend the date by when school districts must use the State's forms for meeting and prior written notices to parents to January 1, 2009;
- clarify when consent is required for use of public or private insurance;
- clarify that, in an expedited hearing relating to discipline, the parties may not challenge the sufficiency of the due process complaint notice request;
- add steps the district must take to ensure parents participate in the resolution meeting;
- clarify that when the parties reach a settlement, the terms of the agreement may be read into the record as an agreement between the parties only and the agreement would be enforceable in State or federal court; and
- clarify that not more than one extension to the impartial hearing timeline may be granted at a time.

Section 200.6 was revised to:
- allow the combined services of direct and/or indirect consultant teacher services and resource room services for not less than three hours per week; and
- specify that when a district includes integrated co-teaching services in their continuum of services, the number of students with disabilities cannot, effective July 1, 2008, exceed 12 students. The proposed limitation of the one-third ratio of students with disabilities to nondisabled students in integrated co-teaching classes was deleted.

Section 200.16 was revised to no longer limit to New York City only the proposed use of a procedure to temporarily increase the enrollment of a preschool class to 13 preschool students.

Attached is a copy of the revised proposed terms, assessment of public comment and a statement of the facts and circumstances which necessitate emergency action. Supporting materials for the proposed amendment are available upon request from the Secretary to the Board of Regents.

Timetable for Implementation

The effective date of the emergency adoption is proposed as July 1, 2007. A Notice of Revised Rule Making will be published in the State Register not later than July 18, 2007. Public comment on the revised rule will be provided for 30 days of the date it is published in the State Register. It is anticipated that the proposed amendment will be presented for permanent adoption at the September 10-11, 2007 Regents meeting.

Recommendations

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

VOTED: That a new subdivision (ii) be added to section 100.2 of the Regulations of the Commissioner of Education; that subdivision (a) of section 120.6 be amended; that subdivisions (m),(p),(s), (ii),(nn), (qq), (ss), (zz), (bbb), (eee), (fff), of section 200.1 of the Regulations of the Commissioner of Education be amended and a new subdivision (nnn) be added to section 200.1; that section 200.2 be amended; that subparagraph (v) of paragraph (2) of subdivision (c) and subdivision (d) of section 200.3 be amended; that section 200.4 be amended; that section 200.5 be amended; that section 200.6 be amended; that paragraph (3) of subdivision (b) of section 200.7 be amended; that paragraph (2) of subdivision (c) of section 200.8 be amended; that clause (c) of subparagraph (ix) of paragraph (2) of subdivision (f) of section 200.9 be amended; that subdivisions (a) and (b) of section 200.13 be amended; that subdivision (f) of section 200.14 be amended; that subparagraph (iv) of paragraph (1) of subdivision (b), paragraph (3) of subdivision (d), subparagraph (i) of paragraph (2), paragraphs (3) and (9) of subdivision (h) and subdivision (i) of section 200.16 be amended; that paragraph (3) of subdivision (b) of section 200.22 be amended; that subdivisions (e), (i), (k) and (n) of section 201.2 be amended; that section 201.3 be repealed and a new section 201.3 be added; that subdivisions (d) and (e) of section 201.4 be amended; that subdivision (a) and paragraph (3) of subdivision (b) of section 201.5 be amended; that subdivision (b) of section 201.6 be amended; that subparagraph (i) of paragraph (1) of subdivision (e) and subdivision (f) of section 201.7 be amended; that section 201.8 be amended; that paragraph (2) of subdivision (c) of section 201.9 be amended; that subdivision (e) of section 201.10 be repealed and subdivisions (a), (c) and (d) of section 201.10 be amended; and that section 201.11 of the Regulations of the Commissioner of Education be amended, as submitted, effective July 1, 2007, as an emergency action upon a finding by the Board of Regents that such action is necessary for the preservation of the general welfare in order to immediately conform the Commissioner's Regulations regarding the provision of special education services to the requirements of the Individuals with Disabilities Education Act (IDEA 2004), as amended by Public Law 108-446, and Part 300 of Title 34 of the Code of Federal Regulations, so that such requirements may be timely implemented during the 2007-08 school year, and thereby ensure the rights of students with disabilities and their parents consistent with Federal and State statutes and ensure compliance with requirements for receipt of Federal funds.

Attachment

PROPOSED AMENDMENT OF SECTIONS 100.2, 120.6, 200.1 THROUGH 200.9, 200.13, 200.14, 200.16, 200.22, AND 201.2 THROUGH 201.11 OF THE REGULATIONS OF THE COMMISSIONER OF EDUCATION PURSUANT TO SECTIONS 207, 3208, 3209, 3214, 3602-c, 3713, 4002, 4308, 4355, 4401, 4402, 4403, 4404, 4404-a, AND 4410 OF THE EDUCATION LAW, RELATING TO THE PROVISION OF SPECIAL EDUCATION PROGRAMS AND SERVICES TO STUDENTS WITH DISABILITIES

STATEMENT OF FACTS AND CIRCUMSTANCES WHICH NECESSITATE

EMERGENCY ACTION

The purpose of the proposed amendment is to conform the Regulations of the Commissioner of Education to the final federal regulations to implement the Individuals with Disabilities Education Act (IDEA) 2004 as amended by Public Law 108-446. The final Federal regulations were issued August 2006 and became effective October 13, 2006. The State must amend its laws and regulations to conform to Federal regulations by June 30, 2007 as a condition of receipt of Federal funds. The State and school districts must implement the new requirements in IDEA and the final regulations to implement the IDEA.

A Notice of Proposed Rule Making was published in the State Register on March 21, 2007. Since its publication, the proposed amendment has been revised in response to public comment and, pursuant to the State Administrative Procedure Act section 202(4-a), cannot be adopted by regular (non-emergency) action until at least 30 days after publication of the revised rule in the State Register. Accordingly, the proposed amendment cannot be adopted by regular action until the September Regents meeting. However, failure to conform the Commissioner's regulations to Federal and State requirements could expose both the State and school districts to liability and affect their eligibility for Federal funding under IDEA, and could deny students with disabilities, parents and school districts the benefits they are intended to receive under IDEA.

Emergency action to adopt the proposed rule is necessary for the preservation of the general welfare in order to immediately conform the Commissioner's Regulations regarding the provision of special education services to the requirements of the Federal Individuals with Disabilities Education Act (IDEA), as amended by Public Law 108-446, and Part 300 of Title 34 of the Code of Federal Regulations, so that such requirements become effective by the federally required date of July 1, 2007 and to ensure they are in effect by the beginning of the 2007-08 school year, and thereby ensure the rights of students with disabilities and their parents consistent with Federal and State statutes and ensure compliance with requirements for receipt of Federal funds.

AMENDMENT OF THE REGULATIONS OF THE COMMISSIONER OF EDUCATION

Pursuant to Education Law sections 207, 3208, 3209, 3214, 3602-c, 3713, 4002, 4308, 4355, 4401, 4402, 4403, 4404, 4404-a and 4410

(i) appropriate instruction delivered to all students in the general education class by qualified personnel;

(a) appropriate instruction in reading shall mean scientific research- based reading programs that include explicit and systematic instruction in phonemic awareness, phonics, vocabulary development, reading fluency (including oral reading skills) and reading comprehension strategies;

(ii) screenings applied to all students in the class to identify those students who are not making academic progress at expected rates;

(iii) instruction matched to student need with increasingly intensive levels of targeted intervention and instruction for students who do not make satisfactory progress in their levels of performance and/or in their rate of learning to meet age or grade level standards;

(iv) repeated assessments of student achievement which should include curriculum based measures to determine if interventions are resulting in student progress toward age or grade level standards;

(v) the application of information about the student’s response to intervention to make educational decisions about changes in goals, instruction and/or services and the decision to make a referral for special education programs and/or services; and

(vi) written notification to the parents when the student requires an intervention beyond that provided to all students in the general education classroom that provides information about:

(a) the amount and nature of student performance data that will be collected and the general education services that will be provided pursuant to paragraph (2) of this subdivision;

(b) strategies for increasing the student’s rate of learning; and

(2) A school district shall select and define the specific structure and components of the response to intervention program, including, but not limited to, the criteria for determining the levels of intervention to be provided to students, the types of interventions, the amount and nature of student performance data to be collected and the manner and frequency for progress monitoring.

(3) A school district shall take appropriate steps to ensure that staff have the knowledge and skills necessary to implement a response to intervention program and that such program is implemented consistent with paragraph (2) of this subdivision.

2. Subdivision (a) of section 120.6 of the Regulations of the Commissioner of Education is amended, effective July 1, 2007, as follows:

(a) For the purpose of compliance with the NCLB, a local educational agency shall ensure that its teachers of core academic subjects are highly qualified in accordance with the requirements and definitions prescribed in 34 CFR 200.55, [and] 200.56 (Code of Federal Regulations, revised as of July 1, 2003, title 34, volume 1, Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402-0001, 2003; available at the NYS Education Department, Office of Higher Education, 2M West Wing, Education Building, 89 Washington Avenue, Albany, NY 12234.) For the purpose of compliance with the Individuals with Disabilities Education Act (IDEA) and the NCLB, a local educational agency shall ensure that special education teachers who teach core academic subjects are highly qualified in accordance with 34 CFR 300.18 (Code of Federal Regulations, 2006 edition, title 34, section 300.18, Federal Register/ Vol. 71, No. 156/ August 14, 2006/ pp. 46758-46759 – Office of the Federal Register, National Archives and Records Administration, 800 North Capitol Street, NW, Suite 700, Washington, DC 20001; available at the Office of Vocational and Educational Services for Individuals with Disabilities, Room 1624, One Commerce Plaza, Albany, NY 12234). A local educational agency shall provide a teacher of core academic subjects who is not new to the profession the opportunity to meet the NCLB and IDEA [requirement] requirements to be highly qualified, in part, through passing the high objective uniform State standard of evaluation (HOUSSE). The HOUSSE shall be an evaluation, prescribed by the department and conducted locally either during a pre-employment review or at the time of an annual professional performance review prescribed in section 100.2(o) of this Title, that enables a teacher who is beyond the first year of the effective date of the teacher’s first teaching certificate, or in accordance with the provisions of 34 CFR 300.18, to demonstrate subject matter competency in all core academic subjects that the teacher teaches. The evaluation shall be based upon objective, coherent information as prescribed by the department, and shall include, but not be limited to, information on the teacher’s education, credentials, professional experience, and professional development.

3. Subdivisions (m),(p),(s), (ii),(nn), (qq), (ss), (zz), (bbb), (eee), (fff), of section 200.1 of the Regulations of the Commissioner of Education are amended, and a new subdivision (nnn) of section 200.1 of the Regulations of the Commissioner of Education is added, effective July 1, 2007, as follows:

(m) Consultant teacher services means direct and/or indirect services, as defined in this subdivision, provided to a student with a disability [who attends] in the student’s regular education classes and/or to such student's regular education teachers.

(1) . . .

(2) . . .

(p) Full-day preschool program means an approved special education program for preschool students with disabilities that provides instruction for a full-day session as defined in subdivision (q) of this section, provided however that in the event a program is approved by the commissioner to provide instruction for less than a full-day session but more than a half-day session, such program shall be deemed a full-day program solely for purposes of development of a recommendation by the preschool committee on special education pursuant to subparagraph (i) of paragraph b of subdivision 5 of section 4410 of the Education Law and section [200.16 (d)(3)] 200.16(e)(3) of this Part.

(s) Guardian ad litem means a person familiar with the provisions of this Part who is appointed from the list of surrogate parents or who is a pro bono attorney appointed to represent the interests of a student in an impartial hearing pursuant to section [200.5(j)(3)(vii)] 200.5(j)(3)(ix) of this Part and, where appropriate, to join in an appeal to the State Review Officer initiated by the parent or board of education pursuant to section 200.5(k) of this Part. A guardian ad litem shall have the right to fully participate in the impartial hearing to the extent indicated in section [200.5(j)(3)(ix)] 200.5(j)(3)(xii) of this Part.

(ii) (1) Parent means a birth or adoptive parent, a legally appointed guardian generally authorized to act as the child’s parent or authorized to make educational decisions for the child[,]; a person in parental relationship to the child as defined in Education Law, section 3212[,]; an individual designated as a person in parental relation pursuant to title 15-A of the General Obligations Law including an individual so designated who is acting in the place of a birth or adoptive parent (including a grandparent, stepparent, or other relative with whom the child resides)[,]; or a surrogate parent who has been appointed in accordance with section 200.5(n) of this Part. The term does not include the State if the student is a ward of the State.

(2) . . .

(3) . . .

(4) . . .

(nn) Preschool program means a special education program approved pursuant to section 4410 of the Education Law to provide special education programs and services, from the continuum of services set forth in section [200.16(h)] 200.16(i) of this Part, and to conduct evaluations of preschool students with disabilities if such program has a multidisciplinary evaluation component.

(qq) Related services means developmental, corrective, and other supportive services as are required to assist a student with a disability and includes speech-language pathology, audiology services, interpreting services, psychological services, physical therapy, occupational therapy, counseling services, including rehabilitation counseling services, orientation and mobility services, medical services as defined in this section, parent counseling and training, school health services, school social work, assistive technology services, appropriate access to recreation, including therapeutic recreation, other appropriate developmental or corrective support services, and other appropriate support services and includes the early identification and assessment of disabling conditions in students. [The term does not include a medical device that is surgically implanted, or the replacement of such device.]

(1) Services that apply to children with surgically implanted devices, including cochlear implants. Related services do not include a medical device that is surgically implanted, the optimization of that device’s functioning (such as mapping), maintenance of that device, or the replacement of that device, provided that nothing in this paragraph:

(i) limits the right of a student with a surgically implanted device to receive related services that are determined by the CSE or CPSE to be necessary for the student to receive a free appropriate public education; or

(ii) limits the responsibility of a school district to appropriately monitor and maintain medical devices that are needed to maintain the health and safety of the student, including breathing, nutrition, or operation of other bodily functions, while the student is transported to and from school or is at school; or

(iii) prevents the routine checking of an external component of a surgically implanted device to make sure it is functioning properly.

(ss) School health services means [nursing] school nurse services provided by a qualified school nurse or other health services provided by a qualified person designed to enable a student with a disability to receive a free appropriate public education as described in the individualized education program of the student.

(zz) Student with a disability means a student with a disability as defined in section 4401(1) of Education Law, who has not attained the age of 21 prior to September 1st and who is entitled to attend public schools pursuant to section 3202 of the Education Law and who, because of mental, physical or emotional reasons, has been identified as having a disability and who requires special services and programs approved by the department. The terms used in this definition are defined as follows:

(1) . . .

(2) . . .

(3) . . .

(4) . . .

(5) . . .

(6) Learning disability means a disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written, which manifests itself in an imperfect ability to listen, think, speak, read, write, spell, or to do mathematical calculations, as determined in accordance with section [200.4(c)(6)] 200.4(j) of this Part. The term includes such conditions as perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia and developmental aphasia. The term does not include learning problems that are primarily the result of visual, hearing or motor disabilities, of mental retardation, of emotional disturbance, or of environmental, cultural or economic disadvantage.

(7) . . .

(8) . . .

(9) . . .

(10) . . .

(11) . . .

(12) . . .

(13) . . .

(bbb) Supplementary aids and services means aids, services, and other supports that are provided in regular education classes, [or] other education-related settings and in extracurricular and nonacademic settings to enable students with disabilities to be educated with nondisabled students to the maximum extent appropriate in accordance with the least restrictive environment.

(eee) Twelve-month special service and/or program means a special education service and/or program provided on a year-round basis, for students determined to be eligible in accordance with sections [200.6(j)(1)] 200.6(k)(1) and [200.16(h)(3)(v)] 200.16(i)(3)(v) of this Part whose disabilities require a structured learning environment of up to 12 months duration to prevent substantial regression. A special service and/or program shall operate for at least 30 school days during the months of July and August, inclusive of legal holidays, except that a program consisting solely of related service(s) shall be provided with the frequency and duration specified in the student's individualized education program.

(fff) Transition services means a coordinated set of activities for a student with a disability, designed within a results-oriented process, that is focused on improving the academic and functional achievement of the student with a disability to facilitate the student’s movement from school to post-school activities, including, but not limited to, post-secondary education, vocational education, integrated competitive employment (including supported employment), continuing and adult education, adult services, independent living, or community participation. The coordinated set of activities must be based on the individual student's needs, taking into account the student's strengths, preferences and interests, and shall include needed activities in the following areas:

(1) . . .

(2) . . .

(3) . . .

(4) . . .

(5) when appropriate, acquisition of daily living skills and provision of a functional vocational evaluation.

(nnn) Interpreting services means oral transliteration services, cued language transliteration services, sign language transliteration and interpreting services and transcription services, such as communication access real-time translation (CART), C-Print and TypeWell for students who are deaf or hard of hearing; and special interpreting services for students who are deaf-blind.

4. Section 200.2 of the Regulations of the Commissioner of Education is amended, effective July 1, 2007, as follows:

(a) Census and register of students with disabilities.

(1) . . .

(2) . . .

(3) . . .

(4) . . .

(5) . . .

(6) . . .

(7) Procedures to locate, identify, and evaluate all nonpublic private elementary and secondary school students with disabilities, including religious-school children as required by the Education Law must be established to ensure the equitable participation of parentally placed private school students with disabilities and an accurate count of such students. The child find activities must be similar to activities undertaken for students with disabilities in public schools and must be completed in a time period comparable to that for other students attending public schools in the school district. The school district shall consult with representatives of private schools and representatives of parents of parentally placed private school students with disabilities on the child find process.

(i) If a student is parentally-placed, or is going to be parentally-placed in a private elementary or secondary school that is not located in the student’s school district of residence, parental consent, or consent of a student 18 years of age or older, must be obtained before any personally identifiable information about the student is released between officials in the district where the private school is located and officials in the parent’s district of residence.

(ii) The school district shall maintain in its records and report to the commissioner, in a manner prescribed by the commissioner, on the number of students enrolled in such private schools by their parents who are evaluated to determine if they are students with disabilities, the number of such students who are determined to have a disability and the number of such students who received special education services under this Part.

(b) Written policy. Each board of education or board of trustees shall adopt written policy that establishes administrative practices and procedures:

(1) [establishes administrative practices and procedures] to ensure that students with disabilities residing in the district have the opportunity to participate in school district programs, to the maximum extent appropriate to the needs of the student including nonacademic and extracurricular programs and activities, which are available to all other students enrolled in the public schools of the district, which may include counseling services, athletics, transportation, health services, recreational activities, special interest groups or clubs sponsored by the school district, referrals to agencies that provide assistance to individuals with disabilities and employment of students, including both employment by the school district and assistance in making outside employment available;

(2) [establishes administrative practices and procedures] to ensure that each preschool student with a disability residing in the district has the opportunity to participate in preschool programs, including timely evaluation and placement;

(3) [establishes administrative practices and procedures] for appointing and training appropriately qualified personnel, including the members and chairpersons of the committee on special education and the committee on preschool special education, to carry out the functions identified in this Part;

(4) [establishes policies and administrative practices and procedures] to implement the provisions of section 200.6(a) of this Part and to provide special services or programs, to the extent appropriate to the needs of the student, to enable the student to be involved in and progress in the general education curriculum;

(5) [establishes administrative practices and procedures] for the purpose of ensuring that parents have received and understand the request for consent for evaluation of a preschool student;

(6) [establishes administrative practices and procedures] for the purpose of ensuring the confidentiality of personally identifiable data, information or records pertaining to a student with a disability. Such personally identifiable information shall not be disclosed by any officer or employee of the State Education Department or any school district, or member of a committee on special education or committee on preschool special education to any person other than the parent of such student, except in accordance with [sections] section 300.500 and [300.560 through 300.577] sections 300.610 through 300.625 and Part 99 of title 34 of the Code of Federal Regulations (Code of Federal Regulations, 2006 edition, title 34, section 300.500, Federal Register/ Vol.71, No.156/ August 14, 2006/ p.46791; title 34, sections 300.610-300.625, Federal Register/ Vol.71, No.156/ August 14, 2006/ pp.46802-46804 - Office of the Federal Register, National Archives and Records Administration, 800 North Capitol Street, NW Suite 700, Washington DC 20001; Code of Federal Regulations, [1999] 2006 edition, title 34, Part 99, Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402-0001[: 1999] - available at the Office of Vocational and Educational Services for Individuals with Disabilities, Room 1624, One Commerce Plaza, Albany, NY 12234);

(7) [establishes a plan and policies] for implementing schoolwide approaches, which may include a response to intervention process pursuant to section 100.2(ii) of this Title, and pre-referral interventions in order to remediate a student’s performance prior to referral for special education;

(8) [establishes plans and policies] for the appropriate declassification of students with disabilities which must include:

(i) . . .

(ii) . . .

(iii) the provision of educational and support services to the student upon declassification;

(9) [establishes administrative procedures] for the selection and board appointment of an impartial hearing officer consistent with the procedures in paragraph (e)(1) of this section and section 200.5(j) of this Part;

(10) and establishes a plan, pursuant to sections 1604(29-a), 1709(4-a), 2503(7-a) and 2554(7-a) of the Education Law, to ensure that all instructional materials to be used in the schools of the district are available in a usable alternative format, which shall meet National Instructional Materials Accessibility Standard [as defined in 20 U.S.C. section 1474(e)(3)(B) (Public Law section 108-446, section 674, 118 STAT. 2792; Superintendent of Documents, U. S. Government Printing Office, Stop SSOP, Washington, DC 20402-0001; 2004] in accordance with Appendix C to Part 300 of Title 34 of the Code of Federal Regulations (Code of Federal Regulation, 2006 edition, title 34, Part 300, Appendix C, Federal Register/ Vol. 71, No. 156/ August 14, 2006/ pp. 46814-46817 – Office of the Federal Register, National Archives and Records Administration, 800 North Capitol Street, NW, Suite 700, Washington, DC 20001; available at the Office of Vocational and Educational Services for Individuals with Disabilities, Room 1624, One Commerce Plaza, Albany, NY 12234), for each student with a disability in accordance with the student's educational needs and course selections at the same time that such materials are available to non-disabled students. For purposes of this paragraph, "alternative format" is defined as any medium or format for the presentation of instructional materials, other than a traditional print textbook, that is needed as an accommodation for a student with a disability enrolled in the school district, including but not limited to Braille, large print, open and closed captioned, audio, or an electronic file. An electronic file must be compatible with at least one alternative format conversion software program that is appropriate to meet the needs of the individual student. The plan shall:

(i) . . .

(ii) . . .

(iii) . . .

(iv) . . .

(v) . . .

(11) [establishes administrative practices and procedures] to ensure that:

(i) . . .

(a) . . .

(ii) . . .

(iii) . . .

(12) that [identifies] identify the measurable steps it shall take to recruit, hire, train and retain highly qualified personnel, as defined in section 120.6 of this Title and 34 CFR 300.18 (Code of Federal Regulations, 2006 edition, title 34, section 300.18, Federal Register/ Vol. 71, No. 156/ August 14, 2006/ pp. 46758-46759 – Office of the Federal Register, National Archives and Records Administration, 800 North Capitol Street, NW, Suite 700, Washington, DC 20001; available at the Office of Vocational and Educational Services for Individuals with Disabilities, Room 1624, One Commerce Plaza, Albany, NY 12234), to provide special education programs and services;

(13) that [describes] describe the guidelines for the provision of appropriate accommodations necessary to measure the academic achievement and functional performance of the student in the administration of district-wide assessments; [and]

(14) that [identifies] identify how the district, to the extent feasible, will use universal design principles in developing and administering any district-wide assessment programs; and

(15) to ensure that the school district publicly reports on revisions to its policies, procedures and/or practices upon a finding by the Department that the district has inappropriate policies, procedures or practices resulting in a significant disproportionality by race/ethnicity in the suspension, identification, classification and/or placement of students with disabilities.

(d) . . .

(e) Maintenance of lists. The board of education or trustees of each school district shall establish a list of:

(1) the name and statement of the qualifications of each impartial hearing officer who is:

(i) certified by the Commissioner of Education pursuant to section [220.1(x)(2)] 200.1(x)(4) of this Part; and

(ii) . . .

(2) . . .

(3) . . .

(f) . . .

(g) . . .

(h) . . .

(i) Responsibility of boards of cooperative educational services (BOCES). (1) Responsibility for ensuring the availability of instructional materials in alternative formats for students with disabilities. By July 1, 2002, each BOCES shall establish a plan to ensure that all instructional materials to be used in the programs of the BOCES are available in a usable alternative format, which shall meet National Instructional Materials Accessibility Standard [as defined in 20 U.S.C. section 1474(e)(3)(B) (Public law section 108-446, section 674, 118 STAT. 2792; Superintendent of Documents, Stop SSOP, U. S. Government Printing Office, Washington, DC 20402-0001; 2004] in accordance with Appendix C to Part 300 of Title 34 of the Code of Federal Regulations (Code of Federal Regulations, 2006 edition, title 34, Part 300, Appendix C, Federal Register/ Vol.71, No.156/ August 14, 2006/ pp. 46814-46817 - Office of the Federal Register, National Archives and Records Administration, 800 North Capitol Street, NW Suite 700, Washington DC 20001; available at the Office of Vocational and Educational Services for Individuals with Disabilities, Room 1624, One Commerce Plaza, Albany, New York 12234), for each student with a disability in accordance with the student's educational needs and course selections at the same time that such materials are available to non-disabled students. For purposes of this subdivision, "alternative format" is defined as any medium or format for the presentation of instructional materials, other than a traditional print textbook, that is needed as an accommodation for a student with a disability enrolled in a program of the BOCES, including but not limited to Braille, large print, open and closed captioned, audio, or an electronic file. An electronic file must be compatible with at least one alternative format conversion software program that is appropriate to meet the needs of the individual student. The plan shall:

(i) . . .

(ii) . . .

(iii) . . .

(iv) . . .

(v) . . .

(2) . . .

5. Subparagraph (v) of paragraph (2) of subdivision (c) and subdivision (d) of section 200.3 of the Regulations of the Commissioner of Education are amended, effective July 1, 2007, as follows:

(v) a school psychologist, whenever a new psychological evaluation is reviewed or a change to a program option with a more intensive staff/student ratio, as set forth in section [200.6(g)(4)] 200.6(h)(4) of this Part, is considered;

(d) The regular education teacher of the student with a disability must, to the extent appropriate, participate in the development, review and revision of a student's IEP, including assisting in the determination of:

(1) appropriate positive behavioral interventions and supports and other strategies for the student; and

(2) supplementary aids and services, program modifications [or] and supports for school personnel that will be provided for the student, consistent with section 200.4(d) of this Part.

6. Section 200.4 of the Regulations of the Commissioner of Education is amended, effective July 1, 2007, as follows:

(a) Referral. A student suspected of having a disability shall be referred in writing to the chairperson of the district's committee on special education or to the building administrator of the school which the student attends or is eligible to attend for an individual evaluation and determination of eligibility for special education programs and services. The school district must initiate a referral and promptly request parental consent to evaluate the student to determine if the student needs special education services and programs if a student has not made adequate progress after an appropriate period of time when provided instruction as described in section 100.2(ii) of this Title.

(1) . . .

(2) . . .

(3) . . .

(4) . . .

(5) . . .

(6) . . .

(7) . . .

(8) [In] Except as otherwise provided in section 200.5(b)(6) of this Part,in the absence of a written agreement to withdraw a referral, as described in paragraph (7) of this subdivision, and in the event that parental consent to an initial evaluation is not obtained within 30 days of the date of receipt of referral, the chairperson shall document attempts, including, but not limited to, telephone calls made or attempted and the results of those calls and correspondence sent to the parents and any responses received, made by the chairperson or other representatives of the committee to obtain parental consent, and shall notify the board of education that they may utilize the due process procedures described in section 200.5 of this Part to permit the district to conduct an evaluation of the student without the consent of the parent.

(9) The building administrator, upon receipt of a referral or copy of a referral, may request a meeting with the parent or person in parental relationship to the student, and the student, if appropriate, to determine whether the student would benefit from additional general education support services as an alternative to special education, including the provision of educationally related support services, speech and language improvement services, academic intervention services, and any other services designed to address the learning needs of the student and maintain a student's placement in general education with the provision of appropriate educational and support services.

(i) If the person making the referral is a professional staff member of the school district in which the student resides, that person shall attend such meeting. The building administrator shall ensure that the parent understands the proceedings of the meeting and shall arrange for the presence of an interpreter, if necessary. Any other person making a referral shall have the opportunity to attend such meeting. If at such meeting the parent or person in parental relationship and the building administrator agree in writing that, with the provision of additional general education support services, the referral is unwarranted, the referral shall be deemed withdrawn, and the building administrator shall provide the chairperson of the committee on special education, the person who made the referral if a professional staff member of the school district, the parent or person in parental relationship to the student, and the student, if appropriate, with copies of the agreement.

(ii) The copy of the agreement provided to the parent or person in parental relationship shall be in the native language of such person. Such agreement shall contain a description of the additional general education support services to be provided, instructional strategies to be used and student centered data to be collected and the proposed duration of such program. A copy of the agreement shall also be placed in the student's cumulative education record file.

(iii) The meeting:

[(i)](a) shall be conducted within 10 school days of the building administrator's receipt of the referral; and

[(ii)](b) shall not impede a committee on special education from continuing its duties and functions under this Part.

(b) Individual evaluation and reevaluation. (1) Unless a referral for an evaluation submitted by a parent or a school district is withdrawn pursuant to paragraph (a) (7) or (9) of this section after parental consent has been obtained or a parental refusal to consent is overridden, an individual evaluation of the referred student shall be initiated by a committee on special education. The individual evaluation shall be completed within 60 days of receipt of consent unless extended by mutual agreement of the student’s parents and the CSE pursuant to sections 200.4(b)(7)(i) and 200.4(j)(1) of this Part. The individual evaluation [and] shall include a variety of assessment tools and strategies, including information provided by the parent, to gather relevant functional, developmental and academic information about the student that may assist in determining whether the student is a student with a disability and the content of the student’s individualized education program, including information related to enabling the student to participate and progress in the general education curriculum (or for a preschool child, to participate in appropriate activities). The individual evaluation must be at no cost to the parent, and the initial evaluation must include at least:

(i) . . .

(ii) . . .

(iii) . . .

(iv) an observation of the student in the [current educational placement] student’s learning environment (including the regular classroom setting) or, in the case of a student of less than school-age or out of school, an environment appropriate for a student of that age, to document the student’s academic performance and behavior in the areas of difficulty; and

(v) . . .

(2) . . .

(3) . . .

(4) . . .

(5) . . .

(6) School districts shall ensure that:

(i) . . .

(ii) . . .

(iii) [tests] assessments and other evaluation materials include those tailored to assess specific areas of educational need and not merely those which are designed to provide a general intelligence quotient;

(iv) [tests] assessments are selected and administered to ensure that, when [a test] an assessment is administered to a student with impaired sensory, manual or speaking skills, the [test] assessment results accurately reflect the student's aptitude or achievement level or whatever other factors the test purports to measure, rather than reflecting the student's impaired sensory, manual or speaking skills, except where those skills are factors which the test purports to measure;

(v) . . .

(vi) . . .

(vii) . . .

(viii) . . .

(ix) . . .

(x) . . .

(xi) . . .

(xii) . . .

(xiii) for purposes of eligibility and continuing eligibility determinations, a copy of the evaluation report and the documentation of determination of eligibility are provided at no cost to the parent;

(xiv) the procedures for evaluating students suspected of having a learning disability are in accordance with [sections 300.540 through 300.543 of title 34 of the Code of Federal Regulations (Code of Federal Regulations, 1999 edition, Superintendent of Documents, U.S. Government Printing Office, Washington, D.C. 20402: 1999 - available at the Office of Vocational and Educational Services for Individuals with Disabilities, Room 1624, One Commerce Plaza, Albany, NY 12234)] subdivision (j) of this section;

(xv) the procedures for conducting expedited evaluations are conducted pursuant to [Part 201] section 201.6 of this Title;

(xvi) . . .

(xvii) assessments of students with disabilities who transfer from one school district to another school district in the same [academic] school year are coordinated with such student's prior and subsequent schools, as necessary, and as expeditiously as possible to ensure prompt completion of full evaluations.

(7) . . .

(8) . . .

(9) . . .

(c) Eligibility determinations. (1) [Upon completing the administration of tests and other evaluation materials,] In interpreting evaluation data for the purpose of determining if a student is a student with a disability, as defined in sections 200.1(mm) or (zz) of this Part, and determining the educational needs of the student, the committee on special education and other qualified individuals must [determine whether the student is a student with a disability, as defined in sections 200.1(mm) or 200.1(zz) of this Part] draw upon information from a variety of sources, including aptitude and achievement tests, parent input, and teacher recommendations, as well as information about the student’s physical condition, social or cultural background, and adaptive behavior; and ensure that information obtained from all these sources is documented and carefully considered. [and the] The school district must provide a copy of the evaluation report and the documentation of eligibility to the student's parent.

(2) A student shall not be determined eligible for special education if the determinant factor is:

(i) . . .

(ii) lack of appropriate instruction in math; or

(iii) . . .

(3) . . .

(4) . . .

(5) . . .

(6) [Learning disabilities. In determining whether] The determination that a student has a learning disability as defined in section 200.1(zz)(6) of this Part shall be made pursuant to subdivision (j) of this section.[, the school district:

(i) may use a process that determines if the student responds to scientific, research-based intervention as part of the evaluation procedures pursuant to paragraph (b) of this section; and

(ii) is not required to consider whether a student has a severe discrepancy between achievement and intellectual ability in oral expression, listening comprehension, written expression, basic reading skill, reading comprehension, mathematical calculation or mathematical reasoning.]

(d) Recommendation. For a student not previously identified as having a disability, the committee on special education shall provide a recommendation to the board of education, which shall arrange for the appropriate special education programs and services to be provided to the student with a disability within 60 school days of the receipt of consent to evaluate. For a student with a disability referred for review pursuant to subdivision (f) of this section, a recommendation shall be provided to the board of education, which shall arrange for the appropriate special education programs and services to be provided to the student with a disability within 60 school days of the referral for review of the student with a disability. Prior to the development of a recommendation, the committee shall ensure that the appropriateness of [the] reading and math instruction and other resources of the regular education program, including educationally related support services, and academic intervention services, has been considered.

(1) . . .

(2) Individualized education program (IEP). If the student has been determined to be eligible for special education services, the committee shall develop an IEP. IEPs developed on or after January 1, 2009, shall be on a form prescribed by the Commissioner. In developing the recommendations for the IEP, the committee must consider the results of the initial or most recent evaluation; the student’s strengths; the concerns of the parents for enhancing the education of their child; the academic, developmental and functional needs of the student, including, as appropriate, the results of the student's performance on any general State or district-wide assessment programs; and any special considerations in paragraph (3) of this subdivision. The IEP recommendation shall include the following:

(i) . . .

(ii) . . .

(iii) Measurable annual goals.

(a) The IEP shall list measurable annual goals, including academic and functional goals, consistent with the student's needs and abilities. The measurable annual goals[, including benchmarks or short-term objectives,] must relate to:

(1) . . .

(2) . . .

(b) . . .

(iv) . . .

(v) Special education program and services.

(a) The IEP shall indicate the recommended special education program and services as defined in section 200.1(qq) and 200.1(ww) of this Part from the options set forth in section 200.6 of this Part or, for preschool students from those options set forth in section [200.16(h)] 200.16(i) of this Part, and the supplementary aids and services as defined in section 200.1(bbb) of this Part that will be provided for the student:

(1) . . .

(2) . . .

(3) . . .

(b) . . .

(vi) . . .

(vii) . . .

(viii) Participation in regular [programs] class. The IEP shall provide:

(a) an explanation of the extent, if any, to which the student will not participate in regular [education programs] class; or

(b) . . .

(d) . . .

(ix) . . .

(x) . . .

(xi) . . .

(xii) . . .

(3) . . .

(4) Such recommendations shall

(i) be developed in meetings of the committee on special education.

(a) . . .

(b) where a child is determined to be at risk of a future placement in a residential school, the committee must, with parental consent or consent of a student 18 years of age or older, request in writing that a designee of the appropriate county or State agency participate in any proceeding of the committee to make recommendations concerning the appropriateness of residential placement and other programs and placement alternatives, including but not limited to, community support services that may be available to the family. The committee must notify the local social services district when a student who is in a foster care placement is at risk of a future placement in a residential school. A copy of such request must be forwarded to the Office of Mental Health and the Office of Mental Retardation and Developmental Disabilities. In the event that such persons are unable to attend such meetings, the committee shall attempt alternative means allowing for their participation, such as individual or conference telephone discussions, and such attempts shall be documented;

(c) if the purpose of the meeting is to consider [the need for transition services] the postsecondary goals for the student and the transition services needed to assist the student in reaching those goals, the school district shall invite the student [and a representative of the agencies likely to be responsible for providing or paying for transition services]. If the student does not attend, the district shall take steps to ensure that the student's preferences and interests are considered. To the extent appropriate and with parental consent or consent of a student 18 years of age or older, the school district must invite a representative of any participating agency that is likely to be responsible for providing or paying for transition services. If an agency invited to send a representative to a meeting does not do so, the district [shall] should take steps to involve the other agency in the planning of any transition services;

(d) . . .

(ii) . . .

(5) . . .

(6) . . .

(e) IEP implementation. (1) . . .

(2) . . .

(3) . . .

(4) . . .

(5) . . .

(6) . . .

(7) . . .

(8) Students with disabilities who transfer school districts. (i) Transfer within New York State. In the case of a student with a disability who had an IEP that was in effect in this State and who transfers from one school district and enrolls in a new school district within the same [academic] school year, the new school district shall provide such student with a free appropriate public education, including services comparable to those described in the previously held IEP, in consultation with the parents, until such time as the school district adopts the previously held IEP or develops, adopts and implements a new IEP that is consistent with Federal and State law and regulations.

(ii) Transfer from outside New York State. In the case of a student with a disability who transfers school districts within the same [academic] school year, who enrolls in a new school district and who had an IEP that was in effect in another State, the school district shall provide such student with a free appropriate public education, including services comparable to those described in the previously held IEP, in consultation with the parents, until such time as the school district conducts an evaluation pursuant to this section, if determined to be necessary by such school district, and develops a new IEP, if appropriate, that is consistent with Federal and State law and regulation.

(iii) . . .

(9) . . .

(f) . . .

(g) Amendments to the IEP. Amendments to an IEP made after the annual review [by the CSE] may be made by rewriting the IEP or by developing a written document to amend or modify the student’s current IEP, provided that:

(1) . . .

(2) . . .

(h) Requests to the committee on special education pursuant to section 4005 of the Education Law. (1) If, pursuant to section 4005 of the Education Law, a committee on special education receives a written request for evaluative information and program recommendations for a student from a Family Court judge, a probation department, a social services district, the Office of Child and Family Services, or a preadmission certification committee established pursuant to section 9.51(d) of the Mental Hygiene Law, the committee shall, with parental consent or consent of a student 18 years of age or older, provide such information and recommendation to the requesting agency within 42 days of the date of receipt of such a request, provided that the committee on special education can obtain the consent of the student's parent to conduct an evaluation.

(2) . . .

(3) . . .

(i) Written notice upon graduation or aging out. Pursuant to Education Law, section 4402(1)(b)(5), the committee on special education or, in the case of a State-operated school, the multidisciplinary team, shall provide written notice to the parents or guardian of each student specified in subparagraphs (1)(i) and (ii) of this subdivision and, if such student is 18 years of age or older, to the student, of the date upon which the student will no longer be entitled to receive tuition free educational services by reason of receipt of a high school diploma or in accordance with Education Law, section 4402(5), whichever is earlier.

(1) . . .

(2) . . .

(3) In addition to the requirements of paragraph (2) of this subdivision, the notice to the parent, or student, where appropriate, shall:

(i) . . .

(ii) . . .

(iii) provide assurances of the confidentiality of personally identifiable data which shall be in accordance with section 200.5(e) of this Part and section [247.4] 247.5 of this Title, as applicable.

(4) . . .

(5) . . .

(j) Additional procedures for identifying students with learning disabilities.

(1) A student suspected of having a learning disability as defined in section 200.1(zz)(6) of this Part must receive an individual evaluation that includes a variety of assessment tools and strategies pursuant to subdivision (b) of this section. The CSE may not rely on any single procedure as the sole criterion for determining whether a student has a learning disability. The individual evaluation shall be completed within 60 days of receipt of consent, unless extended by mutual agreement of the student’s parent and the CSE.

(i) The individual evaluation must include information from an observation of the student in routine classroom instruction and monitoring of the student’s performance that was either done before the student was referred for an evaluation or from an observation of the student’s academic performance in the regular classroom after the student has been referred for an evaluation and parental consent, consistent with section 200.5(b) of this Part, is obtained. Such observation shall be conducted by an individual specified in paragraph (2) of this subdivision.

(ii)_ To ensure that underachievement in a student suspected of having a learning disability is not due to lack of appropriate instruction in reading or mathematics, the CSE must, as part of the evaluation procedures pursuant to section 200.4(b) and (c) of this Part, consider,

(a) data that demonstrate that prior to, or as part of, the referral process, the student was provided appropriate instruction in regular education settings, delivered by qualified personnel; and

(b) data-based documentation of repeated assessments of achievement at reasonable intervals, reflecting formal assessment of student progress during instruction, which was provided to the student’s parents.

(2) The determination of eligibility for special education for a student suspected of having a learning disability must be made by the CSE, which shall include the student’s regular education teacher as defined in section 200.1(pp) of this Part and at least one person qualified to conduct individual diagnostic examinations of students (such as a school psychologist, teacher of speech and language disabilities, speech/language pathologist or reading teacher),

(3) A student may be determined to have a learning disability if, when provided with learning experiences and instruction appropriate for the student’s age or State-approved grade–level standards, the student does not achieve adequately for the student’s age or to meet State-approved grade-level standards in one or more of the following areas: oral expression, listening comprehension, written expression, basic reading skills, reading fluency skills, reading comprehension, mathematics calculation, mathematics problem solving; and

(i) The student either

(a) does not make sufficient progress to meet age or State-approved grade-level standards in one or more of the areas identified in this paragraph when using a process based on the student’s response to scientific, research-based intervention pursuant to section 100.2(ii) of this Title; or

(b) exhibits a pattern of strengths and weaknesses in performance, achievement, or both, relative to age, State-approved grade-level standards, or intellectual development that is determined by the CSE to be relevant to the identification of a learning disability, using appropriate assessments consistent with section 200.4(b) of this Part; and

(ii) The CSE determines that its findings under this paragraph are not primarily the result of a visual, hearing, or motor disability; mental retardation; emotional disturbance; cultural factors; environmental or economic disadvantage; or limited English proficiency.

(4) In addition to the criteria in paragraph (3) of this subdivision, the CSE is not prohibited from considering whether there is a severe discrepancy between achievement and intellectual ability in oral expression, listening comprehension, written expression, basic reading skill, reading fluency skills, reading comprehension, mathematical calculation and/or mathematical problem solving; provided that effective on and after July 1, 2012, a school district shall not use the severe discrepancy criteria to determine that a student in kindergarten through grade four has a learning disability in the area of reading.

(5) Specific documentation for the eligibility determination.

(i) When determining eligibility for a student suspected of having a learning disability, the CSE shall prepare a written report containing a statement of:

(a) whether the student has a learning disability;

(b) the basis for making the determination, including an assurance that the determination has been made in accordance with section 200.4(c)(1) of this Part;

(c) the relevant behavior, if any, noted during the observation of the student and the relationship of that behavior to the student’s academic functioning; (d) the educationally relevant medical findings, if any;

(e) whether, consistent with paragraph (3) of this subdivision:

(1) the student does not achieve adequately for the student’s age or to meet State-approved grade-level standards; and

(2) the student

(i) does not make sufficient progress to meet age or State-approved grade-level standards; or

(ii) exhibits a pattern of strengths and weaknesses in performance, achievement, or both, relative to age, State-approved grade level standards or intellectual development;

(f) the determination of the CSE concerning the effects of a visual, hearing, or motor disability; mental retardation; emotional disturbance; cultural factors; environmental or economic disadvantage; or limited English proficiency on the student’s achievement level; and

(g) if the student has participated in a process that assesses the student’s response to scientific, research-based intervention pursuant to section 100.2(ii) of this Title:

(1) the instructional strategies used and the student-centered data collected; and

(2) the documentation that the student’s parents were notified in accordance with section 100.2(ii)(1)(vi) of this Title.

(ii) Each CSE member must certify in writing whether the report reflects the member’s conclusion. If it does not reflect the member’s conclusion, the CSE member must submit a separate statement presenting the member’s conclusions.

7. Section 200.5 of the Regulations of the Commissioner of Education is amended, effective July 1, 2007, as follows:

(a) Prior written notice (notice of recommendation) and other written notifications. (1) Prior written notice (notice of recommendation) that meets the requirements of section 200.1(oo) of this Part must be given to the parents of a student with a disability a reasonable time before the school district proposes to or refuses to initiate or change the identification, evaluation, educational placement of the student or the provision of a free appropriate public education to the student. Effective, January 1, 2009 the prior written notice shall be on the form prescribed by the Commissioner.

(2) . . .

(3) The prior written notice must include:

(i) . . .

(ii) . . .

(iii) a description of [any] other options that the [district] CSE considered and the reasons why those options were rejected;

(iv) a description of each evaluation procedure, [test] assessment, record, or report the [district] CSE used as a basis for the proposed or refused action;

(v) a description of [the] other factors that are relevant to the [district’s] CSE’s proposal or refusal;

(vi) a statement that the parents of a student with a disability have protection under the procedural safeguards of this Part, and, if this notice is not an initial referral for an evaluation, the means by which a copy of a description of the procedural safeguards can be obtained; and

(vii) . . .

(4) . . .

(5) . . .

(6) Other required notifications. A parent of a student with a disability shall also be provided written notification as follows:

(i) . . .

(ii) . . .

(iii) For students described in section [200.4(h)(1)] 200.4(i)(1), notice must be provided to the parent and, beginning at age 18 to the student, in accordance with section [200.4(h)(2) and (3)] 200.4(i)(2) and (3) of this Part.

(iv) . . .

(v) . . .

(7) . . .

(b) Consent. (1) The school district must make reasonable efforts to obtain written informed consent of the parent, as such term is defined in section 200.1(l) of this Part, and must have a detailed record of its attempts, and the results of those attempts. Written consent of the parent[, defined in section 200.1(l) of this Part,] is required:

(i) prior to conducting an initial evaluation or reevaluation, except that:

(a) . . .

(b) parental consent need not be obtained for a reevaluation if the school district can demonstrate that it has [taken] made reasonable [measures] efforts to obtain that consent, and the student’s parents failed to respond;

[(1) the school district must have a record of its attempts to obtain parental consent;]

(c) in the event the parent of the student to be evaluated does not grant consent for an initial evaluation, such parent shall be informed by the committee chairperson that, upon request, the parent will be given an opportunity to attend an informal conference with the committee or designated professionals most familiar with the proposed evaluation, the person who referred the student for such an evaluation, and counsel or an advisor of the parent’s choice, at which time the parent shall be afforded an opportunity to ask questions regarding the proposed evaluation. If at this meeting the parent and the person initiating the referral agree in writing that the referral is not warranted, the referral shall be withdrawn. Except in the case of a preschool child, a student who is home instructed pursuant to section 100.10 of this Title or a student placed in a private school by the parents at their own expense, if the parent does not request or attend such a conference, or continues to withhold consent for evaluation otherwise required for a period of 30 days after the date of receipt of a referral, the board of education may pursue the initial evaluation of the student by utilizing the due process procedures described in this section;

(ii) . . .

(iii) . . .

(iv) prior to releasing any personally identifiable information as described in subdivision (e) of this section, in accordance with sections 200.2(b)(6) and [200.4(g)] 200.4(h) of this Part;

(v) prior to each time the school district [proposes to access] accesses a parent’s private or public insurance proceeds in accordance with the requirements of 34 C.F.R. sections 300.154(d)(2)(iv)(A) and (e)(1) and (e)(2)(i) (Code of Federal Regulations, 2006 edition, title 34, section 300.154, Federal Register/ Vol. 71, No. 156/ August 14, 2006/ pp. 46771-46772, Office of the Federal Register, National Archives and Records Administration, 800 North Capitol Street, NW, Suite 700, Washington, DC 20001; available at the Office of Vocational and Educational Services for Individuals with Disabilities, Room 1624 One Commerce Plaza, Albany, NY 12234).

(a) the parents must be informed that their refusal to permit the school district to access their public benefits or insurance or private insurance does not relieve the school district of its responsibility to ensure that all required services are provided at no cost to the parents.

(2) . . .

(3) If the parents of a student with a disability refuse to give consent or fail to respond to a request to provide consent for an initial evaluation or reevaluation, the school district may, but is not required to, continue to pursue those evaluations by using the due process procedures described in this section. The school district does not violate its obligation to locate, identify, and evaluate a student in accordance with sections 200.2(a) and 200.4(b) and (c) of this Part if it declines to pursue the evaluation.

(4) . . .

(5) Consent for a ward of the State. If the student is a ward of the State and is not residing with the student's parent, the school district shall make reasonable efforts to obtain the informed consent from the parent of the student for an initial evaluation to determine whether the student is a student with a disability. The school district is not required to obtain informed consent from the parent of a student, as defined in section 200.1(ii) of this Part, for an initial evaluation to determine eligibility for special education services if:

(i) . . .

(ii) . . .

(iii) the rights of the parent to make educational decisions have been subrogated by a judge in accordance with State law and consent for an initial evaluation has been given by an individual appointed by the judge to represent the student.

(6) Consent for a student who is home instructed, pursuant to section 100.10 of this Title, or placed in a private school by parents at their own expense. If a parent of student who is home instructed or placed in a private school by their parents at their own expense does not provide consent for an initial evaluation or reevaluation, or the parent fails to respond to a request to provide consent, the school district may not continue to pursue those evaluations by using the due process procedures described in this section; and the school district is not required to consider the student as eligible for special education services.

(c) [Notice of meetings] Meeting notice. (1) Whenever the committee on special education proposes to conduct a meeting related to the development or review of a student’s IEP, or the provision of a free appropriate public education to the student, the parent must receive notification in writing at least five days prior to the meeting. The meeting notice may be provided to the parent less than five days prior to the meeting to meet the timelines in accordance with Part 201 of this Title and in situations in which the parent and the school district agree to a meeting that will occur within five days. The parent may elect to receive the notice of meetings by an electronic mail (e-mail) communication if the school district makes such option available. Effective, January 1, 2009, meeting notice shall be on a form prescribed by the Commissioner.

(2) Such notice shall:

(i) . . .

(ii) . . .

(iii) . . .

(iv) . . .

(v) . . .

(vi) . . .

(vii) if the purpose of the meeting is to consider postsecondary goals and transition services, the meeting notice must also:

(a) . . .

(b) . . .

(d) Parent participation in CSE meetings. (1) . . .

(2) . . .

(3) . . .

(4) . . .

(5) . . .

(6) The parents of a student with a disability must be afforded an opportunity to inspect and review all education records with respect to the identification, evaluation, and educational placement of the student and the provision of a free appropriate public education to the student, in accordance with the requirements of 34 C.F.R. sections [300.562 through 300.576] 300.613 through 300.625 (Code of Federal Regulations, [1999] 2006 edition, [Superintendent of Documents, U. S. Government Printing Office, Washington, DC 20402-9328: 1999 -] title 34, sections 300.613 – 300.625, Federal Register/ Vol. 71, No. 156/ August 14, 2006/ pp. 46803-46804, Office of the Federal Register, National Archives and Records Administration, 800 North Capitol Street, NW, Suite 700, Washington, DC 20001; available at the Office of Vocational and Educational Services for Individuals with Disabilities, Room 1624 One Commerce Plaza, Albany, NY 12234).

(7) . . .

(e) Confidentiality of personally identifiable data. (1) . . .

(2) Each public school, public agency and approved private school subject to the provisions of this Part shall preserve the confidentiality of personally identifiable data, information or records pertaining to students with disabilities. Such confidentiality must be preserved in a manner consistent with the procedures adopted pursuant to section 200.2(b)(6) of this Part and/or in accordance with 20 USC 1232(g) and the provisions of Part 99 of title 34 of the Code of Federal Regulations or its successor and sections 300.610 through 300.625. (United States Code, [1994] 2000 edition, Volume [10] 11, 2001; United States Code, 2000 Edition, Supplement III, Volume Two, 2005, Superintendent of Documents, U. S. Government Printing Office, Washington, DC 20402-9328: [1995] 2004; Code of Federal Regulations, [1999] 2006 edition, title 34, Part 99, Superintendent of Documents, U. S. Government Printing Office, Stop SSOP, Washington, DC 20402 -0001 [: 1999] ; Code of Federal Regulations, 2006 edition, title 34, sections 300.610-300.625, Federal Register/ Vol.71, No.156/ August 14, 2006/ pp.46802-46804 - Office of the Federal Register, National Archives and Records Administration, 800 North Capitol Street, NW Suite 700, Washington DC 20001 – available at the Office of Vocational and Educational Services for Individuals with Disabilities; Room 1624, One Commerce Plaza, Albany, NY 12234).

(f) Procedural safeguards notice. (1) . . .

(2) . . .

(3) A copy of such notice must be given to the parents of a student with a disability, at a minimum one time per year and also:

(i) . . .

(ii) upon the first filing of a due process complaint notice to request mediation or an impartial hearing as described in subdivisions (h) and (j) of this section; [and]

(iii) upon request by a parent[.];

(iv) upon a decision to impose a suspension or removal that constitutes a disciplinary change in placement pursuant to section 201.2(e) of this Title; and

(v) upon first receipt of a State complaint pursuant to section 200.5(l) of this Part.

[(4) The procedural safeguards notice must include a full explanation of all of the procedural safeguards available under this Part relating to

(i) independent educational evaluation;

(ii) prior written notice;

(iii) parental consent;

(iv) access to educational records;

(v) opportunity to present and resolve due process complaints, including the time period in which to request an impartial hearing, the opportunity for the school district to resolve the complaint and the availability of mediation;

(vi) the student’s placement during pendency of due process proceedings;

(vii) procedures for students who are subject to placement in an interim alternative educational setting;

(viii) requirements for unilateral placement by parents of students in private schools at public expense;

(ix) due process hearings, including requirements for disclosure of evaluation results and recommendations;

(x) State-level appeals;

(xi) civil action, including the time period in which to file such action;

(xii) attorney’s fees;

(xiii) State complaint procedures, including a description of how to file a complaint and the timelines under those procedures; and

(xiv) the parents’ right to receive information upon request relating to obtaining free or low-cost legal and other relevant services at no expense to the school district.]

[(5)](4) . . .

[(6)](5) . . .

(g) Independent educational evaluations. (1) Requests by parents. If the parent disagrees with an evaluation obtained by the school district, the parent has a right to obtain an independent educational evaluation at public expense. A parent is entitled to only one independent educational evaluation at public expense each time the school district conducts an evaluation with which the parent disagrees.

(i) . . .

(ii) The criteria under which the evaluation is obtained, including the location of the evaluation and the qualifications of the examiner, shall be the same as the criteria which the school district uses when it initiates an evaluation, to the extent those criteria are consistent with the parent’s right to an independent educational evaluation. A school district may not impose additional conditions or timelines related to obtaining an independent educational evaluation at public expense.

(iii) If a parent requests an independent educational evaluation at public expense, the school district may ask for the parent’s reason why he or she objects to the public evaluation.

(a) The explanation by the parent in subparagraph (iii) of this paragraph may not be required and the school district may not unreasonably delay either providing the independent educational evaluation at public expense or [initiating a due process] filing a due process complaint notice to request a hearing to defend the public evaluation.

(iv) If a parent requests an independent educational evaluation at public expense, the school district must, without unnecessary delay, either ensure an independent educational evaluation is provided at public expense or [initiate an impartial] file a due process complaint notice to request a hearing to show that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria.

(v) [If the hearing officer determines that the evaluation is appropriate, or that the evaluation obtained by the parent did not meet school district criteria, the parent has a right to an independent evaluation, but not at public expense.

(a) If the parent obtains an independent evaluation at private expense, the results of the evaluation must be considered by the school district in any decision made with respect to the provision of a free appropriate public education to the student; and may be presented as evidence at a hearing under this section regarding the student.] If the school district files a due process complaint notice to request an impartial hearing and the final decision is that the school district’s evaluation is appropriate, or that the evaluation obtained by the parent did not meet school district criteria, the parent has the right to an independent educational evaluation, but not at public expense.

(vi) If the parent obtains an independent educational evaluation at public expense or shares with the school district an evaluation obtained at private expense, the results of the evaluation:

(a) must be considered by the school district, if it meets the school district’s criteria, in any decisions made with respect to the provision of a free appropriate public education for the student; and

(b) may be presented by any party as evidence at an impartial hearing for that student.

(2) . . .

(h) Mediation. (1) Each school district must ensure that procedures are established and implemented to allow parties to resolve disputes involving any matter for which an impartial due process hearing may be brought through a mediation process, including matters arising prior to the filing of a [request for an impartial hearing pursuant to subdivisions (j) and (k) of this section] due process complaint notice. Such procedures must ensure that:

(i) . . .

(ii) the mediation process is not used to deny or delay a parent’s right to a [due process] hearing on the parent’s due process complaint or to deny any other rights afforded under this Part;

(iii) the mediation session is conducted by a qualified and impartial mediator, as defined in section 200.1(dd) of this Part, who is trained in effective mediation techniques, is knowledgeable in laws and regulations relating to the provision of special education services and who is selected by the community dispute resolution center on a random, i.e., rotation basis or, if not selected on a random basis, then by mutual agreement of both parties[;]. An individual who serves as a mediator may not be the employee of any school district or State agency that is involved in the education or care of the student and must not have a personal or professional interest that conflicts with the individual’s objectivity;

(iv) . . .

(v) . . .

(vi) in the case that a resolution is reached to resolve the complaint through the mediation process, the parties shall execute a legally binding written agreement that sets forth the resolution and that states that all discussions that occurred during the mediation process shall remain [be] confidential and may not be used as evidence in any subsequent due process hearing or civil proceeding of any federal or State court. The agreement shall be signed by both the parent and a representative of the school district who has the authority to bind the school district. The written, signed agreement is enforceable in any State court of competent jurisdiction or in a district court of the United States.

(2) . . .

(3) . . .

(4) . . .

(5) . . .

(i) Due process complaint notification requirements. (1) A parent or school district may [present a] file a due process complaint with respect to any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student. The party presenting the complaint, or the attorney representing such party, shall provide a written due process complaint notice to the party, which shall include:

(i) . . .

(ii) the address of the residence of the student [(or available contact information] or in the case of a homeless student as defined in section 200.1(hhh) of this Part[);], available contact information for the student and the name of the school the student is attending;

(iii) . . .

(iv) a description of the nature of the problem of the student relating to such proposed or refused initiation or change, including facts relating to such problem; and

(v) . . .

(2) . . .

(3) The due process complaint notice shall be deemed to be sufficient unless the party receiving the notice notifies the impartial hearing officer, appointed in accordance with the rotational selection process in section 200.2(e)(1) of this Part and the requirements in subparagraphs (3)(i) and (ii) of subdivision (j) of this Part, and the other party in writing, within 15 days of the receipt of the due process complaint notice, that the receiving party believes the notice has not met the requirements of paragraph (1) of this subdivision. No party may challenge the sufficiency of a due process complaint using this procedure for expedited impartial hearings conducted pursuant to section 201.11 of this Title.

(4) . . .

(5) . . .

(6) . . .

(7) Amended due process complaint notice. (i) . . .

(ii) The applicable timelines for an impartial due process hearing, including the timelines for [a] the resolution [session] process, shall recommence at the time the party files an amended due process complaint notice.

(j) Impartial due process hearings. (1) A parent or a school district must submit a complete due process complaint notice pursuant to subdivision (i) of this section prior to initiation of an impartial due process hearing on matters relating to the identification, evaluation or educational placement of a student with a disability, or the provision of a free appropriate public education to the child.

(i) . . .

(ii) . . .

(iii) [When an impartial due process hearing is requested by either party, the] The school district shall inform the parent in writing of the availability of mediation and of any free or low-cost legal and other relevant services, such as parent centers, available in the area:

(a) when an impartial due process hearing is requested; or

(b) at the parent’s request.

(2) Resolution [session] process. (i) [Preliminary] Resolution meeting. Prior to the opportunity for an impartial due process hearing under paragraph (1) of this subdivision, the school district shall, within 15 days of receiving the due process complaint notice from the parent, convene a meeting with the parents and the relevant member or members of the committee on special education, as determined by the school district and the parent, who have specific knowledge of the facts identified in the complaint, which shall include a representative of the school district who has decision-making authority on behalf of the school district and may not include an attorney of the school district unless the parent is accompanied by an attorney, where the parents of the student discuss their complaint and the facts that form the basis of the complaint, and the school district has the opportunity to resolve the complaint. The school district shall take steps to ensure that one or both of the parents of the student with a disability are present at the resolution meeting, including notifying parents of the meeting early enough to ensure that they will have the opportunity to attend and scheduling the resolution meeting at a mutually agreed on time and place and in a location that is physically accessible to the parents.

(ii) . . .

(iii) Waiver of resolution [session] process. The parent and the school district may agree, in writing, to waive the resolution [session] process or agree to use the mediation process described in subdivision (h) of this section to resolve the dispute.

(iv) Written settlement agreement. If, during the resolution process, the parent and school district reach an agreement to resolve the complaint [at a resolution session], the parties shall execute a legally binding agreement that is signed by both the parent and a representative of the school district who has the authority to bind the school district. Such agreement shall be enforceable in any State court of competent jurisdiction or in a district court of the United States. A party may void such agreement within three business days of the agreement’s execution.

(v) [Timelines for resolution session] Resolution period. If the school district has not resolved the due process complaint to the satisfaction of the parents within 30 days of the receipt of the due process complaint notice, the impartial due process hearing may occur[, and all the applicable timelines for an impartial due process hearing under this subdivision shall commence] consistent with the time period provided in section 200.5(j)(3)(iii) of this Part.

(vi) Failure to convene or participate. Except where the parties have jointly agreed to waive the resolution process or use mediation, the failure of a parent filing a due process complaint to participate in the resolution meeting will delay the timeline for the resolution process and due process hearing until the meeting is held.

(a) If the school district is unable to obtain the participation of the parent in the resolution meeting after reasonable efforts have been made (and documented), the school district may, at the conclusion of the 30-day period, request that an impartial hearing officer dismiss the parents’ due process complaint.

(b) If the school district fails to hold the resolution meeting within 15 days of receipt of the parents’ due process complaint or fails to participate in the resolution meeting, the parent may seek the intervention of the impartial hearing officer to begin the due process hearing timeline.

(3) Initiation of an impartial due process hearing. [In the event that the complaint is not resolved in a resolution session conducted pursuant to paragraph (2) of this subdivision] Upon receipt of the parent’s due process complaint notice, or the filing of the school district’s due process complaint notice, the board of education shall arrange for an impartial due process hearing to be conducted in accordance with the following rules:

(i) Appointment from the impartial hearing officer list must be made in accordance with the rotational selection process established in section 200.2(e)(1) of this Part and the administrative procedures established by the board of education pursuant to section 200.2(b)(9) of this Part.

(a) . . .

(b) The impartial hearing officer may not accept appointment unless he or she is available to make a determination of sufficiency of a due process complaint notice within five days of receiving such a request and to initiate the hearing within the first 14 days of the time period specified in clause (a)[,] or (b) [or (c)] of subparagraph (iii) of this paragraph.

(ii) . . .

(iii) Timeline for commencing the hearing or pre-hearing conference. Unless an extension is granted pursuant to subparagraph (5)(i) of this subdivision:[, the hearing, or a pre-hearing conference, shall commence within the first 14 days after:

(a) the date upon which the impartial hearing officer receives the parties’ written waiver of the resolution session; or

(b) the date upon which the impartial hearing officer receives the parties’ written confirmation that a resolution session was held but no agreement could be reached; or

(c) the expiration of the 30-day period beginning with the receipt of the due process complaint notice, whichever occurs first.]

(a) when a school district files a due process complaint notice, the hearing or pre-hearing conference shall commence within the first 14 days after the date upon which the impartial hearing officer is appointed.

(b) when a parent files a due process complaint notice, the hearing or a pre-hearing conference shall commence within the first 14 days after:

(1) the date upon which the impartial hearing officer receives the parties’ written waiver of the resolution meeting; or

(2) the impartial hearing officer receives the parties’ written confirmation that a mediation or resolution meeting was held but no agreement could be reached; or

(3) the expiration of the 30-day resolution period, whichever shall occur first, unless

(4) the parties agree in writing to continue mediation at the end of the 30-day resolution period, in which case, the hearing or pre-hearing conference shall commence within the first 14 days after the impartial hearing officer is notified in writing that either party withdrew from mediation.

(iv) . . .

(v) . . .

(vi) . . .

(vii) . . .

(viii) In the event the impartial hearing officer requests an independent educational evaluation as part of a hearing, the cost of the evaluation must be at public expense.

(ix) . . .

(x) . . .

(xi) . . .

(xii) The parents, school authorities, and their respective counsel or representative, shall have an opportunity to present evidence, compel the attendance of witnesses and to confront and question all witnesses at the hearing. Each party shall have the right to prohibit the introduction of any evidence the substance of which has not been disclosed to such party at least five business days before the hearing.

(a) Additional disclosure of information. [Except as provided for in section 201.11 of this Title, not] Not less than five business days prior to a hearing, each party shall disclose to all other parties all evaluations completed by that date and recommendations based on the offering party’s evaluations that the party intends to use at the hearing. An impartial hearing officer may bar any party that fails to comply with this requirement from introducing the relevant evaluation or recommendation at the hearing without the consent of the other party.

(b) . . .

(d) . . .

(e) . . .

(f) . . .

(g) . . .

(xiii) . . .

(xiv) . . .

(xv) . . .

(xvi) . . .

(xvii) . . .

(4) Decision of the impartial hearing officer. (i) . . .

(ii) . . .

(iii) Settlement agreement. A settlement agreement shall not constitute a final decision, prescription or order of the impartial hearing officer. The settlement agreement may be read into the record as an agreement between the parties only. Such agreement shall be enforceable in any State court of competent jurisdiction or in a district court of the United States.

(5) Timeline to render a decision. Except as provided in section [200.16(g)(9)] 200.16(h)(9) of this Part and section 201.11 of this Title, the impartial hearing officer shall render a decision, and mail a copy of the written, or at the option of the parents, electronic findings of fact and the decision to the parents, to the board of education, and to the Office of Vocational and Educational Services for Individuals with Disabilities (VESID) of the State Education Department, not later than 45 days from the date required for commencement of the impartial hearing in accordance with subparagraph (3)(iii) of this subdivision. In cases where extensions of time have been granted beyond the applicable required timelines, the decision must be rendered and mailed no later than 14 days from the date the impartial hearing officer closes the record. The date the record is closed shall be indicated in the decision. The record of the hearing and the findings of fact and the decision shall be provided at no cost to the parents. All personally identifiable information shall be deleted from the copy forwarded to VESID.

(i) An impartial hearing officer may grant specific extensions of time beyond the periods set out in this paragraph, in subparagraph (3)(iii) of this subdivision, or in section [200.l6 (g)(9)] 200.16(h)(9) of this Part at the request of either the school district or the parent. Each extension shall be for no more than 30 days. Not more than one extension at a time may be granted. The reason for each extension must be documented in the hearing record.

(ii) . . .

(iii) . . .

(iv) . . .

(v) The impartial hearing officer shall determine when the record is closed and notify the parties of the date the record is closed. The decision of the impartial hearing officer shall be based solely upon the record of the proceeding before the impartial hearing officer, and shall set forth the reasons and the factual basis for the determination. The decision shall reference the hearing record to support the findings of fact. The impartial hearing officer shall attach to the decision a list identifying each exhibit admitted into evidence. Such list shall identify each exhibit by date, number of pages and exhibit number or letter. In addition, the decision shall include an identification of all other items the impartial hearing officer has entered into the record. The decision shall also include a statement advising the parents and the board of education of the right of any party involved in the hearing to obtain a review of such a decision by the State review officer in accordance with subdivision [(j)] (k) of this section. The decision of the impartial hearing officer shall be binding upon both parties unless appealed to the State review officer.

(k) . . .

(l) State complaint procedures (1) Filing a complaint.

(i) An organization or individual, including those from another state, may file a signed written complaint under the procedures described in this paragraph.

(ii) The complaint must include:

(a) . . .

(b) . . .

(d) if alleging violations with respect to a specific student:

(1) the name and address of the residence of the student;

(2) the name of the school the student is attending;

(3) in the case of a homeless child or youth as defined in section 200.1(hhh) of this Part, available contact information for the student, and the name of the school the student is attending;

(4) a description of the nature of the problem of the student, including facts relating to the problem; and

(5) a proposed resolution of the problem to the extent known and available to the party at the time the complaint is filed.

(iii) Limitation of time for filing a complaint.

(a) The complaint must [be received within] allege a violation that occurred not more than one year [of the date of the alleged violation, except that the one-year limitation shall not apply upon a finding that:

(1) . . .

(2) the complainant is requesting compensatory services for a violation that occurred not more than three years prior to the date that the written complaint, under the procedures described in this subdivision, is received.] prior to the date that the State complaint is received.

(iv) . . .

(v) The party filing the State complaint must forward a copy of the State complaint to the school district or public agency serving the student at the same time the party files the State complaint with the State Education Department.

(vi) The school district, or public agency when appropriate, must provide a procedural safeguards notice to the parent filing the State complaint upon receipt of the parent’s first State complaint in a school year.

(2) Complaint process. Upon receipt of a complaint the State Education Department:

(i) . . .

(ii) may require a school district or other public agency to submit a written reply to the complaint[;] which could include, at the discretion of the school district or other public agency, a proposal to resolve the complaint or notification to the Department that the parent who has filed the State complaint and the school district or other public agency have agreed to voluntarily engage in mediation;

(iii) . . .

(iv) . . .

(v) . . .

(vi) shall issue the decision in subparagraph (v) of this paragraph within 60 days of receipt of the complaint except:

(1) where exceptional circumstances exist with respect to a particular complaint or

(2) when the parent and school district or other public agency involved agree to extend the time to engage in mediation pursuant to 200.5(h) of this Part;

(vii) . . .

(viii) . . .

(3) . . .

(4) . . .

(m) Student’s Status During Proceedings. (1) . . .

(2) . . .

(3) If the complaint involves an application for initial services as a preschool student with a disability from a child who is transitioning from early intervention to preschool special education and related services, the school district is not required to provide the early intervention services that the child had been receiving. If the child is found eligible for special education and related services as a preschool student with a disability and the parent consents to the initial provision of special education and related services consistent with section 200.16(h)(7) of this Part, then the school district must provide those special education and related services that are not in dispute between the parent and the school district.

(n) Surrogate parents. (1) . . .

(2) . . .

(3) Procedures for assigning surrogates. Assignment of a surrogate parent to a particular student shall be made in accordance with the following procedures:

(i) . . .

(ii) . . .

(iii) The committee on special education shall determine whether the student’s parents can be identified or located, or whether the student is a ward of the State, consistent with paragraph (1) of this subdivision. Where the student is known to the school district to be a ward of the State, such reasonable efforts to discover the whereabouts of a parent shall include consultation with the local social services district or other agency responsible for the care of the student. The determination of the need for a surrogate parent shall be completed within a reasonable time following the receipt of a referral for an initial evaluation, reevaluation or services. If the committee on special education finds that there is a need for a surrogate parent, a surrogate parent who meets the qualifications identified in paragraph (2) of this section shall be selected from the list approved by the board of education, except as otherwise provided in subparagraph (v) [or (vi)] through (vii) of this paragraph, within 10 business days of the date of the determination by the committee of the need for the surrogate parent.

(iv) . . .

(v) . . .

(vi) . . .

(vii) Unaccompanied homeless youth. In the case of a child who is an unaccompanied homeless youth, appropriate staff of emergency shelters, transitional shelters, independent living programs and street outreach programs may be appointed as temporary surrogate parents without regard to paragraph (2) of this section, until a surrogate can be appointed that meets the appropriate qualifications.

8. Section 200.6 of the Regulations of the Commissioner of Education is amended, effective July 1, 2007, as follows:

§200.6 Continuum of services.

(a) A student with a disability shall be provided with appropriate special education.

(1) Students with disabilities shall be provided special education in the least restrictive environment, as defined in section 200.1(cc) of this Part. To enable students with disabilities to be educated with nondisabled students to the maximum extent appropriate, specially designed instruction and supplementary services may be provided in the regular class, including, as appropriate, providing related services, resource room programs and special class programs within the general education classroom. [Such services may include, but are not limited to, consultant teacher services and other group or individual supplemental or direct special education instruction].

(2) . . .

(3) . . .

(b) . . .

(d) Consultant teacher services. Consultant teacher services, as defined in section 200.1 (m) of this Part, shall be for the purpose of providing direct and/or indirect services to students with disabilities [enrolled in] who attend regular education classes, including career and technical education classes, and/or to such students’ regular education teachers. Such services shall be recommended by the committee on special education to meet specific needs of such students and [shall be included in] the student's individualized education program (IEP) shall indicate the regular education classes in which the student will receive consultant teacher services. Consultant teacher services shall be provided in accordance with the following provisions:

(1) . . .

(2) Each student with a disability requiring consultant teacher services shall receive direct and/or indirect services consistent with the student's IEP for a minimum of two hours each week, except that the committee on special education may recommend that a student with a disability who also needs resource room services in addition to consultant teacher services, may receive a combination of such services consistent with the student’s IEP for not less than three hours each week.

(3) . . .

(e) . . .

(f) Resource room programs. Resource room programs shall be for the purpose of supplementing the regular or special classroom instruction of students with disabilities who are in need of such supplemental programs.

(1) Each student with a disability requiring a resource room program shall receive not less than three hours of instruction per week in such program except that the committee on special education may recommend that for a student with a disability who also needs consultant teacher services in addition to resource room services may receive a combination of such services consistent with the student’s IEP for not less than three hours per week.

(2) . . .

(3) . . .

(4) . . .

(5) . . .

(6) . . .

(g) A school district may include integrated co-teaching services in its continuum of services. Integrated co-teaching services means the provision of specially designed instruction and academic instruction provided to a group of students with disabilities and nondisabled students.

(1) The maximum number of students with disabilities receiving integrated co-teaching services in a class shall be determined in accordance with the students’ individual needs as recommended on their IEPs, provided that effective July 1, 2008, the number of students with disabilities in such classes shall not exceed 12 students.

(2) School personnel assigned to each class shall minimally include a special education teacher and a general education teacher.

(3) Additional personnel, including supplementary school personnel, assigned to such classes by the district, may not serve as the special education teacher pursuant to paragraph (2) of this subdivision.

[(g)](h) . . .

[(h)](i) . . .

[(i)](j) In-state or out-of-state private schools. (1) State assistance for instruction of public school students placed in approved private schools. An application by a board of education for State reimbursement pursuant to section 4405 of the Education Law for a student in an in-state or out-of-state private school shall be approved by the commissioner provided that:

(i) . . .

(ii) . . .

(iii) The committee on special education has certified that the student is of school-age and has a disability or combination of disabilities, and has further documented that the nature or severity of the student's disability is such that appropriate public facilities for instruction are not available. This documentation shall include, but need not be limited to:

(a) . . .

(b) documentation of all efforts to enable the student to benefit from instruction in less restrictive settings using support services and supplementary aids and special education services as set forth in subdivisions (d), (e), (f) [and] , (g) and (h) of this section, and/or for those services not used, a statement of reasons why such services were not recommended;

(d) . . .

(e) . . .

(f) . . .

(iv) . . .

(2) . . .

(3) . . .

(4) Implementation of placement. (i) It shall be the duty of the local board of education to implement a board-approved committee on special education recommendation for placement in an approved private school within the time prescribed by section [200.4(d)] 200.4(e)(1) of this Part.

(ii) Neither the filing of an application or revised application for reimbursement, nor the filing of a request for review, shall be deemed to relieve the board of education of its responsibility to provide appropriate special programs and services within [60] 30 school days of receipt of the recommendation of its committee on special education.

(5) . . .

[(j)](k) Twelve-month special service and/or program. (1) Eligibility of students for 12-month special services and/or programs. Students shall be considered for 12-month special services and/or programs in accordance with their need to prevent substantial regression, if they are:

(i) students whose management needs are determined to be highly intensive and require a high degree of individualized attention and intervention who are placed in classes in accordance with subparagraph [(g)(4)(ii)] (h)(4)(ii) of this section;

(ii) students with severe multiple disabilities, whose programs consist primarily of habilitation and treatment and are placed in special classes in accordance with subparagraph [(g)(4)(iii)] (h)(4)(iii) of this section;

(iii) . . .

(iv) . . .

(v) . . .

(2) . . .

(3) . . .

[(k)](l) . . .

[(l)](m) Levels of service. (1) The percent of each instructional school day during which a student is provided any one or combination of the special education programs and services shall be in keeping with the unique needs of the student and the standards established in subdivisions (a), (b), (c), (d), (e), (f), (g), (h) [and] ,(i) and (j) of this section.

(2) . . .

(3) . . .

[(m)](n) . . .

9. Paragraph (3) of subdivision (b) of section 200.7 of the Regulations of the Commissioner of Education is amended July 1, 2007, as follows:

(3) [School conduct and discipline] Code of conduct. An approved private school, a State-operated school, and a State-supported school shall develop a [school conduct and discipline] code of conduct policy. 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.

10. Paragraph (2) of subdivision (c) of section 200.8 of the Regulations of the Commissioner of Education is amended July 1, 2007, as follows:

(2) for services provided to a preschool student with a disability on or after September 1, 1989, payment by the county or city for such services shall be paid at least quarterly, pursuant to the provisions of section 4410 of the Education Law, upon vouchers presented by an approved provider which has contracted with the municipality to provide those services. Upon receipt of the form provided by the committee pursuant to section [200.16(c)(7)] 200.16(d)(4) of this Part, the appropriate municipality in which the preschool student resides shall review and, if complete, shall sign the form, and shall send one copy to the department for approval and one to the approved evaluator. A municipality shall not, as a condition of approval of such claims for reimbursement, require any additional information other that the information required to be included on such form. Such vouchers shall be audited in the same manner as other claims against the municipality.

11. Clause (c) of subparagraph (ix) of paragraph (2) of subdivision (f) of section 200.9 of the Regulations of the Commissioner of Education is amended, effective July 1, 2007, as follows:

(c) Rates for the certified special education teacher providing special education itinerant services shall be published as half hour rates and billing by providers to municipalities must be done in half hour blocks of time. Billable time includes time spent providing direct and/or indirect special education itinerant services as defined in section [200.16(h)(3)(ii)] 200.16(i)(3)(ii) of this Part in accordance with the student's individualized education program (IEP). The difference between the total number of hours employed in the special education itinerant teacher's standard work week minus the hours of direct and/or indirect special education itinerant service hours must be spent on required functions. Such functions include but are not limited to: coordination of service when both special education itinerant services and related services are provided to a student pursuant to section 4410(1)(j) of the Education Law; preparation for and attendance at committee on preschool special education meetings; conferencing with the student's parents; classroom observation; and/or travel for the express purpose of such functions as stated above. For the purpose of this subparagraph, parent conferencing may include parent education for the purpose of enabling parents to perform appropriate follow-up activities at home. Billable time shall not be less than 66 percent or more than 72 percent of any special education itinerant teacher's total employment hours. Providers shall maintain adequate records to document direct and/or indirect service hours provided as well as time spent on all other activities related to each student served.

12. Subdivisions (a) and (b) of section 200.13 of the Regulations of the Commissioner of Education are amended, effective July 1, 2007, as follows:

(a) The functioning levels of students with autism, based upon the criteria set forth in section [200.6 (g)(2)] 200.6(h)(2) of this Part, shall govern their individual or small group instruction.

(1) . . .

(2) . . .

(3) The class size for such students shall be determined in accordance with section [200.6 (f) and (g)] 200.6(f) and (h) of this Part, provided that the class size of special classrooms composed entirely of students with autism shall be in accordance with section [200.6 (g)(4)(ii)(a)] 200.6(h)(4)(ii)(a) of this Part.

(4) . . .

(5) . . .

(6) . . .

(b) The length of the school day for students with autism shall be that set forth in section 175.5 of this [Chapter] Title.

13. Subdivision (f) of section 200.14 of the Regulations of the Commissioner of Education is amended, effective July 1, 2007, as follows:

(f) Grouping for instruction. Students with disabilities enrolled in day treatment programs may be grouped for instruction based on similarity of individual mental health needs, when such needs prevent the student from benefiting from instructional groupings pursuant to section [200.6 (g)] 200.6(h) of this Part, as determined by the professional staff of the day treatment program.

14. Subparagraph (iv) of paragraph (1) of subdivision (b) of section 200.16 of the Regulations of the Commissioner of Education is amended, effective July 1, 2007, as follows:

(iv) A committee chairperson who receives a referral shall immediately notify the parent pursuant to paragraphs [(g)] (h) (1) and (2) of this section that a referral has been received and shall request consent for evaluation of the preschool student.

15. Paragraph (3) of subdivision (d) of section 200.16 of the Regulations of the Commissioner of Education is amended, effective July 1, 2007, as follows:

(3) If the parent disagrees with the evaluation, the parent may obtain an independent educational evaluation at public expense in accordance with section 200.5(g) of this Part to the extent authorized by Federal law and regulation.

16. Subparagraph (i) of paragraph (2) and paragraphs (3) and (9) of subdivision (h) of section 200.16 of the Regulations of the Commissioner of Education are amended, effective July 1, 2007, as follows:

(i) include a list containing a description of each preschool program which has been approved by the commissioner to provide evaluations, and is located within the county in which the preschool student resides and adjoining counties, or, for students residing in the City of New York, within the City of New York and adjoining counties, and the procedures which the parent should follow to select [a] an available program to conduct [an] a timely evaluation.

(3) The procedural safeguards notice shall be provided to the parent in accordance with section 200.5(f) of this Part. [In addition to the requirements of section 200.5(f)(4) of this Part, the] The procedural safeguards notice shall also:

(i) . . .

(ii) . . .

(iii) . . .

(iv) . . .

(9) Impartial due process hearings. Impartial due process hearings shall be conducted in accordance with section 200.5 (j) of this Part, provided that the decision of the impartial hearing officer shall be rendered, in accordance with section 4410 of the Education Law, not later than 30 days after [the receipt by the board of a request for a hearing] the time period pursuant to section 200.5(j)(3)(iii) of this Part or after the initiation of such hearing by the board.

17. Subdivision (i) of section 200.16 of the Regulations of the Commissioner of Education is amended, effective July 1, 2007, as follows:

(i) Continuum of services. (1) . . .

(2) . . .

(3) Special education programs and services. Special education programs and services shall be provided as follows:

(i) . . .

(ii) . . .

(iii) Special classes shall be provided on a half-day or full-day basis pursuant to section 200.1(p), (q) and (v) of this part and in accordance with section [200.6 (g)(2) and (3)] 200.6(h)(2) and (3) or section 200.9(f)(2)(x) of this Part and shall assure that:

(a) . . .

(b) the maximum class size shall not exceed 12 preschool students with at least one teacher and one or more supplementary school personnel assigned to each class[; and]. (1) If a committee on preschool special education recommends a preschool student to an approved program which has no space available in the specific special class which will meet the student’s unique needs as recommended on the IEP, the approved program may temporarily increase the enrollment of a class up to a maximum of 13 preschool students for the remainder of the school year, by a procedure to be established by the Commissioner, to ensure that the student receives a free appropriate public education. If the attendance during the instructional time exceeds 12 students, another staff member shall be assigned to the class. Other staff members may include related service providers and/or supplementary school personnel.

(iv) in-state residential special education programs and services shall be provided to each preschool student with a disability for whom such services have been recommended for a minimum of five hours per day, five days per week. Placement in such residential programs shall be approved by the commissioner in accordance with section [200.6 (i)] 200.6(j) of this Part;

(v) . . .

(vi) . . .

(vii) . . .

18. Paragraph (3) of subdivision (b) of Section 200.22 of the Regulations of the Commissioner of Education is amended, effective July 1, 2007, as follows:

(3) Except as provided in subdivision [(f)] (e) of this section, a behavioral intervention plan shall not include the use of aversive interventions.

19. Subdivisions (e), (i), (k) and (n) of Section 201.2 of the Regulations of the Commissioner of Education are amended, effective July 1, 2007, as follows:

(e) Disciplinary change in placement means a suspension or removal from a student's current educational placement that is either:

(1) . . .

(2) for a period of 10 consecutive days or less if the student is subjected to a series of suspensions or removals that constitute a pattern because they cumulate to more than 10 school days in a school year; because the student’s behavior is substantially similar to the student’s behavior in previous incidents that resulted in the series of removals; and because of such additional factors as the length of each suspension or removal, the total amount of time the student [is] has been removed and the proximity of the suspensions or removals to one another. The school district determines on a case-by-case basis whether a pattern of removals constitutes a change of placement. This determination is subject to review through due process and judicial proceedings.

(i) Illegal drug means a controlled substance [other than a substance], but does not include a controlled substance legally possessed or used under the supervision of a licensed health-care professional or a substance that is otherwise legally possessed or used under the authority of the Controlled Substances Act or under any other provision of Federal law.

(k) Interim alternative educational setting or IAES means a temporary educational placement [determined by the committee on special education], other than the student's current placement at the time the behavior precipitating the IAES placement occurred. A student who is placed in an IAES shall:

(1) . . .

(2) . . .

(n) Student presumed to have a disability for discipline purposes means a student who the school district is deemed to have knowledge was a student with a disability before the behavior that precipitated disciplinary action under the criteria in [subsection (k)(8) of section 1415 of title 20 of the United States Code (United States Code, 1994 edition, Supplement III, Volume 2; Superintendent of Documents, U. S. Government Printing Office, Washington, D.C. 20402-9328: 1998 - available at the Office of Vocational and Educational Services for Individuals with Disabilities, Room 1624, One Commerce Plaza, Albany, New York 12234) and the Federal regulations implementing such statute, as set forth in] section [201.5] 201.5(b) of this Part.

20. Section 201.3 of the Regulations of the Commissioner of Education is repealed and a new section 201.3 is added, effective July 1, 2007, as follows:

§201.3 CSE responsibilities for functional behavioral assessments and behavioral intervention plans. If the manifestation team pursuant to section 201.4 of this Part, makes the determination that the conduct subject to the disciplinary action was a manifestation of the student’s disability, the CSE must either:

(a) conduct a functional behavioral assessment, unless the school district had conducted a functional behavioral assessment before the behavior that resulted in the change of placement occurred, and implement a behavioral intervention plan for the student; or

(b) if a behavioral intervention plan has already been developed, review the behavioral intervention plan and modify it as necessary to address the behavior.

21. Subdivisions (d) and (e) of section 201.4 of the Regulations of the Commissioner of Education are amended, effective July 1, 2007, as follows:

(d) Determination. (1) [If the manifestation team determines that] The conduct must be determined to be a manifestation of the student’s disability if the manifestation team determines that a condition in either paragraph (c)(1) or (2) of this section [is applicable for the student, the behavior shall be considered a manifestation of the student's disability] was met.

(2) If the manifestation team determines that the conduct was a manifestation of the student’s disability, the CSE shall:

(i) conduct a functional behavioral assessment and implement a behavioral intervention plan for such student in accordance with section [(3)] 201.3 of this Part; and

(ii) . . .

(e) Deficiencies in IEP [or placement.] If[, in the review of subdivisions (b) and (c) of this section, the school identifies deficiencies in the student’s IEP or placement or in their implementation, it] the manifestation team determines the conduct in question was the direct result of the school district’s failure to implement the IEP, the school district must take immediate steps to remedy those deficiencies.

22. Subdivision (a) and paragraph (3) of subdivision (b) of section 201.5 of the Regulations of the Commissioner of Education are amended, effective July 1, 2007, as follows:

(a) General provision. The parent of a student who has violated any rule or code of conduct of the school district and was not identified as a student with a disability at the time of such behavior may assert any of the protections set forth in [34 C.F.R. Part 300 (Code of Federal Regulations, 1999 edition, Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402-9328: 1999 - available at the Office of Vocational and Educational Services for Individuals with Disabilities, Room 1624, One Commerce Plaza, Albany, NY 12234-9328) or in] this Part, if the school district is deemed to have had knowledge as determined in accordance with subdivision (b) of this section, that the student was a student with a disability before the behavior that precipitated the disciplinary action occurred. Where the school district is deemed to have had knowledge that the student was a student with a disability before such behavior occurred, such student is a "student presumed to have a disability for discipline purposes."

(3) a teacher of the student, or other personnel of the school district, has expressed specific concerns about a pattern of behavior demonstrated by the student, directly to the director of special education of the school district or to other supervisory personnel of the school district [in accordance with the district's established child find or special education referral system].

23. Subdivision (b) of section 201.6 of the Regulations of the Commissioner of Education is amended, effective July 1, 2007, as follows:

(b) An expedited evaluation shall be completed no later than 15 school days after receipt of [the request] parent consent for evaluation, and shall be conducted in accordance with the procedural requirements of sections 200.4 and 200.5 of this Title. The CSE shall make a determination of eligibility of such student in a meeting held no later than five school days after completion of the expedited evaluation.

24. Subparagraph (i) of paragraph (1) of subdivision (e) and subdivision (f) of section 201.7 of the Regulations of the Commissioner of Education are amended, effective July 1, 2007, as follows:

(i) has inflicted serious bodily injury, as defined in section [201.1(m)] 201.2(m) of this Part, upon another person while at school, on school premises or at a school function under the jurisdiction of the educational agency;

(f) School personnel may consider any unique circumstances on a case-by-case basis when determining whether [to order] a change in placement [under] consistent with the other requirements of this Part is appropriate for a student with a disability who violates a school district’s code of [student] conduct.

25. Section 201.8 of the Regulations of the Commissioner of Education is amended, effective July 1, 2007, as follows:

§201.8 Authority of impartial hearing officer to order a change in placement to an IAES in a dangerous situation.

(a) An impartial hearing officer appointed pursuant to Education Law section 4404(1), in an expedited due process hearing conducted pursuant to section 201.11 of this Part, may order a change in placement of a student with a disability to an appropriate interim alternative educational setting (IAES) for not more than 45 school days, if the hearing officer determines that maintaining the current placement of the student is substantially likely to result in injury to the student or others.[:

(1) determines that the school district has demonstrated by substantial evidence that maintaining the current placement of the student is substantially likely to result in injury to the student or to others;

(2) considers the appropriateness of student's current placement;

(3) considers whether the school district has made reasonable efforts to minimize the risk of harm in the student's current placement, including the use of supplementary aids and services; and

(4) determines that the IAES proposed by school personnel meets the requirements of 34 C.F.R. section 300.522(b) (Code of Federal Regulations, 1999 edition, Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402-9328: 1999 - available at the Office of Vocational and Educational Services for Individuals with Disabilities, Room 1624, One Commerce Plaza, Albany, NY 12234) as set forth in section 201.2(k) of this Part.

(b) For purposes of this section, "substantial evidence" shall mean beyond a preponderance of the evidence.

[(d)](b) The procedures established in this section may be repeated[, as necessary] if the school district believes that returning the student to the original placement is substantially likely to result in injury to the student or others.

[(e)](c) . . .

[(f)](d) . . .

26. Paragraph (2) of subdivision (c) of section 201.9 of the Regulations of the Commissioner of Education is amended, effective July 1, 2007, as follows:

(2) Upon a determination by the manifestation team that the behavior of a student with a disability was not a manifestation of the student's disability, such student may be disciplined in the same manner as a nondisabled student, except that such student shall continue to receive services in accordance with [this] section 201.10 of this Part. Upon receipt of notice of such determination, the superintendent or hearing officer in the superintendent’s hearing shall proceed with the penalty phase of the hearing. If the manifestation team determines that the behavior was a manifestation of the student's disability, the superintendent or hearing officer in the superintendent’s hearing shall dismiss the superintendent's hearing, except as otherwise provided in paragraph (3) of this subdivision.

27. Subdivision (e) of section 201.10 of the Regulations of the Commissioner of Education is repealed, effective July 1, 2007, and subdivisions (a), (c) and (d) of section 201.10 of the Regulations of the Commissioner of Education are amended, effective July 1, 2007, as follows:

(a) During any period of suspension, a student with a disability shall be provided services to the extent required under [the provisions of the Individuals with Disabilities Education Act (20 U.S.C. sections 1400 et seq.), 34 C.F.R. section 300.121 (United States Code, 1994 edition, supplement III, volume 2, 1998; Code of Federal Regulations, 1999 edition; Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402-9328: 1999 - available at the Office of Vocational and Educational Services for Individuals with Disabilities, Room 1624, One Commerce Plaza, Albany, NY 12234)] this section and paragraph (e) of subdivision 3 of section 3214 of the Education Law. Nothing in this section shall be construed to confer a greater right to services than is required under Education Law, section 3214(3)(e) and [such] Federal law and regulations.

(c) During subsequent suspensions or removals for periods of 10 consecutive school days or less that in the aggregate total more than 10 school days in a school year but do not constitute a disciplinary change in placement, regardless of the manifestation determination, students with disabilities shall be provided with services necessary to enable the student to continue to participate in the general education curriculum and to progress toward meeting the goals set out in the student's IEP and to receive, as appropriate, a functional behavioral assessment, behavioral intervention services and modifications that are designed to address the behavior violation so it does not recur. [The CSE shall determine the services to be provided to the student.] School personnel, in consultation with at least one of the student’s teachers, shall determine the extent to which services are needed, so as to enable the student to continue to participate in the general education curriculum, although in another setting, and to progress in meeting the goals set out in the student’s IEP.

(d) During suspensions or other disciplinary removals, including suspensions or removals pursuant to section 201.7(e) of this Part, for periods in excess of 10 school days in a school year which constitute a disciplinary change in placement [for behavior], regardless of the manifestation determination, students with disabilities shall be provided with services[, as determined by the CSE,] necessary to enable the student to continue to participate in the general education curriculum, to progress toward meeting the goals set out in the student's IEP, and to receive, as appropriate pursuant to section 201.3 of this Part, a functional behavioral assessment, behavioral intervention services and modifications that are designed to address the behavior violation so it does not recur. The IAES and services shall be determined by the CSE.

28. Section 201.11 of the Regulations of the Commissioner of Education is amended, effective July 1, 2007, as follows:

§201.11 Expedited due process hearings.

(a) An expedited due process hearing shall be conducted pursuant to this Part under the following circumstances:

(1) . . .

(2) . . .

(3) the parent requests a hearing from a determination that the student's behavior was not a manifestation of the student's disability. [In reviewing a decision with respect to the manifestation determination, the hearing officer shall determine whether the school district has demonstrated that the student's behavior was not a manifestation of the student's disability consistent with the requirements of section 201.4 of this Part]; or

(4) The parent requests a hearing relating to any decision regarding placement under [34 C.F.R. sections 300.520-528 or] section 201.7 of this Part, including but not limited to any decision to place the student in an IAES.

(b) An expedited due process hearing shall be conducted in accordance with the procedures specified in section 200.5(j) of this [Part] Title, except as follows:

[(1) Any party to the hearing shall have the right to prohibit the introduction of any evidence at the hearing that has not been disclosed to that party at least three business days before the hearing.

(2) At least three business days prior to the hearing, each party shall disclose to all other parties all evaluations completed as of that date and recommendations based on the offering party's evaluations that the party intends to use at the hearing.

(c) An expedited due process hearing shall be completed within 15 business days of receipt of the request for a hearing, provided that the impartial hearing officer may grant specific extensions of such time period at the request of either the school district or the parent. The impartial hearing officer shall mail a copy of written, or at the option of the parents, electronic findings of fact and the decision to the parents, to the board of education and to the Office of Vocational and Educational Services for Individuals with Disabilities (VESID) of the State Education Department within five business days after the last hearing date, but in no event later than 45 calendar days after receipt of the request for a hearing, without exceptions or extensions.]

(1) Upon receipt of or filing of a due process complaint notice for an expedited hearing, the board of education shall arrange for an impartial hearing and the appointment of an impartial hearing officer using the list in accordance with the rotational selection process established in section 200.2(e)(l) of this Title and the administrative procedures established by the board of education pursuant to section 200.2(b)(9) of this Title.

(2) The impartial officer may not accept appointment unless available to hold the hearing and render the decision within the time period for expedited hearings pursuant to paragraph (3) of this subdivision.

(3) The school district shall arrange the expedited due process hearing according to the following time period, unless the parent and school district agree in writing to waive the resolution meeting or agree to use mediation:

(i) A resolution meeting shall occur within seven days of receiving notice of the due process complaint.

(ii) The expedited due process hearing may proceed unless the matter has been resolved to the satisfaction of both parties within 15 days of receipt of the due process complaint.

(iii) The expedited due process hearing shall occur within 20 school days of the date the complaint requesting the hearing is filed.

(iv) The impartial hearing officer shall make a determination within 10 school days after the hearing.

(4) No extension to an expedited impartial hearing timeline may be granted.

(5) The impartial hearing officer shall mail a copy of the written, or at the option of the parents, electronic findings of fact and the decision to the parents, to the board of education and to the Office of Vocational and Educational Services for Individuals with Disabilities Education (VESID) of the New York State Education Department within 10 school days after the hearing.

[(d)](c) . . .

[(e) If a student is placed in an IAES under the circumstances described in this subdivision, and school personnel propose to change the student's placement after expiration of the IAES, during the pendency of any proceeding to challenge the proposed change in placement, the student shall remain in his or her current educational placement (the placement prior to removal to the IAES), except where the student is again placed in an IAES by an impartial hearing officer pursuant to section 201.8 of this Part in an expedited due process hearing where the school district maintains that it is dangerous for the student to remain in his or her current educational placement.]

(d) When an expedited due process hearing has been requested because of a disciplinary change in placement, the manifestation determination or because the school district believes that maintaining the student in the current placement is likely to result in injury to the student or others, the student shall remain in the IAES pending the decision of the impartial hearing officer or until the expiration of the period of removal, whichever occurs first, unless the parent and the school district agree otherwise.

ASSESSMENT OF PUBLIC COMMENT

Since publication of a Notice of Proposed Rule Making in the State Register on March 21, 2007, the State Education Department received the following comments on the proposed amendments. Other comments received did not relate specifically to the proposed rule and are not included in the Assessment of Public Comment.

Section 100.2(ii) – Response to Intervention (RTI) Programs

COMMENT:

RTI should be in regulation as a pre-referral general education program; included only for use in the identification of students with learning disabilities (LD); required for all districts; only defined as an “early intervening services” to the extent scientifically based research options are available. Replace “frequent screenings and repeated assessments” with "benchmark assessments and progress monitoring;” delete the requirement for research based instruction for all students in the class by qualified personnel; allow scientific research based intervention criteria and “satisfactory progress” to be defined at the local level; specify the amount or nature of student performance data required; define research based reading to include the essential components of reading; identify age-appropriate research based interventions based on the student’s learning needs and acceptable practices to implementation of RTI; define "qualified personnel;" require staff to be appropriately trained to implement RTI; require interventions valid for the age and population, delivered and monitored by trained and knowledgeable school personnel, targeted to student’s identified needs, delivered in or out of the classroom either individually or in small groups, effectively measured based on predetermined criterion and timeframe for determining non-responsiveness, implemented with fidelity to the research in which it is derived; student responsiveness to such instruction and/or interventions to be measured and monitored at regular intervals; involvement of school psychologists in the determination, implementation and progress monitoring of effective instructional programs; districts to notify the Department and parents of students in the general education classroom of the specific RTI components and criteria and specifics of the parent-teacher communication to review progress data. Specify when students must be referred for an evaluation for special education. Require scientific reading programs in the mandatory kindergarten screening requirements; and use of curriculum-based assessment prior to referral for a LD determination.

DEPARTMENT RESPONSE:

The proposed regulation was revised to provide further specificity to the minimum requirements for RTI; define research based instruction in reading; require the district to identify the RTI criteria and process for levels of intervention and progress monitoring; and require schools to ensure staff have knowledge and skills to implement RTI with consistency and fidelity.

Section 200.1 - Definitions

COMMENT:

In the definition of parent, delete the phrase “legally appointed;” do not require family members to be formally designated under General Obligations Law; allow foster parents to serve as the parent; delete the exception that prohibits the State from acting as the parent when a student is a ward of the State.

DEPARTMENT RESPONSE:

The definition of parent, as written, is consistent with State and federal law. The proposed rule has been revised to add punctuation to clarify the definition of parent.

COMMENT:

Clarify the terms “group or individualized” as they apply to consultant teacher.

DEPARTMENT RESPONSE:

Section 200.1(ww)(3)(ii) defines group instruction to mean instruction of students grouped together according to similarity of individual needs for the purpose of special education and requires the curriculum and instruction provided to such groups to be consistent with the individual needs of each student in the group. The term individualized instruction means specially designed instruction provided to a student on an individualized basis.

COMMENT:

Add “school nursing services” to the definition of related service.

DEPARTMENT RESPONSE:

The definition of school health services has been revised to replace the term nursing services with school nurse services.

COMMENT:

Proposed regulations clarify that supplementary aids and services must be provided in extracurricular and nonacademic settings.

DEPARTMENT RESPONSE:

The comment is supportive in nature and no response is necessary.

Section 200.2(b)(1) - Board of Education (BOE) Responsibilities

COMMENT:

Clarify whether students with disabilities who reside in the school district must be enrolled in the public school in order to have access to extracurricular activities in that school district.

DEPARTMENT RESPONSE:

Consistent with section 414(2) of Education Law, districts must ensure that the students placed by CSEs in, for example, Board of Cooperative Educational Services (BOCES) or private school programs have the opportunity to participate in school district programs, to the maximum extent appropriate to the needs of the student.

Section 200.2(b)(15) - Disproportionality

COMMENT:

The proposed regulation in section 200.2(b)(15) may make it a harder for an eligible student to receive special education services based on the student’s minority status; and is likely to promote improvement in data collection to examine disproportionality and overrepresentation in special education by race/ethnicity.

DEPARTMENT RESPONSE:

This regulation is necessary to comply with 34 CFR section 300.646(b).

Section 200.4(b)- Individual evaluation

COMMENT:

Define the terms “assessments” and “tests.” Clarify the local educational agency’s (LEA) responsibility to provide services when a parent refuses consent for a reevaluation. Retain language in section 200.4(b)(6)(ii) that requires the evaluation report to describe the extent to which an assessment varied from standard conditions.

DEPARTMENT RESPONSE:

It is not necessary to define the terms "assessment" and "tests" in regulation as such terms are generally known to professionals. A test is an evaluative device or procedure and an assessment is the process of gathering data to evaluate an individual. The school district continues to be responsible for the provision of special education services if a parent refuses consent for a reevaluation, but may, except for parentally-placed and home schooled students, pursue due process to override the parent’s refusal. The proposed rule has been revised to retain section 200.4(b)(6)(ii) since it is standard practice for evaluators to describe the extent to which a test administration varies from standard conditions.

Section 200.4(d) - Recommendation

COMMENT:

Supports regulations that ensure appropriate math and reading instruction. Clarify documentation necessary for the CSE to ensure appropriateness of reading and math instruction and consideration of other resources of the regular education program; clarify if the proposed change from "regular program" to “regular class” means a school is not required to provide the reason students are not participating in general education study halls or lunch. Allow CSE members to have their opinions officially noted in the meeting minutes. Require that English as a second language (ESL) teachers be invited to CSE meetings as persons having special knowledge or expertise regarding the student.

DEPARTMENT RESPONSE:

No response is necessary to the first comment as it is supportive in nature. Proposed section 200.4(j) specifies the required data documentation to ensure the appropriateness of reading and math instruction. The proposed change from regular program to regular class means a school must document reasons students are not participating in regular education academic and nonacademic classes. CSE meeting notes are recommended, but not required. Prior written notice requires specific documentation to the parent when the CSE recommends or refuses to recommend a program or service. Therefore, it is not necessary or appropriate to require each CSE members’ opinions be documented in CSE meeting notes. We decline to require that English as a second language (ESL) teachers be invited to CSE meetings as persons having special knowledge or expertise regarding the student, since federal law and regulations place the responsibility on the school district and parent to determine if an individual has special knowledge or expertise regarding a student and should be invited to the CSE meeting.

Section 200.4(d)(4)(i)(c) – Transition meetings

COMMENT:

Clarify when a vocational rehabilitation (VR) representative must be invited to transition planning meetings. Require transition planning to begin at age 14.

DEPARTMENT RESPONSE:

The determination as to when a representative from a participating agency, such as VR services, is invited to a CSE meeting must be made on an individual student basis. State law requires transition planning to begin at age 15, or younger if appropriate.

Section 200.4(e)(1) - 60-day timeline

COMMENT:

Clarify the timelines for the BOE to arrange for special education services upon referral for review.

DEPARTMENT RESPONSE:

The Department will consider this comment for future rule making.

Section 200.4(j) - Additional Procedures for Identifying Students with LD

COMMENT:

Proposed section 200.4(j) is confusing as written. Remove language “unless extended by mutual written agreement of the student’s parents and the CSE” since once a student is referred for an evaluation and parental consent is obtained, a district should not delay evaluating a student for any reason. Clarify the time period for scientific, research based intervention to be provided prior to referral. The criteria for determination of LD should not rely solely on a student's response to intervention in general education. Add that school districts submit quarterly reports to the Department on initial referrals. Students should not be judged ineligible for special education if they function well on standardized reading tests that do not match the type or difficulty of assignments in grade level classrooms. Clarify that it is the data from a pre-referral RTI process and not the utilization of the RTI process itself that can be considered as a component of a comprehensive evaluation. RTI should not be used as a diagnostic tool but as a way to identify students who should be evaluated for LD and to increase literacy skills in general education classrooms. Delete proposed sections 200.4(3)(i) and 200.4(j)(4)(i)(b)(1). RTI has not yet been shown effective in math, writing and other domains and in the upper grade levels. The determination of LD criteria should reference section 200.4(b)(6)(viii), which requires an evaluation be sufficiently comprehensive to identify all of a student’s special education needs. Clarify whether the district must use only one process to determine whether a student has LD and that a full comprehensive evaluation must be used. Prohibit the ability achievement model. Require evaluation of cognitive factors and that technically sound instruments be used in the process of the identification of LD. Delete authority to use alternative research based procedures. Add specific criteria to assist school districts in determining LD. Do not set a sunset date on the use of the discrepancy model for grades K to four. Extend the date to provide sufficient time for school districts to implement RTI programs. Require use of RTI only for reading. In section 200.4(j)(3)(iii), change grade four to grade one. Change the group that makes the eligibility determination from the CSE to be consistent with the federally mandated group. Do not allow excusals from the CSE when eligibility determinations are being made. Add that “the child’s parents” must be part of the CSE in section 200.4(j)(4)(i). Retain the proposed regulations relating to documentation requirements for LD determinations; require that each person register his or her assent or disagreement with the CSE’s determination for all categories of disability determinations. The lack of qualified teachers in reading or math should not delay a student's eligibility determination for special education.

DEPARTMENT RESPONSE:

Substantial changes have been made to sections 200.4(a) (referrals), 200.4(b) (timelines for the evaluation) and 200.4(j) (LD procedures) to simplify and clarify the proposed procedures for LD identification; to delete the alternative research based criteria; and to prohibit, effective July 1, 2012, the use of discrepancy criteria for LD determinations in the area of reading for students in grades K to four. The proposed documentation requirements of the LD eligibility determination have been retained consistent with federal requirements. It is not necessary to clarify that the parent is a member of the group that makes an LD eligibility determination since proposed regulations require the CSE make this determination and the parent is a member of the CSE.

Sections 200.4(d) and 200.5(a) and (c) – Required Forms

COMMENT:

Retain proposed requirement for State forms for IEPs, prior written notice and CSE meeting notice to ensure consistency across the State. Teachers should be involved in the development of a mandated IEP form and draft forms should be subject to public comment. Provide sample, but not mandated forms. Give districts the flexibility to develop or amend notices that will meet their requirements, as long as they meet the notice requirements of IDEA.

DEPARTMENT RESPONSE:

The proposed amendments to require use of State developed IEP, prior written notice and meeting notice forms have been revised to change the effective date to January 1, 2009 to ensure an appropriate period of public comment and conversion time.

Section 200.5(a) – Prior Written Notice

COMMENT:

Retain the word “any” in section 200.5(a)(3)(iii) to clarify that the CSE should describe all options considered in the prior written notice.

DEPARTMENT RESPONSE:

The proposed language is consistent with federal requirements.

Section 200.5(b) - Parent Consent

COMMENT:

Require consent forms be mailed to parents within 10 days or within a reasonable timeframe or in a timely manner. Allow districts to proceed with an evaluation when all reasonable efforts to gain consent from the parent have failed. Require consent prior to each time the school district proposes to access a parent’s private insurance proceeds, and prior to each time the school district proposes to access public benefits or insurance; and clarify that privacy rights must be protected by the district obtaining such consent. Add a clear warning to parents, in either the procedural safeguards notice (PSN) or in a separate written notice that a school district is not required to use due process procedures when a parent of a parentally placed student refuses consent for an initial evaluation, a reevaluation or services.

DEPARTMENT RESPONSE:

Changes have been made to the proposed rule to require the district to document specific steps to obtain parent consent and clarify when consent for use of public and private insurance is required. The PSN will include language consistent with federal and State requirements relating to consent for parentally placed students.

Section 200.5(f) - Procedural Safeguard Notice (PSN)

COMMENT:

Retain the original language in section 200.5(f)(4). Require districts to document that the PSN was provided to, received by and explained to the parents in their native language or preferred mode of communication. Clarify that placing a current copy of the PSN on a district’s Internet website does not absolve a school district from its responsibility to document that the notice was received and understood by the parent. Require the PSN be developed by a collaborative effort of parents, advocates and attorneys. Limit the requirement to provide the notice to those required by federal law. Add to the PSN that resolution sessions are mandatory, and identify the potential consequences for failing to appear at the resolution session. Add that the PSN must specify any deadlines imposed by State law for parents to notify districts of requests for services for children placed at parental expense in private schools.

DEPARTMENT RESPONSE:

The deleted language is not necessary since section 200.5(f)(1) requires that a school district use the PSN prescribed by the Commissioner that will meet the requirements of 34 CFR section 300.504(c). The Department will clarify in guidance that posting the PSN on a public agency’s web site is clearly optional and for the convenience of the public and does not replace the distribution requirements in the Act. The Department will adopt the federal PSN with modifications specific to NYS rules. It is not necessary to regulate that the PSN be developed in collaboration with parents, advocates and attorneys. The Department will provide guidance relating to students with disabilities parentally placed in private schools, including required timelines.

Section 200.5(g) - Independent Educational Evaluation (IEE)

COMMENT:

Clarify whether any substantive change is intended by replacing the term “independent evaluation” with IEE. Revise the definition of independent evaluation to be consistent with this change. Clarify that the parent is entitled to one evaluation of the same type (e.g., speech therapy) that they disagree with; revise section 200.5(g)(vi) to indicate that the CSE must consider the results of the IEE. Allow independent evaluators to observe the student in the educational environment. Delete the requirement that the IEE must be considered by school districts if it meets the schools district’s criteria for IEEs. Entitle a parent to an IEE at public expense “each time the school district does not timely evaluate the student.” Clarify that although a parent may share the results of an evaluation obtained at private expense with the LEA, the parent has no obligation to do so.

DEPARTMENT RESPONSE:

For consistency, section 200.16(d)(3) has been revised to use the term IEE. The regulation relating to IEEs and school district criteria is consistent with the federal right to IEEs. We decline to add the requirement that an independent evaluator be allowed to observe a student in his or her educational environment as this decision must be made at the local level in consideration of a school’s policy and procedures to ensure the safety of students and to ensure that education in the classroom is not disrupted. Proposed language is consistent with the federal regulations and with guidance provided through the comments section of federal regulations (page 46690) which clarifies that if a parent obtains an evaluation at private expense, there is nothing that requires a parent to share that evaluation with the public agency.

Section 200.5(h) – Mediation

COMMENT:

Maintain current language in section 200.5(h)(1)(ii).

DEPARTMENT RESPONSE:

Comment addresses an error in an unofficial draft document posted on the Department’s website and does not reflect the language of the proposed rule.

200.5(i)(3) - Due process complaint notice

COMMENT:

The proposed language that “except for expedited hearings, the sufficiency of a due process complaint cannot be challenged” is incorrect.

DEPARTMENT RESPONSE:

Section 200.5(j)(3) has been revised to clarify that no party may challenge the sufficiency of a due process complaint using this procedure for expedited impartial hearings conducted pursuant to section 201.11 of the Regulations.

200.5(j) - Impartial hearings

COMMENT:

Require districts to include a written notice, in parent friendly language, of the potential consequences of failing to attend the resolution session with the notice of the session or upon receipt of the complaint. Clarify hearing timelines. Require school districts to convene a resolution session when they are the party initiating the hearing. Require the impartial hearing to begin immediately, without requiring the parent to seek initiation through the impartial hearing officer (IHO) when the district fails to participate in the resolution session. Require documentation of effort when persuading a parent to participate in a resolution session and define “reasonable and documented efforts” consistent with 34 CFR section 300.510(b)(4). Require resolution sessions be set at a mutually agreeable time. Do not require a delay in the hearing if a parent refuses a resolution session. Require a resolution agreement to be in writing. Delete the language “or prehearing conference” throughout section 200.5(j)(3)(iii) since impartial hearing timelines should not be delayed by any prehearing conferences.

DEPARTMENT RESPONSE:

Section 200.5(i) has been revised to add steps the district must take to ensure parents participate in the resolution meeting. The PSN will notify parents of resolution session requirements. Federal regulations do not require a resolution session for a district initiated hearing, since the district would have had the opportunity to reach a resolution with the parent prior to initiating the hearing. Current regulations require that an agreement reached during the resolution process be in writing. Since many impartial hearings begin with a prehearing conference, we decline to make a change to address the last comment.

COMMENT:

Revise the regulation that an IHO not accept an appointment unless available to initiate the hearing within 14 days of the time in section 200.5(j)(3)(iii)(a)-(c) as an IHO cannot know when the 14 day periods ends in advance of accepting the appointment. The timelines for initiation of a hearing should be the same whether a parent or district requests the hearing. Delete section §200.5(j)(2)(vi)(1). Clarify the timeline for issuing a decision clearly begins at the expiration of the 30-day resolution period. Either have IHOs responsible for their own data entry or develop a process that allows either party to file a State complaint against an IHO who improperly delays the resolution of a hearing.

DEPARTMENT RESPONSE:

The proposed regulations prescribe procedures to ensure hearing timelines are consistent with federal requirements. Section 200.5(j)(3)(xvi) requires each BOE to report information relating to the impartial hearing process. Since this information is used to monitor IHO compliance with timelines, it would not be appropriate for IHOs to enter this data.

COMMENT:

Comments of support were received to retain the proposed language regarding settlement agreements. However, some expressed concern that the proposal may violate IDEA 2004; may affect the recovery of attorneys' fees and the ability for parents, particularly low-income parents, to find and retain attorneys; and may make it less likely that school districts will comply with settlement agreements. A comment suggested clarifying that when partial agreement is reached in the form of agreement on any one or more issues among those raised, the regulation would not require the hearing to be closed and presumably the process to start over before a new IHO with respect to outstanding issues. Some stated that the proposed amendment appears to interfere with the independence of the IHO and with a parent’s ability to demonstrate exhaustion of administrative remedies with regard to all or part of a claim.

DEPARTMENT RESPONSE:

The Department strongly disagrees that the proposed language violates the IDEA or interferes with the independence of the IHO. The purpose of the regulation is to improve the effectiveness of the impartial hearing system. The proposed regulation, which would align New York with other States in regulating this practice, clarifies consistent with section 200.5(j) of the Commissioner’s Regulations that a decision of an IHO must be based solely upon the record of the proceeding before the IHO and must set forth the reasons and the factual basis for the determination. The decision must reference the hearing record to support the findings of fact and, consistent with new federal regulations, an IHO’s determination of whether a student receives a free appropriate public education must be based on substantive grounds. Parties are encouraged to settle all issues in dispute, which may include attorney fees, and the proposed regulation poses no impediment in doing so. If an agreement is not reached on an issue, the parent or district has the right to proceed with the impartial hearing. An IHO must issue a decision on any issues in the complaint that have not been resolved in the settlement agreement and are within the IHO’s jurisdiction and must do so based on the record of the proceeding. To ensure clarity, however, the proposed regulation has been revised to state that a settlement agreement shall not constitute a final decision, prescription or order of the IHO; that the settlement agreement may be read into the record as an agreement between the parties only; and that such agreement shall be enforceable in any State court of competent jurisdiction or in a district court of the United States.

COMMENT:

Delete the proposed rule that would allow only one 30-day extension at a time.

DEPARTMENT RESPONSE:

The State must establish procedures to ensure impartial hearings are completed within the required timelines; however, the proposed regulation has been revised to clarify that no more than one extension may be granted at a time.

Section 200.5(l)(i) - State Complaints

COMMENT:

Retain current regulation relating to the timeline for filing a State complaint.

DEPARTMENT RESPONSE:

The exceptions to the State complaint timelines for continuing violations and for compensatory services were removed in order to be consistent with revisions to the federal regulations. Limiting a complaint to a violation that occurred not more than one year prior to the date that the complaint is received will help ensure that problems are raised and addressed promptly. Longer time periods are generally not beneficial to the student because the issues in a State complaint become so stale that they are unlikely to be resolved. The proposed change will help to ensure timely resolution for schools, families and students and that alleged violations are resolved within one year so that resulting changes needed to assure that students receive a free appropriate public education are made in time to benefit the student.

Section 200.5(n) – Surrogate Parents

COMMENT:

Clarify that the rights of a parent may either be subrogated or temporarily suspended by a judge and that a surrogate parent should only be appointed when no one else is available to serve as the child's parent. Delete from section 200.5(n)(2) “A school district may select as a surrogate a person who is an employee of a nonpublic agency that only provides noneducational care for the student and who meets the standards in this paragraph” since the distinction between public agencies and nonpublic agencies who provide only non-educational care has been eliminated from the federal regulation 34 CFR section 300.519(d)(2)(i). Require the appointment of a surrogate parent not later than 30 days after the determination that a child needs a surrogate parent. Add that surrogate parents' responsibilities include meeting with the child; participating in conferences and meetings related to the implementation of IDEA for the child; and reviewing the child’s education record.” to provide more helpful guidance to surrogate parents”. Repeal that foster parents must be appointed as surrogate parents, since foster parents are included in the definition of parent. Clarify that the judicial appointment of a surrogate parent only applies to wards of the State. In section 200.5(n)(3)(vii), change “without regard to paragraph (2) of this section” to “without regard to subparagraph (2)(i) of this section” since staff of emergency shelters and street outreach programs may serve as a student’s temporary surrogate parent but must still meet the other surrogate parent qualifications. Clarify that a student who is a ward of the State only needs a surrogate parent if the parental rights of a parent have been terminated and no one else is available to serve as the child’s parent.

DEPARTMENT RESPONSE:

No changes have been made to section 200.5(n) since an individual’s acceptance as a surrogate parent appointment would require the parent to conduct the functions described in the comment. Current regulations require appointment of a surrogate parent within 10 business days of the determination that the student needs a surrogate, which is shorter than the federally required 30 days. The definition of parent addresses when a foster parent may be the parent. The proposed regulations do not require foster parents who are otherwise qualified to be appointed from a list approved by the BOE. We do not have the authority to make further revisions relating to this issue until changes to the Family Court Act have been enacted.

Section 200.6 Continuum of Services

COMMENT:

Support flexibility for resource room and CT services. Allow for less than three hours of weekly services for those children whose schedule is already filled with multiple direct services and who require less intensive support and disruption to their program. Repeal all minimum levels of service requirements. Add that the flexibility applies to both direct and indirect CT. Retain the current minimum levels of service delivery for both CT and resource room. Require the CSE to determine the time required for each specific service and to reflect this on the IEP. Establish specific criteria for the amount of service a student needs. Clarify that the total number of students assigned to a teacher must not exceed the teacher’s capacity to provide the required level of service as documented in the IEPs of all students assigned to the teacher. Clarify what is meant by “supplementing regular or special classroom instruction” in resource room programs.

DEPARTMENT RESPONSE:

The proposed regulation has been revised to allow the combined services of direct and/or indirect consultant teachers services and resource room services for not less than three hours per week. Current regulations require that the IEP specify the frequency, location and duration for each special education program or service. We decline to establish specific criteria for the amount of service a student needs as decisions regarding the needs of a student are to be made by the CSE. Current regulations include caseload requirements for CT and resource room teachers, therefore no further changes are necessary. It is not necessary to add to regulation a clarification of the term supplementing, since it is means in addition to, and not in place of, regular or special classroom instruction.

COMMENT:

Regulations should encourage innovative programs; separate State funding from service delivery. Require curriculum in special classes be aligned with the general education curriculum. Repeal instructional group size limitations and minimum level of services for speech and language, including the requirement for children with autism. The proposed co-teaching service is appropriate as written. To the extent that the regulation can be interpreted to limit the number of children with disabilities in a regular education classroom, the regulation is discriminatory. There is no authority under the law to restrict disabled students from being in a regular education class due to quota or limit. Limit the ratio of students in integrated co-teaching classes to no more than one third special education to two-thirds general education students. Adding co-teaching will provide an incentive to districts to add this service and provide consistency in this service model across the State. Do not limit the number of students to a class, but rather establish a limit to the number of students assigned to each special education teacher. Clarify if one third of the class size refers only to students with co-teaching on their IEP or to all students with an IEP enrolled in the class. Revise the co-teaching class size to read "12 students or one third of the class, whichever is less.” The arbitrary “cap” on the number of students with disabilities in integrated co-teaching classes would be unfair to smaller rural school districts that have limited resources and are attempting to educate the majority of students in a general education setting with appropriate supports of a special education teacher and an aide connected to the program. Adopting the co-teaching class size effective this year would require revisions to IEPs developed for the 2007-08 school year. Consider the fiscal and contractual limitations of districts to implement this proposed amendment. Revise the class size ratio to a maximum of 40 percent students with disabilities. Allow a 50 percent ratio between students with disabilities and general education students as is allowed for preschool. Add that the IEP must specify the subjects in which the student needs the service to benefit from instruction, including non-core academic subjects. Require schools to arrange for coverage of teachers during preparation periods and absences. Require that an integrated co-teaching class not be considered an appropriate service for a student whose needs, even with support, significantly impact the learning environment in the classroom. Require that decisions to recommend integrated co-teaching be based on the student’s individual needs not on administrative convenience. By limiting the use of teaching assistants, districts will be unable to meet requirement for staffing. Retain the proposed language that teaching assistants may not serve as the special education teacher in a co-teaching class. Add a new designation on the continuum of services called an “inclusion class with consultant teacher” to be more in line with present practice and to be more descriptive. Clarify whether a teaching assistant, under the direct supervision of a certified special education teacher, could be the “special education teacher” in an integrated co-teaching services class and whether a teaching assistant can be a provider of consultant teacher services. Include a description regarding functional grouping and what types of disabilities are to be addressed in this classroom. Require that students with disabilities recommended for co-teaching be grouped according to similarity of needs. Require that general education students in the integrated co-teaching class reflect the performance range of general education students in their grade.

DEPARTMENT RESPONSE:

The proposed regulations do not address State aid for special education services, but rather establish a minimum level of service delivery. Consistent with section 200.4(d), the IEP must indicate the recommended special education programs and services that will be provided for the student to be involved and progress in the general education curriculum. We decline to repeal instructional group size limitations and all minimum level of service requirements. The proposed regulation has been revised to delay the implementation of the 12 student limit until July 1, 2008 and to eliminate the proposed one-third ratio of students with disabilities to nondisabled students. It is expected that the IEP would, for middle and high school students, specify the location of co-teaching services by specifying the specific subject area class(es) where co-teaching would be provided. Current regulations require grouping according to similarity of needs, so no further change is necessary. Proposed regulations make it clear that a teaching assistant under the general supervision of a special education teacher may not be the teacher in a co-teaching integrated class. CT services must be provided by individuals appropriately certified or licensed. We decline changing the program to “inclusion class with consultant teacher” as an integrated co-teaching model is not the same as CT services. It is not appropriate to regulate the performance range of general education students in the integrated co-teaching class and such a change is beyond the scope of this rulemaking.

Section 200.16(i)(3)(iii)(b)(1) - Preschool Variances

COMMENT:

Do not limit the variance to exceed 12 preschool students in a class to New York City. Clarify the qualifications of additional staff members to be in assigned to a preschool class when attendance during instructional time exceeds 12 students. Clarify how this variance relates to the waiver provisions in section 200.16(i)(3)(vi).

DEPARTMENT RESPONSE:

The proposed regulation has been revised to provide this variance statewide. The propose regulations provide that other staff members may include related service providers and/or supplementary school personnel and further changes are not necessary. The variance procedure does not reference section 200.16(i)(3)(vi) as another variance procedure will be developed by the Department.

Section 201.3 – CSE Responsibilities for Functional Behavioral Assessments (FBA) and Behavioral Intervention Plans (BIP)

COMMENT:

Add that an FBA must also be conducted whenever a student’s behavior impedes his or her learning or that of others, consistent with section 200.4 even where the behavior is not a manifestation of the student’s disability. Prohibit schools for suspending students with mental illness.

DEPARTMENT RESPONSE:

It is not necessary to make a change to require an FBA for other reasons since Part 201 only addresses requirements relating to disciplinary actions. Sections 200.4 and 200.22 establish general requirements for behavioral interventions, including FBAs. It is not appropriate for the Department to establish any limitation on suspensions based on a medical diagnosis.

Section 201.4 - Manifestation Determination Review

COMMENT:

Clarify that students with disabilities who through a manifestation hearing are deemed to have committed an act not caused by or related to their disability do not lose all their rights under IDEA; that parent participation in the manifestation determination process is required; and that the CSE will no longer participate in the determination of whether or not a student will continue to receive necessary support services when placed in an alternative setting. Retain the proposed requirements relating to manifestation determinations. Require higher education coursework to prepare school psychologists to do FBAs and BIPS.

DEPARTMENT RESPONSE:

No changes are necessary since the regulations are clear that a student with a disability retains IDEA rights for special education services when suspended for behavior not related to the disability; and that the parent is a member of the manifestation team. The regulations are clear that during suspensions or other disciplinary removals for periods in excess of 10 school days in a school year which constitute a disciplinary change in placement, the CSE continues to determine the interim alternative setting and services. Requiring higher education coursework to prepare school psychologists to do FBAs and BIPS is beyond the scope of this rulemaking.

Section 201.8 – Authority of Impartial Hearing Officer to Order a Change in Placement to an IAES in a Dangerous Situation

COMMENT:

Revise section 201.8(b) to allow IAES placements be repeated only once.

DEPARTMENT RESPONSE:

The federal law does not limit the number of times the procedures for IAES placements may be repeated.

Section 201.11 – Expedited Due Process Hearings

COMMENT:

Add that the IAES must be an appropriate setting for the student and retain conditions for an IHO to consider when changing the student's placement to an IAES.

DEPARTMENT RESPONSE:

It is implied in the term IAES that the setting be appropriate for the student. We do not have the statutory authority to retain the considerations that the IHO must make to determine an IAES placement based on dangerousness.

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New York State Education Department

Meeting of the Board of Regents | June 2007

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