Meeting of the Board of Regents | May 2008

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

 

TO:	VESID Committee
FROM:	Rebecca H. Cort
SUBJECT:	Proposed Amendment to the Regulations of the Commissioner of Education Relating to Chapter 378 of the Laws of 2007 and the 2004 Reauthorization of the Individuals with Disabilities Education Act
DATE:	April 30, 2008
STRATEGIC GOAL:	Goals 1 and 2
AUTHORIZATION(S):

 

 

Summary

Issue for Discussion

 

              Proposed amendment of sections 177.1, 200.1, 200.3 through 200.7, 200.16 and 201.11 of the Regulations of the Commissioner of Education.

 

Reason for Consideration

 

              To conform State regulations to New York State (NYS) Education Law, as amended by Chapter 378 of the Laws of 2007, the Individuals with Disabilities Education Act (IDEA 2004), and Part 300 of the Code of Federal Regulations (CFR).

             

Proposed Handling

 

 The proposed amendment was before the Committee for discussion in January 2008.  As a result of public comment, the regulation has been revised and is before the Committee again for discussion in May 2008.  The amendment will be submitted for action at the July 2008 Regents meeting.

 

 

 

 

Procedural History

 

The VESID Committee discussed the proposed amendment at the January 2008 Regents meeting.  A Notice of Proposed Rule Making was published in the State Register on February 20, 2008.  Public hearings were conducted on March 26 and April 2, 2008 in New York City, Albany and Syracuse.   A Notice of Revised Rule Making will be published in the State Register no later than June 4, 2008.  

 

Background Information

 

The purpose of the proposed amendment is to conform the Regulations of the Commissioner of Education to NYS Education Law, as amended by Chapter 378 of the Laws of 2007, IDEA 2004, and 34 CFR Part 300.  The proposed regulations relate to:

• definitions of “school health and school nurse services” and “transition services”;
• the parties that can make a referral for an initial evaluation of a student suspected of having a disability;
• the provision of special education services to parentally placed students;
• the chairperson of the Committee on Special Education (CSE);
• agreements between school districts and parents regarding attendance of CSE or Committee on Preschool Special Education (CPSE) members; the three-year reevaluation of a student; and changes to an individualized education program (IEP) after the annual review without a meeting.
• participation of a representative from Early Intervention in the CPSE meeting of a child transitioning from EI to preschool special education; and
• timelines for provision of services to preschool students.

 

                Since publication of a Notice of Proposed Rule Making in the State Register on February 20, 2008, the State Education Department received a number of comments on the proposed amendments which are described in the attached Assessment of Public Comment.  In response to public comment, the proposed regulations have been revised to:

• incorporate the procedures relating to committee member attendance consistent with Education Law;
• clarify the parties that can make a referral for special education or a request for a referral for special education;
• add that the professional staff person of a school district who made a request for a referral of a student for an initial evaluation would participate in a meeting, if requested by the parent, to discuss such request or the withdrawal of a referral that resulted from such request;
• incorporate the procedures relating to changes to an IEP without a meeting consistent with Education Law; and
• include a cross reference to the procedures relating to committee member attendance in section 200.3(f).

 

Attached is a copy of the revised proposed terms and the Assessment of Public Comment.  Supporting materials for the proposed amendment are available upon request from the Secretary to the Board of Regents.

 

Timetable for Implementation

 

A Notice of Revised Rule Making will be published in the State Register no later than June 4, 2008.  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 July 2008 Regents meeting.  The effective date of the proposed amendment is August 21, 2008.

 

Recommendations

 

              The Board of Regents should discuss the proposed amendment in May and take action in July in order to ensure consistency of the Regulations of the Commissioner of Education with Chapter 378 of the Laws of 2007, IDEA and CFR Part 300.

 

 Attachment

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

AMENDMENT OF THE REGULATIONS OF THE COMMISSIONER OF EDUCATION

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

              1.  Section 177.1 of the Regulations of the Commissioner of Education is amended, effective August 21, 2008, as follows:

§177.1 Services to pupils attending nonpublic schools.

              For the purpose of obtaining services from a school district for a student who is enrolled in a nonpublic school, pursuant to section 3602-c of the Education Law, the parent, guardian or person legally having custody of such pupil shall file a written request for such services with the trustee, board of trustees or board of education of the school district [in which such parent, guardian, or person legally having custody of such pupil resides] responsible for providing such services in accordance with subdivision (2) of section 3602-c of the Education Law.

              2.  Subdivisions (qq), (ss) and (fff) of section 200.1 of the Regulations of the Commissioner of Education are amended, effective August 21, 2008, as follows:

              (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 nurse 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.

              (1)  .   .   .

              (ss)   School health services and school nurse services.

              (1)  School health services means [school nurse services] health services provided by either a qualified school nurse or other qualified person that are [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.

              (2)  School nurse services means services provided by a qualified school nurse pursuant to section 902(2)(b) of the Education Law that are 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.

              (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)  .   .   .

              3.  Subparagraph (v) of paragraph (1) of subdivision (a) of section 200.3 of the Regulations of the Commissioner of Education is amended, effective August 21, 2008, as follows:

              (v)  a representative of the school district who is qualified to provide or supervise special education and who is knowledgeable about the general education curriculum and the availability of resources of the school district, provided that an individual who meets these qualifications may also be the same individual appointed as the special education teacher or the special education provider of the student or the school psychologist.  The representative of the school district shall serve as the chairperson of the committee;

              4.  Subparagraph (viii) of paragraph (2) of subdivision (a) of section 200.3 of the Regulations of the Commissioner of Education is amended, effective August 21, 2008, as follows:

              (viii)  for a child in transition from early intervention programs and services, at the request of the parent, the appropriate professional designated by the agency that has been charged with the responsibility for the preschool child; and

              5.  Subparagraph (iv) of paragraph (2) of subdivision (c) of section 200.3 of the Regulations of the Commissioner of Education is amended, effective August 21, 2008, as follows:

              (iv)  a representative of the school district who is qualified to provide, administer or supervise special education and who is knowledgeable about the general education curriculum and who is knowledgeable about the availability of resources of the school district, who may also fulfill the requirement of subparagraph (iii) or (v) of this paragraph. The representative of the school district shall serve as the chairperson of the subcommittee;

              6.   Subdivisions (e) and (f) of section 200.3 of the Regulations of the Commissioner of Education are added, effective August 21, 2008, as follows:

              (e)  Role of the chairperson of the committee. The chairperson of the committee on special education, committee on preschool special education and subcommittee on special education shall preside over a meeting of such committee and carry out the  functions of a chairperson identified in this Part and in the Education Law, including but not limited to sections 200.2(b)(11)(iii), 200.4(a), 200.5(b)(1)(i)(c) and, as appropriate, 200.16(b)(1) of this Part, and sections 4401-a, 4402(7)(c) and, as appropriate, 4410(3) of the Education Law. 

              (f)  Member attendance.  Except as otherwise provided in this section, all members of a committee on special education, a committee on preschool special education, or a subcommittee on special education shall attend a meeting of such committee, except that the parent and the school district may agree that the attendance of a member is not necessary or that a member of the committee may be excused in accordance with the following procedures pursuant to sections 4308(2)(f) through (h), 4355(2)(f) through (h), 4402(1)(b)(1)(b-1) through (b-3), 4402(1)(b)(1)(d), and 4410(3)(a)(3) though (5) of the Education Law:

(1)  A member of such committee or subcommittee is not required to attend a meeting of the committee, in whole or in part, if the parent and the school district agree, in writing, that the attendance of the member is not necessary because the member’s area of the curriculum or related services is not being modified or discussed at the meeting.

(2)  A member of such committee may be excused from attending a meeting of the committee or subcommittee, in whole or in part, when the meeting involves a modification to or discussion of the member’s area of the curriculum or related services if the parent to the student and the school district consent, in writing, to the excusal and the excused member submits to the parent and such committee, written input into the development of the IEP, and in particular written input with respect to their area of curriculum or related services prior to the meeting.

(3)  Requests for excusal of a member of a committee as provided for in paragraphs (1) and (2) of this subdivision, and the written input as provided for in paragraph (2) of this subdivision, shall be provided not less than five days prior to the meeting date, in order to afford the parent a reasonable time to review and consider the request.  Provided however, that a parent shall retain the right to request and/or agree with the school district to excuse a member of the committee or subcommittee at any time including where the member is unable to attend the meeting because of an emergency or unavoidable scheduling conflict and the school district submits the written input for review and consideration by the parent within a reasonable time prior to the meeting and prior to obtaining written consent of the parent to such excusal.

(4)  Requests for excusals do not apply to the parents of the student or the appointee of the municipality in the case of a committee on preschool special education.

              7.  Subdivision (a) of section 200.4 of the Regulations of the Commissioner of Education is amended, effective August 21, 2008, 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)  Referral for an initial evaluation.  A referral may be made by:

              (i)  a student's parent [or person in parental relationship] as defined in section 200.1(ii) of this Part;

              [(ii)  a professional staff member of the school district in which the student resides, or the public or private school the student legally attends;

              (iii)  a licensed physician;

              (iv)  a judicial officer;

              (v)  the commissioner or designee of a public agency with responsibility for welfare, health or education of children; or

              (vi)  for purposes of referring one's self, a student who is over 18 years of age or older, or an emancipated minor, who is eligible to attend the public schools of the district.]

(ii)  a designee of the school district in which the student resides, or the public school district the student legally attends or is eligible to attend;        

(iii)  the commissioner or designee of a public agency with responsibility for the education of the student; and/or

(iv)  a designee of an education program affiliated with a child care institution with committee on special education responsibility pursuant to section 4002(3) of the Education Law.

              (2)  Request for referral for an initial evaluation.  (i) A written request that the school district or agency refer the student for an initial evaluation pursuant to paragraph (1) of this subdivision may be made by:

              (a)  a professional staff member of the school district in which the student resides, or the public or private school the student legally attends or is eligible to attend;

              (b)  a licensed physician;

              (c)  a judicial officer;

              (d)  a professional staff member of a public agency with responsibility for welfare, health or education of children; or

              (e)  a student who is 18 years of age or older, or an emancipated minor, who is eligible to attend the public schools of the district.

              (ii)  A written request for referral of a student for an initial evaluation made to the school where the student resides or legally attends or is eligible to attend shall, if received by the building administrator or any other employee of the school, be forwarded to the committee chairperson immediately upon its receipt.

              [(2)] (iii)   A written request for referral submitted by persons other than the [parent,] student or a judicial officer shall:

              [(i)] (a)    .   .   .

              [(ii)] (b)  .   .   .

              [(iii)] (c)  .   .   .

              (iv)  Upon receipt of a request for a referral that meets the requirements of subparagraph (iii) of this paragraph, the school district shall, within 10 school days, either:

              (a)  request parent consent to initiate the evaluation; or

              (b)  provide the parent with a copy of such request for referral; and

              (1)  inform the parent of his or her right to refer the student for an initial evaluation for special education programs and/or services; and

              (2)  offer the parent the opportunity to meet to discuss the request for referral and, as appropriate, the availability of appropriate general education support services for the student, with the building administrator or other designee of the school district authorized to make a referral pursuant to paragraph (1) of this subdivision, and the party making the request for referral if a professional staff member of the school district.  Upon request of the parent or school district, any other person making a request for referral shall have the opportunity to attend such meeting.

              (3)  .   .   .

              (4)  .   .   .

              (5)  .   .   .

              (6)  .   .   .

              (7)  In the event that the parent and the person submitting the referral pursuant to subparagraphs (ii), (iii) and/or (iv) of paragraph (1) of this subdivision agree in writing pursuant to section 200.5(b)(1)(i)(c) of this Part that the referral shall be withdrawn, the chairperson of the committee on special education shall provide the parent and the referring person a copy of the agreement.  Each such agreement shall specify any alternative methods suggested to resolve the identified learning difficulty of the student and shall provide the opportunity for a follow-up conference within an agreed period of time to review the student's progress.  A copy of the agreement shall also be placed in the student's cumulative educational record file.

              (8)  .   .   .

              (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,] requested the referral 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 request for 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:

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

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

              8.  Paragraph (4) of subdivision (b) of section 200.4 of the Regulations of the Commissioner of Education is amended, effective August 21, 2008, as follows:    

              (4)  A committee on special education shall arrange for an appropriate reevaluation of each student with a disability if the school district determines that the educational or related services needs, including improved academic achievement and functional performance of the student, warrant a reevaluation[,] or if the student's parent or teacher requests a reevaluation, but not more frequently than once a year[,] unless the parent and representatives of the school district appointed to the committee on special education agree otherwise; and at least once every three years, except where the school district and the parent agree in writing that such reevaluation is unnecessary. The reevaluation shall be conducted by a multidisciplinary team or group of persons, including at least one teacher or other specialist with knowledge in the area of the student’s disability. In accordance with paragraph (5) of this subdivision, the reevaluation shall be sufficient to determine the student’s individual needs, educational progress and achievement, the student’s ability to participate in instructional programs in regular education and the student’s continuing eligibility for special education. The results of any reevaluations must be addressed by the committee on special education in a meeting to review and, as appropriate, revise the student’s IEP. To the extent possible, the school district shall encourage the consolidation of reevaluation meetings for the student and other committee on special education meetings for the student.

              9.  Paragraph (7) of subdivision (b) of section 200.4 of the Regulations of the Commissioner of Education is amended, effective August 21, 2008, as follows:

              (7)  The initial evaluation to determine if a student is a student with a disability must be completed within 60 days of receiving parental consent for the evaluation.  The 60-day timeframe shall not apply if:

              (i)  a student enrolls in a school served by the school district after the relevant timeframe in this paragraph has begun and prior to a determination by the student's previous school district as to whether the student is a student with a disability, but only if the subsequent school district is making sufficient progress to ensure a prompt completion of the evaluation, and the parent and subsequent school district agree in writing to a specific time when the evaluation will be completed; or

              (ii)  .   .   .

              10.         Subdivision (d) of section 200.4 of the Regulations of the Commissioner of Education is amended, effective August 21, 2008, as follows:

              (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 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)  If the student has been determined to be ineligible for special education, the recommendation shall indicate the reasons the student was found ineligible.

              (i)  A copy of the recommendation and appropriate evaluation information shall be provided to the building administrator. The building administrator shall determine which [educationally related] support services, if appropriate, shall be provided to the student [, and, to the extent available, shall ensure that such services are provided pursuant to section 100.2(v) of this Title].

              (ii)  .   .   .

              (iii)  .   .   .

              (2)  .   .   .

              (3)  .   .   .

              (4)  .   .   .

              (5)  .   .   .

              (6)  .   .   .

              11.  Subdivision (g) of section 200.4 of the Regulations of the Commissioner of Education is amended, effective August 21, 2008, as follows:

              (g)  Amendments to the IEP.

(1)  Amendments to an IEP made after the annual review 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)] (i)   the parent shall receive prior written notice of any changes to the IEP pursuant to section 200.5(a) of this Part; [and]

              (ii)  the committee on special education shall be notified of any changes made to the IEP pursuant to paragraph (2) of this subdivision; and

              [(2)] (iii)  the parent shall receive a copy of the document that amends or modifies the IEP or, upon request, the parent shall be provided a revised copy of the entire IEP with the amendments incorporated.

              (2)  In making changes to a student’s IEP after the annual review has been conducted, consistent with the procedures established in sections 4308(2)(i), 4355(2)(i), 4402(1)(b)(3)(b) and 4410(3)(a)(6) of the Education Law, the parent and the school district may agree not to convene a meeting of the committee on special education for the purpose of making those changes, and instead may develop a written document to amend or modify the student’s current IEP under the following circumstances:

              (i)  the parent makes a request to the school district for an amendment to the IEP and the school district and such parent agree in writing; or

              (ii)  the school district provides the parent with a written proposal to amend a provision or provisions of the IEP that is conveyed in language understandable to the parent and in such parent’s native language or other dominant mode of communication, informs and allows the parent the opportunity to consult with the appropriate personnel or related service providers concerning the proposed changes and the parent agrees in writing to such amendments.

(3)  Amendments to an IEP pursuant to paragraph (2) of this subdivision shall not affect the requirement that the committee on special education review the IEP at least annually, or more often if necessary.

              12.  Subparagraph (ii) of paragraph (1) of subdivision (i) of section 200.4 of the Regulations of the Commissioner of Education is amended, effective August 21, 2008, as follows:

              (ii)  upon the first annual review after attaining the age of 15 for a student who is receiving nonresidential special services or programs in accordance with article 89 of the Education Law, or is receiving special services or programs in a day program at the [Human Resources] Henry Viscardi School, and who:

              (a)  .   .   .

              (b)  is receiving individualized attention or intervention because of intensive management needs or a severe [handicapping condition] disability; and

              (c)  .   .   .

              13.  Paragraph (1) of subdivision (j) of section 200.4 of the Regulations of the Commissioner of Education is amended, effective August 21, 2008, as follows:

              (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 written agreement of the student’s parent and the CSE.

              14.  Clause (c) of subparagraph (i) of paragraph (1) of subdivision (b) of section 200.5 of the Regulations of the Commissioner of Education is amended, effective August 21, 2008, as follows:

              (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 pursuant to section 200.4(a)(1)(ii), (iii) and/or (iv) of this Part, 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] such 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;

              15.  Subparagraph (viii) of paragraph (2) of subdivision (c) of section 200.5 of the Regulations of the Commissioner of Education is added, effective August 21, 2008, as follows:

              (viii)  in the case of a child who was previously served under Part C (early intervention services), inform the parent(s) of his or her right to request an invitation to an initial CPSE meeting be sent to the early intervention service coordinator or other representatives of the early intervention system to assist with the smooth transition of services.                         

              16.  Subparagraph (v) of paragraph (1) of subdivision (h) of section 200.5 of the Regulations of the Commissioner of Education is amended, effective August 21, 2008, as follows:

              (v)  discussions that occur during the mediation process must be confidential and may not be used as evidence in any subsequent due process hearings or civil proceedings [and the parties to the mediation process may be required to sign a confidentiality pledge prior to the commencement of the process]; and

              17.  Paragraph (2) of subdivision (l) of section 200.6 of the Regulations of the Commissioner of Education is amended, effective August 21, 2008, as follows:

              (2)  Except as otherwise provided in paragraph (3) of this subdivision, any district, school, or agency [or other agency] granted a waiver shall submit an annual report to the commissioner regarding the operation and evaluation of the program no later than 30 days after the end of each school year for which a waiver is granted.

                                        18.  Clause (c) of subparagraph (i) of paragraph (1) of subdivision (d) of section 200.7 of the Regulations of the Commissioner of Education is amended, effective August 21, 2008, as follows:

              (c)  If the school district responsible for the child elects to appoint additional members to the multidisciplinary team, it shall send written notice of such election to the State-operated school within seven business days of its receipt of notice pursuant to clause (b) of this subparagraph. A school district which fails to send such notice in a timely manner shall be deemed to have waived its right to appoint additional members pursuant to this clause. In addition to the members required for a committee on special education pursuant to Education Law[,] section 4402(1), the State-operated school’s multidisciplinary team shall include any additional members appointed by the board of education of the school district responsible for the student, except as provided in section 200.3(f) of this Part. For each member appointed by the State-operated school, the school district may appoint a corresponding member, including a representative of the committee on special education who is qualified to teach or supervise special education and who is knowledgeable about general education curriculum and resources, a school psychologist, the student’s special education teacher, a regular education teacher of the student whenever the student is or may be participating in the regular education environment, a parent member, an individual who can interpret the instructional implications of evaluations, others who are determined to have knowledge or special expertise regarding the student, a physician where the parent requests attendance of the physician member. The commissioner shall determine the location at which the multidisciplinary team meeting will be held. In the event the multidisciplinary team is unable to reach consensus and there is a tie vote on the multidisciplinary team, the parents of the student being discussed shall cast the deciding vote.                           

              19.  Subdivision (b) of section 200.16 of the Regulations of the Commissioner of Education is amended, effective August 21, 2008, as follows:

              (b)  (1) Referral.

 

              (i)  A preschool student suspected of having a disability shall be referred in writing to the chairperson of the district's committee on preschool special education. Such referral may be made by the persons specified in section [200.4(a)(1)(i) through (v)] 200.4(a)(1) of this Part [or by professional staff members of:

              (a)  an Early Childhood Direction Center (ECDC);

              (b)  preschool programs approved pursuant to section 4410 of the Education Law; or

              (c)  programs providing special instruction to children birth to three years of age approved by the lead State agency as designated by the Governor to administer Federal funds for such programs].

              (ii)  .   .   .                        

              (iii)  .   .   .

              (iv)  .   .   .

              (v)  .   .   .

              20.  Paragraph (1) of subdivision (f) of section 200.16 of the Regulations of the Commissioner of Education is amended, effective August 21, 2008, as follows:

              (1)  Upon receipt of the recommendation of the committee, the board of education shall arrange for the preschool student with a disability to receive such programs and services commencing with the July, September or January starting date for the approved program, unless such services are recommended by the committee less than 30 school days prior to, or after, such appropriate starting date selected for such preschool student, in which case, such services shall be provided as soon as possible following development of the IEP, but no later than 30 school days from the recommendation of the committee. If the board disagrees with the recommendation of the committee, it shall send the recommendation back to the committee with notice to the parent and the committee including a statement of the board of education's reasons and that the recommendation will be sent back to the committee with notice of the need to schedule a timely meeting to review the board's concerns and to revise the IEP as deemed appropriate.

              21.  Paragraph (5) of subdivision (b) of section 201.11 of the Regulations of the Commissioner of Education is amended, effective August 21, 2008, as follows:

              (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.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

PROPOSED AMENDMENT OF SECTIONS 177.1, 200.1, 200.3 THROUGH 200.7, 200.16 and 201.11 OF THE REGULATIONS OF THE COMMISSIONER OF EDUCATION PURSUANT TO SECTIONS 207, 3208, 3214, 3602-c, 3713, 4002, 4308, 4355, 4401, 4401-a, 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

ASSESSMENT OF PUBLIC COMMENT

              Since publication of a Notice of Proposed Rule Making in the State Register on February 20, 2008 the State Education Department received the following comments on the proposed amendments.  Other comments received are unrelated to the proposed rule and are not included in the Assessment of Public Comment.

General

1.  COMMENT:

              Only enact changes to regulations that are required for compliance with federal law and regulations.

DEPARTMENT RESPONSE:

              The proposed amendments are necessary to conform the Regulations to Chapter 378 of the New York State (NYS) Laws of 2007, the 2004 Reauthorization of the Individuals with Disabilities Education Act (IDEA), and federal regulations to implement IDEA and to implement the IDEA under consistent standards for students age 3–21. 

Section 177.1 – Dual Enrollment

2.  COMMENT:

              Adopt regulations that incorporate Education Law §3602-c requirements for providing special education services to parentally placed nonpublic school students and  billing for administrative costs.  Clarify when a school district of residence, if not the district where the private school is located, is relieved of its obligations for child find and annual reviews for parentally-placed children.  Review provisions outlined in legislation relating to students parentally placed in nonpublic schools.  The district of location can provide unlimited services for students with no checks on the process which would allow the district of residence to contest, control or respond to the recommendations of the district of location.  There is no incentive for the district of location to limit services since they would incur the cost for an impartial hearing.  Allowing the district of location to make recommendations for services is inconsistent with tax codes, which requires the district of residence to have fiduciary power over tax money.

DEPARTMENT RESPONSE:

              The Department has proposed regulations relating to billing for parentally placed nonpublic school students under a separate rulemaking which was published in the State Register on May 7, 2008.  The Department will be issuing guidance to inform school districts of the process for district of location to recover its costs for evaluations, committee on special education (CSE) administrative costs and for special education services from district of residence for nonpublic school students.  Other comments will be considered for future rulemaking. 

§200.1(fff) Definition of Transition Services

3.  COMMENT:

              Students with disabilities should begin receiving vocational rehabilitation (VR) services when they receive working papers.  Ensure high quality interest/career assessments are coupled with multiple opportunities for practical work experiences.  Require VR counselors to partner with schools to attend professional development opportunities and interview students and families about employment/transition process to improve services.  Require VR support be provided to students in both work and education.

 DEPARTMENT RESPONSE:

              The comments relate to VR services and are beyond the scope of the proposed rule making.  The purpose of the proposed rule making is to conform the Commissioner's Regulations to Chapter 378 of the Laws of 2007, the Individuals with Disabilities Education Act (IDEA) (20 USC 1400 et seq.), as amended by Public Law 108-446, and the final amendments to 34 CFR Part 300; to ensure that chairpersons of committees on special education are appropriately qualified; and to establish procedures when a district receives a request for referral of a student for an initial evaluation for special education services. 

§200.1(ss) School Health Services and School Nurse Services

4.  COMMENT:

              Provide students with mental illnesses with school health services to help them learn about their mental health disability; access to school nurse services; and special education services within their own school.  Pilot health education services through collaboration with the Office of Mental Health.  Collaborate with health entities to provide supports to students with mental illnesses, similar to home care structure.

DEPARTMENT RESPONSE:

These comments offer recommendations for collaborative programs and practices to improve health services to students with mental illnesses and are beyond the scope of the proposed rule making. 

5.  COMMENT:

              Regulations should clarify who is included in term “other qualified person” in the definition of school health services and whether a person providing school nurse services must be a registered nurse or may be another health professional as  referenced in Education Law §902(2)(b). 

DEPARTMENT RESPONSE:

              “Other qualified persons” who may provide school health services must be determined in accordance with students’ individual health needs and consistent with the scope of practice of professionals providing such services.  The proposed regulation is consistent with federal requirement that school nurse services are services provided by a qualified school nurse (i.e., nurse that meets State standards for a qualified school nurse) and Education Law §902(2)(b), which requires that school nurses shall be registered professional nurses. 

§§ 200.3(a)(1)(v) and 200.3(c)(2)(iv) - Committee Chairperson

6.  COMMENT:

The proposed regulations would limit who the district may employ to fill the role of chairperson.  The proposed regulation provides insufficient advance notice for a district to replace existing chairpersons.  Grandfather-in existing chairpersons.  Education Law §4410(a)(3)(a) requires the representative of a district to serve as chairperson of the committee on preschool special education (CPSE); however, there is no such statutory provision for CSE or subcommittee chairpersons.  Absent a legislative mandate, eliminate new chairperson position.  If adopted, add language to describe chairperson’s role to lead team towards consensus on content of individualized education program (IEP) and to ensure, if consensus cannot be reached, IEP includes services child needs to receive FAPE.  Add to regulation that it is chairperson’s responsibility to ensure decisions are based solely on child’s unique needs, not funding, availability of staff, space or other administrative considerations.  Include language that identifies prerequisite knowledge and training in special education to ensure decisions are based on students’ needs.  Require district representative be certified in special education and have no responsibilities or interests that would inhibit full and fair discussion on child’s needs. 

DEPARTMENT RESPONSE:

              The proposed amendment is necessary to ensure that the qualifications of CSE and subcommittee chairpersons are consistent with those of CPSE chairpersons.  In accordance with State and federal law and regulations, each committee must include a “representative of the school district who is qualified to provide or supervise special education and who is knowledgeable about the general education curriculum and the availability of resources of the school district, provided that an individual who meets these qualifications may also be the same individual appointed as the special education teacher or the special education provider of the student or the school psychologist.”   Therefore, the proposed regulation that would require the representative of the school district to also serve as the chairperson of the committee does not require the school district to “hire” additional staff to fill this role.  Education Law §4403 also provides the Department with general authority to formulate rules and regulations pertaining to the physical and educational needs of students with disabilities as the Commissioner of Education shall deem to be in their best interests.  While section 4410 of the Education Law and section 200.3 of the Regulations of the Commissioner of Education require that the representative of the school district serve as the chairperson of the CPSE, there is no contrary language in section 4402 and under the IDEA, the standards must be consistent and provide the same protections for students with disabilities between the ages of three and 21.  State law and the Regulations of the Commissioner confer specific responsibilities to the chairperson and, as such, it is appropriate that such functions be carried out by individuals appropriately qualified to do so and that the qualifications for the CSE and CPSE chairpersons be the same.  No revisions were made to the proposed requirement that the school district representative on the CSE serve as the chairperson and fulfill the roles of chairperson as prescribed in law and regulation and no further specificity was added to the role of the chairperson than that currently required in law and regulation.  The Department will address other comments relating to the role of the chairperson in future guidance.

§200.3(f) – CSE, CPSE, Subcommittee and Multidisciplinary Team Member Attendance

7.  COMMENT:

Add the statutory language to regulations for the procedures for parent and district agreements regarding the attendance of members at a meeting.

DEPARTMENT RESPONSE:

The revised proposed regulations incorporate the specific procedures relating to committee member attendance from Education Law, as amended by Chapter 378 of the Laws of 2007.

8.  COMMENT:

Do not allow for excusals of CSE members from meetings to review and revise IEPs.  Define who is a necessary and unnecessary participant.  Require members be given notice of a proposed decision to excuse them, reasons for excusal and procedures to provide input into meeting.  Require excused members be given notice of excusal and the opportunity to provide comments on matters to be discussed at the meeting.  Add language that failure of excused member to submit their input would not prevent an IEP meeting from convening.  Clarify that excusal of parent member is governed by existing procedures in §200.3(a)(2)(v).  Mirror §200.5(c) notice requirements for IEP meetings and clarify that request for excusal must be made in writing and received not less than five days prior to meeting.  Interpret term “reasonable time.”  If there is an emergency or unavoidable scheduling conflict, require parent receipt of excusal notice and member’s written input at least 24 hours prior to the IEP meeting.  Clarify where member is unable to attend meeting because of an emergency or unavoidable scheduling conflict, the written statement may be provided to the parent “as soon as practicable.”

DEPARTMENT RESPONSE:

              The proposed regulation is necessary to comply with Education Law §§4308, 4355, 4402 and 4410, as amended by Chapter 378 of the Laws of 2007.  While the proposed regulations have been revised to incorporate statutory language for clarity purposes, no changes have been made that would add to or modify the procedures as enacted by State law. 

§200.3(a)(2)(viii) - Early Intervention (EI) Representative

9.  COMMENT:

              Do not require that, for a child transitioning from EI, that the EI representative only be invited to a CPSE meeting at the parent’s request.

DEPARTMENT RESPONSE:

              The proposed amendment is necessary to conform to federal requirements and Education Law §4410(3)(a)(1), as amended by Chapter 378 of the Laws of 2007.

§200.4(a)(1) - Referral for initial evaluation and Request for Referral

10.  COMMENT:

Concerned individuals with first hand knowledge of child can no longer make an initial referral.  Allow Early Childhood Direction Centers, 4410 schools and EI providers to make written referrals for an initial evaluation of a preschool child.  Add that a designee of school district authorized to make a referral includes but not be limited to a professional staff member of the school district such as a school psychologist.  Allow student’s religious or charter school to make a referral. Clarify who can make a referral for an initial evaluation for a parentally placed private school student.  

DEPARTMENT RESPONSE:

              Proposed language is consistent with federal requirements and Education Law §4401-a, as amended by Chapter 378 of the Laws of 2007, which authorize who can make a referral for an initial evaluation.  §3602-c, as amended by Chapter 378 of the Laws of 2007, requires the school district of location to be responsible for evaluation and possible identification as a student with a disability of all students attending nonpublic schools located within the school district.  Nothing in §200.4(a) would be contrary to this requirement or would preclude a referral or request for referral from being made to the district where the nonpublic school is located or to the school district where the parent resides.  Education Law §3602-c requires that requests for educational services for students with disabilities, not referrals, be filed with the district of location on or by June 1 preceding the school year for which the request is made.   

11.  COMMENT:

Require that the child’s teacher or other school professionals participate in any subsequent meetings in which the withdrawal of a referral, written request for referral and alternatives to special education are discussed.  Require that the professional staff member who submitted a request for a referral receive a copy of any agreement between parent and district regarding suggested alternative methods or general education support services to be provided to a student, instructional strategies to be used, student centered data to be collected and proposed duration of program; provide opportunity for follow-up conference within agreed upon period of time to review student progress; and place copy of agreement in student’s cumulative educational record.  Clarify why the proposed regulations would exclude a professional staff member who makes a request for referral from the meeting unless the parent requests his/her attendance but allows anyone else making a request to be given the opportunity to attend.  Clarify who will discuss availability of general education supports with parents at meeting to discuss request for a referral.  In cases that fail to meet the requirements of §200.4(a)(2)(iii) regarding the required content of a request for a referral, require the person authorized to initiate a referral, who declines to do so, to advise the building administrator and person requesting the referral of the reasons in writing, specifying methods to address the identified learning difficulty, and provide copy of statement to parent.

DEPARTMENT RESPONSE:

The proposed regulations have been revised to require that the district offer the parent the opportunity to meet with representatives of the school district and the professional staff member of the school district who may have initiated the request for the referral.  The decision regarding who should represent the school district in such a meeting is best left to the discretion of the district.  The regulations have also been revised to require that in a meeting to discuss the withdrawal of a parent request for a referral for special education, the professional staff member who made a request for referral that resulted in the parent referral be invited to participate in a meeting held pursuant to §200.4(a)(9) of the Regulations to determine if the student would benefit from additional general education support services. 

12.  COMMENT:

Require written request for referral be sent to committee chairperson without screening for the appropriateness of the request.  Require that the parent immediately receive a copy of the request when it is received by the CSE and that the notice be in parent’s native language or other mode of communication.  Clarify that ten-day period of action begins when building administrator or other school employee receives the written request for a referral.  Impose additional timelines for requests for referrals to ensure the school district acts in a timely manner following the receipt of a request for a referral.

DEPARTMENT RESPONSE:

              No revisions are necessary to address the first comment since the proposed regulations would require the school district that receives a request for a referral to,  within 10 school days, either request parent consent to initiate the evaluation; or provide the parent with a copy of such request for referral, inform the parent of his or her right to refer the student for an initial evaluation for special education programs and/or services and provide the parent the opportunity to meet to discuss the request for referral.  As written, the proposed amendment means that the 10 school days commences with receipt of the request for a referral by the building administrator, other employee receiving the request for referral or the committee chairperson, and therefore no further revisions to address this comment is necessary

              If a request for a referral results in a referral for an initial evaluation by the parent or the school district, current regulations require the school district to provide prior written notice of the proposed evaluation in the parent’s native language or other mode of communication unless it is clearly not feasible to do so.

13.  COMMENT:

Clarify if a request for referral can be withdrawn and if this would be done in accordance with procedures for withdrawing a referral in §200.4(a)(7).  Clarify what happens if parent fails or refuses consent for an initial evaluation, or refuses to attend a request for referral meeting, and if due process provisions in §200.4(a)(8) would apply.  Clarify applicability of §200.4(a)(9) if there is agreement to proceed with an initial evaluation and, if there is an option to hold another meeting, what the purpose of the meeting would be. 

DEPARTMENT RESPONSE:

              The withdrawal procedures in §200.4(a)(7) apply to referrals not requests for referral.  If parents refuse to give consent or fail to respond to a request to provide consent for an initial evaluation, the district may, but is not required to, continue to pursue the evaluation by using the due process procedures described in §200.5 of the Regulations, with the exception of referrals of preschool students, home schooled students or students who are parentally placed in a private school.  If a meeting to discuss a request for referral results in the parent making a referral, the building administrator has the option, pursuant to Education Law §4401-a and §200.4(a)(9) of the Regulations, to request a meeting with the parent to discuss additional general education support services. 

14.  COMMENT:

              Removing term “or person in parental relation” implies only actual parent can sign forms or refer student.

DEPARTMENT RESPONSE:

              “Parent”, as defined in 200.1(ii), includes person in parental relationship to the child as defined in § 3212 of the Education Law.

15.  COMMENT:

Further train CSE/CPSE chairs and those that can make a referral. 

DEPARTMENT RESPONSE:

The proposed regulation does not add additional training requirements for CSE/CPSE chairpersons.  However, the Department will offer a CSE/CPSE chairperson training course beginning in the 2008-09 school-year.

16.  COMMENT:

Limiting who may refer a student allows district and parent, without a third party, to discuss alternative ways to meet student’s needs in general education setting and try interventions/supports. 

DEPARTMENT RESPONSE:

Comment is supportive in nature and no response is necessary.

200.4(g)(1) - Amendments to an IEP without a meeting

17.  COMMENT:

Decisions made outside a formal CSE meeting should be with parent’s informed choice and agreement.  Remove references to Education Law and incorporate statutory language pertaining to mandated procedures for IEP amendments.  Discussions regarding IEP amendments should happen before a change to the IEP is made. Require input from service providers be incorporated into the document that amends/modifies student’s IEP.  Require full IEP team participation in the development of a written amendment to an IEP, even if the individual members' input consists solely of written input.  Add language that would subject changes to an IEP to requirements in §200.4(e)(3).  Require a private school where a student is placed to be notified of any meeting between the parent and district representative to discuss changes to IEP without a CSE meeting and add a requirement the a representative of such school be invited to participate in the discussion.  Allowing changes to the IEP without a meeting will be useful but must be used with great care and communication between parent and district.   

DEPARTMENT RESPONSE:

Proposed regulations have been revised to incorporate specific procedures relating to IEP amendments consistent with Education Law that require districts to provide parents with written proposal to amend IEP and allowing parents opportunity to consult with appropriate personnel or related service providers concerning proposed changes.  We agree that the procedures to change an IEP after an annual review meeting without convening a CSE or CPSE meeting should be used with discretion and only when it is in the best interests of the student and parent to do so. 

200.4(b)(4) - Reevaluations

18.  COMMENT:

Agreements that a three-year reevaluation is not necessary will save administrative and evaluator time and keeps students in classrooms.

DEPARTMENT RESPONSE:

              Comment is supportive in nature and no response is necessary.

19.  COMMENT:

              Adequate research of best practices and research-based materials/curriculum should occur before implementation of an Response-to-Intervention RTI approach.  NYSED should ensure RTI training and information is provided to all school staff and personnel.  Fully fund RTI; ensure schools have the necessary materials to implement this model; identify RTI criteria, define levels of supports and monitor progress and accountability for implementation of RTI.

DEPARTMENT RESPONSE:

The comments are beyond the scope of the proposed rule making.  Regulations relating to RTI were the subject of a previous rulemaking. 

Charter Schools

20.  COMMENT:

The provision and range within the continuum of special education services must be available to students with disabilities so that their needs are met within the least restrictive environment.   

DEPARTMENT RESPONSE:

The comment is beyond the scope of the proposed rule making.