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THE STATE
EDUCATION DEPARTMENT / THE UNIVERSITY
OF THE STATE OF NEW YORK / ALBANY, NY 12234 |
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TO: |
EMSC-VESID
Committee |
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FROM: |
Rebecca H. Cort
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SUBJECT: |
Proposed Amendment to Commissioner’s Regulations
Relating to the 2004 Reauthorization of the Individuals with Disabilities
Education Act (IDEA)
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DATE: |
November 14, 2005
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STRATEGIC
GOAL: |
Goals 1 and 2
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AUTHORIZATION(S): |
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SUMMARY
Issue for
Decision
Should the
Board of Regents adopt as a permanent rule the proposed amendment to sections
100.2, 200.1, 200.2, 200.3, 200.4, 200.5, 200.6, 200.7, 200.14, 200.16, 201.2,
201.3, 201.4, 201.5, 201.7, 201.8, 201.9, 201.10 and 201.11 of the Regulations
of the Commissioner to align State regulations to the reauthorized IDEA?
Reason(s) for
Consideration
Implementation of Regents
policy.
Proposed
Handling
Proposed
regulations will be presented to the EMSC-VESID Committee in December 2005 for
adoption as a permanent rule and as a second emergency measure to ensure that
the September emergency adoption remains continuously in effect until the
effective date of the regulation's permanent adoption. A Statement of Facts and
Circumstances Which Necessitate Emergency Action is attached.
Procedural
History
A Notice of
Proposed Rule Making was published in the State Register on June 8, 2005. After having discussed proposed
amendments in June 2005 and revised amendments based on public comment at the
September Regents meeting, the Board of Regents adopted the revised proposed
amendment as an emergency measure at the September Regents meeting, effective
September 13, 2005. A Notice of
Emergency Adoption and Proposed Rule Making was published in the State Register
on September 28, 2005.
Background
Information
The purpose of the proposed
amendment is to conform State regulations to IDEA and State law relating to the
provision of special education services.
IDEA was reauthorized in December 2004 and most of its provisions became
effective July 1, 2005. Chapter 352
of the Laws of 2005, effective July 1, 2005, amended the Education Law to ensure
that the State will be in compliance with the provisions of the reauthorized
IDEA in the 2005-2006 school year.
The State and school districts must implement the new requirements in
IDEA and any current federal regulations that do not conflict with IDEA. The revised proposed amendments have
been further revised only to make nonsubstantial technical corrections.
Supporting materials for the proposed amendment are available upon
request from the Secretary to the Board of Regents.
Recommendation
VOTED: That subparagraph (iv) of paragraph (4) and
subparagraphs (i), (iii), (iv) and (xvii) of paragraph (7) of subdivision (x)
and subparagraph (iii) of paragraph (1) of subdivision (dd) of section 100.2 of
the Regulations of the Commissioner of Education be amended; that Part 101 be
repealed; that subdivisions (e), (s), (t), (x), (dd), (ii), (oo), (qq), (ss),
(ww), (zz), (ccc) and (fff) of section 200.1 be amended and new subdivisions
(hhh), (iii), (jjj) and (kkk) of section 200.1 be added; that subdivisions (a),
(b), (d), (e), (h) and (i) of section 200.2 be amended; that sections 200.3,
200.4 and 200.5 be amended; that a new subdivision (m) be added to section
200.6; that paragraph (4) of subdivision (c) and subdivision (d) of section
200.7 be amended; that subdivisions (d) and (e) of section 200.14 be amended;
that section 200.16 be amended; that subdivisions (k) and (l) of section 201.2
be amended and a new subdivision (m) be added and subdivisions (m) through (r)
of section 201.2 be relettered as (n) through (s); that sections 201.3, 201.4
and 201.5 be amended; that subdivisions (d) and (e) of section 201.7 be amended
and a new subdivision (f) be added to section 201.7; that section 201.8 be
amended; that subdivisions (b) and (c) of section 201.9 be amended; that
subdivisions (c), (d) and (e) of section 201.10 and subdivisions (b) and (d) of
section 201.11 be amended, as submitted, effective December 29,
2005.
VOTED: That subparagraph (iv) of paragraph (4) and
subparagraphs (i), (iii), (iv) and (xvii) of paragraph (7) of subdivision (x)
and subparagraph (iii) of paragraph (1) of subdivision (dd) of section 100.2 of
the Regulations of the Commissioner of Education be amended; that Part 101 be
repealed; that subdivisions (e), (s), (t), (x), (dd), (ii), (oo), (qq), (ss),
(ww), (zz), (ccc) and (fff) of section 200.1 be amended and new subdivisions
(hhh), (iii), (jjj) and (kkk) of section 200.1 be added; that subdivisions (a),
(b), (d), (e), (h) and (i) of section 200.2 be amended; that sections 200.3,
200.4 and 200.5 be amended; that a new subdivision (m) be added to section
200.6; that paragraph (4) of subdivision (c) and subdivision (d) of section
200.7 be amended; that subdivisions (d) and (e) of section 200.14 be amended;
that section 200.16 be amended; that subdivisions (k) and (l) of section 201.2
be amended and a new subdivision (m) be added and subdivisions (m) through (r)
of section 201.2 be relettered as (n) through (s); that sections 201.3, 201.4
and 201.5 be amended; that subdivisions (d) and (e) of section 201.7 be amended
and a new subdivision (f) be added to section 201.7; that section 201.8 be
amended; that subdivisions (b) and (c) of section 201.9 be amended; that
subdivisions (c), (d) and (e) of section 201.10 and subdivisions (b) and (d) of
section 201.11 be amended, as submitted, effective December 12, 2005, 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 ensure that
the amendments previously adopted by emergency action to conform the
Commissioner's Regulations to the requirements of IDEA as amended by Public Law
108-446 and Chapter 352 of the Laws of 2005 remain continuously in effect until
the effective date of their adoption as a permanent rule, 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.
Timetable for
Implementation
Pursuant to
the State Administrative Procedure Act, the December permanent adoption cannot
become effective until after its publication in the State Register on December
28, 2005. However, the September
emergency adoption will expire on December 11, 2005. Therefore, in addition to the December
permanent adoption, a second emergency adoption is necessary at this time to
ensure that the amendments remain continuously in effect until the effective
date of their permanent adoption.
PROPOSED REPEAL OF PART 101 AND AMENDMENT OF
SECTIONS 100.2, 200.1, THROUGH 200.7, 200.14, 200.16, 201.2 THROUGH 201.5 AND
201.7 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 AND CHAPTERS 119
AND 352 OF THE LAWS OF 2005, 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 federal Individuals with Disabilities
Education Act (IDEA), as amended by Public Law 108-446, and to Chapter 352 of
the Laws of 2005. IDEA was
reauthorized in December 2004 and most of its provisions became effective July
1, 2005. Chapter 352 of the Laws of
2005, effective July 1, 2005, amended the Education Law to ensure that the State
will be in compliance with the provisions of the reauthorized IDEA in the
2005-2006 school year.
A Notice of
Proposed Rule Making was published in the State Register on June 8, 2005. Since its publication, the proposed
amendment has been substantially revised in response to public comment and
adopted through emergency action by the Board of Regents, effective September
13, 2005. A Notice of
Emergency Adoption and Proposed Rule Making was published in the State Register
on September 28, 2005.
The proposed
amendment was adopted as a permanent rule at the December 8-9, 2005 meeting of
the Board of Regents, which is the first scheduled meeting after expiration of
the 45-day public comment period mandated by the State Administrative Procedure
Act. Pursuant to SAPA section
202(5), the permanent adoption cannot become effective until after its
publication in the State Register on December 28, 2005. However, the September emergency
adoption will expire on December 11, 2005, 90 days after its filing with the
Department of State on September 13, 2005.
A second emergency adoption is therefore necessary for the preservation
of the general welfare to ensure that the amendment remains continuously in
effect until the effective date of its adoption as a permanent rule.
Emergency action to adopt the proposed rule is necessary for the
preservation of the general welfare in order to ensure that the
amendments previously adopted by emergency action to conform the
Commissioner's Regulations to the requirements of the federal IDEA, as amended
by Public Law 108-446 and Chapter 352 of the Laws of 2005, remain continuously
in effect until the effective date of their adoption as a permanent rule, 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.
PROPOSED REPEAL OF PART 101 AND AMENDMENT OF
SECTIONS 100.2, 200.1 THROUGH 200.7, 200.14, 200.16, 201.2 THROUGH 201.5 AND
201.7 THROUGH 201.11 OF THE REGULATIONS OF THE COMMISSIONER OF EDUCATION
PURSUANT TO SECTIONS 207, 3208, 3209, 3214, 302-C, 3713, 4002, 4308, 4355, 4401,
4402, AS AMENDED BY CHAPTER 408 OF THE LAWS OF 2002, 4403, 4404, 4404-a AND 4410
OF THE EDUCATION LAW CHAPTERS 119 AND 352 OF THE LAWS OF 2005, RELATING TO THE
PROVISION OF SPECIAL EDUCATION PROGRAMS AND SERVICES TO STUDENTS WITH
DISABILITIES
ASSESSMENT OF PUBLIC
COMMENT
Since publication of a Notice of Emergency Adoption and Revised Rule
Making in the State Register on September 28, 2005, the State Education
Department received the following comments.
1.
COMMENTS:
Parent member. The
regulations should be revised to require the additional parent member of the
Committee on Special Education (CSE) or Committee on Preschool Special Education
(CPSE) to attend a meeting only when requested by the parent.
DEPARTMENT RESPONSE:
Sections 4402 and 4410 of the Education Law require that the additional
parent member of the CSE and CPSE attend the meeting unless the parent of the
student declines the participation of the additional parent member. The Regulations of the Commissioner
cannot be revised to address this recommendation without statutory
authority.
2.
COMMENTS:
Related
services. Support was noted for
the addition of “early identification and assessment of disabling conditions in
students” in the proposed definition of related services.
The proposed
definition of “health services,” should be revised to recognize that mental
health services are a critical component in the array of health services schools
may offer to their students, especially students with disabilities, in order to
ensure that they receive a free appropriate public education in the least
restrictive environment.
DEPARTMENT RESPONSE:
Because of the nature of the first comment, no response is
necessary. No changes have been
made to the definition of “health services” since the current definition of
related services includes psychological services.
3.
COMMENTS:
Initial
evaluation. The addition of a
60 calendar day time period to complete the initial evaluation and eligibility
determination should be deleted from the proposed regulations, since this would
lengthen the time to evaluate, determine eligibility and provide services,
leaving students without the appropriate supports for a longer time frame.
The proposed
regulations should be revised to establish a maximum time period not to exceed
15 days beyond the 60 calendar day time period for a student who enrolls in a
school served by the school district after the 60 calendar day time period
begins.
DEPARTMENT RESPONSE:
Under the proposed regulation,
the school must complete the initial evaluation and make the determination of
whether the student has a disability within 60 calendar days for a school age
student (30 school days for a preschool age child). The requirement that the school age
student receive services as recommended on his or her IEP within 60 school days
has been retained. Therefore, the
proposed timeline to complete the initial evaluation establishes a maximum
period of time allowed for the completion of the initial evaluation and should
expedite, rather than delay, the provision of services to students. The proposed regulations were not
revised to add a maximum extension time period of 15 calendar days beyond the 60
calendar days for transfer students, since federal law allows the parent and
school district to reach an agreement on the specific time for the
extension.
4.
COMMENTS:
Reevaluations. One organization opposed the proposed
regulatory amendment to section 200.4(c)(4) stating that the current requirement
that an evaluation be done greatly assists the process of coordinating services
with the adult system. Many adult
services require formal evaluations to determine eligibility. Without this evaluation, the transition
to postsecondary goals is much more difficult.
DEPARTMENT RESPONSE:
The regulations that were in effect prior to the revised emergency
regulations did not require that a reevaluation be conducted when a student’s
eligibility for special education services is ending because of graduation or
aging out. The proposed regulation,
which is consistent with IDEA, does not propose a change to the reevaluation
requirement, but does propose to add an additional requirement for a summary of
performance.
5.
COMMENTS:
Individualized Education
Program (IEP). Support was
noted for the requirement that present levels of performance and IEP
recommendations consider a student’s “academic, developmental and functional
needs” since many students with social, behavioral and emotional disabilities
experience deficits in functional performance and these requirements will assure
realistic and meaningful supports and services that will improve educational
performance in school and increase students’ successful transitions to adult
life.
Support was
given for proposed language in section 200.4(d), which requires the recommended
programs and services on a student’s IEP to be, to the extent practicable, based
on peer-reviewed research, since research-based practices based on peer review
will ensure that children are receiving quality services.
DEPARTMENT RESPONSE:
Because of the
nature of these comments, no response is necessary.
6.
COMMENTS:
IEP
Goals. The Department should
not eliminate the requirement for short-term objectives and benchmarks since
annual goals on IEPs are often written to require “improvement,” which is a
subjective term. Special education
teachers need the guidance of short-term objectives in order to design
appropriate methods to help students with disabilities.
DEPARTMENT RESPONSE:
The proposed regulations have been written
to ensure that the annual goals on a student’s IEP be measurable and to require
each annual goal to include the evaluative criteria, evaluation procedures and
schedules to be used to measure progress toward the annual goal. An annual goal that simply identifies
“improvement” without providing a clear statement as to the extent of
improvement anticipated would not meet the regulatory requirements in section
200.4(d).
7.
COMMENTS:
Transition
services. The proposed
requirement that transition services be on the IEP to be in effect when the
student is age 15 (and at a younger age, if determined appropriate) was
supported, since early delivery of transition services is likely to increase
successful transitions of youth with disabilities to post school activities.
The Department
should consider requiring transition planning and services to begin at the
younger age of 13 to precede the student’s choice of high school.
Proposed
language in section 200.4(d) which would add “appropriate measurable
postsecondary goals based upon age appropriate transition assessments relating
to training, education, employment and, where appropriate, independent living
skills…” was supported with the comment that utilizing assessment tools to
create appropriate measurable postsecondary goals will ensure that youth have
access to meaningful services and supports.
DEPARTMENT RESPONSE:
Because of the nature of the first and third comments, no response is
necessary.
No revisions to the proposed regulations
were made to lower the age to 13, since the proposed retains the authority of
the CSE to determine if transition services should be provided at a younger
age.
8.
COMMENTS:
Changes to the IEP after the annual review meeting. The regulations should be revised to
allow the parent, special education teacher, regular education teacher and local
educational agency representative to agree to make changes to an IEP after the
annual review. For one school
district, this was calculated to result in approximately 867 hours of
instructional time that could otherwise be spent with students and approximately
$3,600 annually in costs for substitute teachers.
Section 200.4(g) should be revised to state that “the
parent shall receive prior written notice of any CSE meeting to discuss proposed
changes to the IEP” rather than requiring prior written notice.
Proposed
language in section 200.4(g) suggests that CSEs may amend IEPs without giving
parents a chance to attend the meeting.
This regulation should be revised to clarify that a CSE meeting is
required prior to making changes to the IEP after the annual review meeting.
DEPARTMENT RESPONSE:
The proposed regulation has not been revised to allow the parent and
school personnel to amend the IEP without a CSE or CPSE meeting since NYS law
continues to require that the IEP recommendations only be made in a meeting of
the CSE or CPSE. The regulations
cannot be revised without statutory authority.
No changes to
the proposed language in section 200.4(g) have been made since the proposed
language is intended to reinforce the requirement that the parent be provided
written prior notice of any proposed revisions to an IEP that are made after the
annual review meeting, irrespective of the CSE’s decision to amend the IEP
without rewriting it.
9.
COMMENTS:
Consent. The proposed
regulation implies that the procedures for obtaining consent for a student who
is a ward of the State only apply when consent is being sought for an initial
evaluation. The procedures for
obtaining consent for a ward of the State should apply to all circumstances
where parental consent is required, not just to circumstances involving consent
for initial evaluations.
There is confusion about the steps that the school district must take to
locate a parent or determine whether it is necessary to appoint a surrogate
parent for a student who is a ward of the State. The proposed language in section
200.5(b)(5) should be revised to state that reasonable efforts to obtain the
informed consent from the parent of a child who is a ward of the State must
include consultation with the local department of social services or other
agency responsible for the care of the child when the child is a ward of the
State.
The proposed regulations should be revised to ensure that a school
district consult with the local social services district where appropriate to
determine the need for the appointment of a surrogate parent prior to
determining that a student’s parent has “failed to respond” to a consent for
services.
DEPARTMENT RESPONSE:
No changes to the proposed regulation relating to initial evaluations and
parent consent have been made since the regulation conforms to federal
requirements to provide an expedited process so as not to delay the initial
evaluation of a student who is a ward of the State when the parent of the
student cannot be located. Proposed
language in section 200.5(n) clearly states that the school district must
consult with the local social services district or other agency responsible for
the care of the student.
10. COMMENTS:
Surrogate Parents.
The proposed language in section 200.5(n) should be revised to state that
a foster parent shall not be prohibited from serving as a surrogate parent for a
child in his or her care solely because the foster parent is an officer,
employee or agency of the local school district of the State Education
Department or other agency involved in the education or care of the student.
Children who need surrogate parents often experience inordinate delays
during the referral and evaluation process. State regulations should be revised to
establish a 10-day timeline within which a board of education must make a
determination as to whether a surrogate parent is necessary.
DEPARTMENT RESPONSE:
Section 200.1(ii) states that a foster parent could be the parent of the
student. The limitation on the
private or public agency individual applies to the individual appointed by
judicial decree and to an individual who is appointed as a surrogate parent
pursuant to section 200.5(n).
Therefore, no changes to the proposed regulations have been made.
11. COMMENTS:
Transfer students.
The regulations should be revised to require that a student’s records be
requested within five days of the student’s enrollment and that the prior
district respond to that request within five days of receipt of a request for
records.
DEPARTMENT RESPONSE:
No changes to the proposed regulations have been made to add a specific
time period for schools to request and respond to requests for student records
since the proposed regulation is consistent with IDEA by requiring the school
district to take reasonable steps to promptly obtain and respond to requests for
student records.
12. COMMENTS:
Discipline. New York State should develop procedures
that will maintain and strengthen the protections for children with behavioral
disabilities in the original Individuals with Disabilities Education Act
(IDEA). The changes to the
disciplinary regulations put a greater burden on parents and may increase
behavior related removals of students.
Utilizing proactive approaches such as Children’s Systems of Care
Initiatives and Family Support Programs will allow children with social,
emotional and behavioral disabilities to participate in the communities and
schools without risk of removal and exclusion.
DEPARTMENT RESPONSE:
The proposed regulations are consistent with the requirements in IDEA for
the discipline of students with disabilities. The proposed regulations do strengthen
the protections for students with disabilities by requiring in section 200.6
that the school district identify appropriate interim alternative educational
settings and by requiring the
individual who represents the school district on the manifestation team to be an
individual who is knowledgeable about the student and the interpretation of
information about child behavior, which could be a school psychologist or other
professional with such qualifications.
Pursuant to
Education Law sections 207, 3208, 3209, 3212, 3214, 3602-c, 3713, 4002, 4308,
4355, 4401, 4402, 4403, 4404, 4404-a and 4410 and Chapters 119 and 352 of the
Laws of 2005
1.
Subparagraph (iv) of paragraph (4) and subparagraphs (i), (iii) and (iv) and (xvii) of paragraph
(7) of subdivision (x) of section 100.2 are amended, effective December 29,
2005, as follows:
(iv)
immediately contact the school district where the child’s records are
located for a copy of such records and coordinate the transmittal of records
for students with disabilities consistent with section 200.4(e)(8)(iii) of this
Title;
(i)
Enrollment. Each school
district shall:
(a)
ensure that homeless children and youth are not segregated in a separate
school, or in a separate program within a school, based on their status as
homeless; [and]
(b)
to the extent feasible and consistent with the requirements of paragraphs
(2) and (4) of this subdivision, keep a homeless child or youth in the school of
origin except when doing so is contrary to the wishes of the child’s or youth’s
parent or guardian; and
(c)
a student with a disability as defined in section 200.1(zz) of this
Title, who transfers school districts within the same academic year, is provided
with a free appropriate public education, including services comparable to those
described in the previously held individualized education program (IEP) pursuant
to section 200.4(e)(8) of this Title.
(e)
Assistive technology device means any item, piece of equipment, or
product system, whether acquired commercially off the shelf, modified, or
customized, that is used to increase, maintain, or improve the functional
capabilities of a student with a disability. Such term does not include a medical
device that is surgically implanted, or the replacement of such a
device.
(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(i)(3)(vii)] 200.5(j)(3)(vii) 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(j)] 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(i)(3)(ix)] 200.5(j)(3)(ix) of this Part.
(t)
General curriculum means the same general education curriculum as
for students without disabilities.
(x)
Impartial hearing officer means an individual assigned by a board of
education pursuant to Education Law, section 4404(1), or by the commissioner in
accordance with section 200.7(d)(1)(i) of this Part, to conduct a hearing and
render a decision. [Commencing July
1, 1996, no] No individual employed by a school district, school or
program serving students with disabilities placed there by a school district
committee on special education may serve as an impartial hearing officer and no
individual employed by such schools or programs may serve as an impartial
hearing officer for two years following the termination of such employment,
provided that a person who otherwise qualifies to conduct a hearing under this
section shall not be deemed an employee of the school district, school or
program serving students with disabilities solely because he or she is paid by
such schools or programs to serve as an impartial hearing officer. An impartial hearing officer
shall:
(1) .
. . .
(2) .
. . .
(3) .
. . .
(4)
be certified by the commissioner as an impartial hearing officer eligible
to conduct hearings pursuant to Education Law, section 4404(1) and subject to
suspension or revocation of such certification by the commissioner for good
cause in accordance with the provisions of section 200.21 of this Part. In order to obtain and retain such a
certificate, an individual shall:
(i)
. . . .
(ii)
attend such periodic update programs as may be scheduled by the
commissioner; [and]
(iii)
[commencing July 1, 2002,] annually submit, in a format and by a date
prescribed by the commissioner, a certification that the impartial hearing
officer meets the requirements of paragraphs (1), (2) and (3) of this
subdivision[.];
(iv)
possess knowledge of, and the ability to understand, the provisions of
federal and State law and regulations pertaining to the Individuals with
Disabilities Education Act and legal interpretations of such law and regulations
by federal and State courts; and
(v)
possess knowledge of, and the ability to conduct hearings in accordance
with appropriate, standard legal practice and to render and write decisions in
accordance with appropriate standard legal practice.
(dd) Mediator
means a qualified and impartial individual who is trained in effective mediation
techniques to resolve disputes in accordance with Education Law, section 4404-a
and 200.5(h) of this Part and who is knowledgeable in laws and regulations
relating to the provision of special education services. An individual who serves as a mediator
may not have a personal or professional interest which would conflict with his
or her objectivity in the mediation process and may not be an employee of a
State educational agency that is providing direct services to a student who is
the subject of the mediation process or a school district or program serving
students with disabilities, provided that a person who otherwise qualifies to
conduct mediation under section 200.5(h) of this Part shall not be deemed an
employee of the State, a school district, school or a program serving students
with disabilities solely because he or she is paid by a community dispute
resolution center through grant funds provided by the State Education Department
to serve as a mediator.
(ii)
(1) Parent means a
[natural] birth or adoptive parent, a guardian, 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(m)] 200.5(n) of this
Part. The term does not include the
State if the student is a ward of the State.
(2)
A foster parent may act as a parent [if the natural parent's authority to
make educational decisions on the student's behalf has been extinguished under
State law; and the foster parent has an ongoing, long-term parental relationship
with the student; is willing to make the educational decisions required of
parents; and has no interest that would conflict with the interests of the
student] unless State law, regulations or contractual obligations with a
State or local entity prohibit the foster parent from acting as a
parent.
(3)
Except as provided in subparagraph (4) of this paragraph, when one or
more than one party is qualified under paragraph (1) of this section to act as a
parent, the birth or adoptive parent must be presumed to be the parent unless
the birth or adoptive parent does not have legal authority to make educational
decisions for the student.
(4)
If a judicial decree or order identifies a specific person or persons to
act as the parent or make educational decisions on behalf of the student, then
such person or persons shall be determined to be the parent for purposes of this
Part, except that a public agency that provides education or care for the
student, or a private agency that contracts with a public agency for such
purposes, shall not act as the parent.
(oo) Prior written notice means written statements
developed in accordance with section 200.5(a) of this Part, and provided 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, or educational placement of the student or the provision of a free
appropriate public education to the student.
(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, [appropriate access to
recreation] 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.
(ss) School
health services means nursing 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.
(ww) Special education
means specially designed individualized or group instruction or special services
or programs, as defined in subdivision 2 of section 4401 of the Education Law,
and special transportation, provided at no cost to the parent, to meet the
unique needs of students with disabilities.
(1) .
. . .
(2) .
. . .
(3)
For purposes of this definition:
(i)
The individual needs of a student shall be determined by a committee on
special education in accordance with the provisions of section 200.4 of this
Part upon consideration of the present levels of performance and expected
learning outcomes of the student.
Such individual-need determinations shall provide the basis for written
annual goals, direction for the provision of appropriate educational programs
and services and development of an individualized education program for the
student. The areas to be considered
shall include:
(a)
academic [or educational] achievement, functional performance and
learning characteristics which shall mean the levels of knowledge and
development in subject and skill areas, including activities of daily living,
level of intellectual functioning, adaptive behavior, expected rate of progress
in acquiring skills and information, and learning style;
(b) .
. . .
(c) .
. . .
(d) .
. . .
(ii)
. . . .
(zz)
Student with a disability means a student with a disability as defined in
section 4401(1) of the 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) 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. [A student who exhibits a discrepancy of
50 percent or more between expected achievement and actual achievement
determined on an individual basis shall be deemed to have a learning
disability.]
(7) .
. . .
(8) .
. . .
(9) .
. . .
(10) . . .
.
(11) . . .
.
(12) . . .
.
(13) . . .
.
(ccc) Surrogate parent
means a person appointed to act in place of parents or guardians when a
student's parents or guardians are not known, or when after reasonable efforts,
the board of education cannot discover the whereabouts of a parent, the
student is an unaccompanied homeless youth or the student is a ward of the
State and does not have a parent who meets the definition in subdivision (ii)
of this section, or the rights of the parent to make educational decisions have
been subrogated by a judge in accordance with State
law.
(fff)
Transition Services means a coordinated set of activities for a student
with a disability, designed within [an outcome-oriented] a
results-oriented process that [promotes movement] 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 [training]
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)
[if] when appropriate, acquisition of daily living skills and
functional vocational evaluation.
(hhh) Homeless youth
means the same as the term ‘homeless child’ as defined in section 100.2(x) of
this Title.
(iii)
Limited English proficient student means the same as the term ‘pupils
with limited English proficiency’ as defined in section 154.2(a) of this
Title.
(jjj)
Universal design means a concept or philosophy for designing and
delivering products and services that are usable by people with the widest
possible range of functional capabilities, which include products and services
that are directly usable (without requiring assistive technologies) and products
and services that are made usable with assistive
technologies.
(kkk) Ward of the
State means a child or
youth under the age of twenty-one:
(1)
who has been
placed or remanded pursuant to section 358-a, 384 or 384-a of the Social
Services Law, or article 3, 7, or 10 of the Family Court Act, or freed for
adoption pursuant to section 383-c, 384 or 384-b of the Social Services
Law;
or
(2)
who is in the
custody of the Commissioner of Social Services or the Office of Children and
Family Services;
or
(3)
who is a
destitute child under section 398(1) of the Social Services Law.
5.
Subdivisions (a), (b), (d), (e), (h) and (i) of section 200.2 of the
Regulations of the Commissioner of Education are amended, effective December 29,
2005, as follows:
(a)
Census and register of students with disabilities. (1) The board of education or trustees
of each school district shall conduct a census in accordance with Education Law,
sections 3240, 3241 and 3242, to locate and identify all students with
disabilities who reside in the district and shall establish a register of such
students who are entitled to attend the public schools of the district or are
eligible to attend a preschool program in accordance with section 4410 of the
Education Law during the next school year, including students with
disabilities who are homeless or who are wards of the State. The register of such students and others
referred to the committee as possibly having a disability shall be maintained
and revised annually by the district committee on special education or the
committee on preschool special education, as appropriate. Procedures shall be implemented to
assure the availability of statistical data to readily determine the status of
each student with a disability in the identification, location, evaluation,
placement and program review process.
Census data shall be reported by October 1st to the committee on special
education or committee on preschool special education, as
appropriate.
(2)
Data requirements. (i) Procedures shall be designed to record data on
each student, and shall include at least the following types of
data:
(a) .
. . .
(b) .
. . .
(c) .
. . .
(d) .
. . .
(e)
site where the student is currently receiving an educational program;
[and]
(f)
other student information as required by the Individuals with
Disabilities Education Act (20
U.S.C. 1400 et. seq.) and federal regulations, including but not limited to the
student’s race, ethnicity, limited English proficiency status, gender and
disability category;
[(f)] (g)
. . . .
(ii)
. . . .
(3) .
. . .
(4)
Data reporting. The
reporting of data shall be conducted in accordance with the following policies
and procedures:
(i)
. . . .
(ii)
. . . .
(5) .
. . .
(6) .
. . .
(7)
[The procedures] Procedures to locate, identify, and evaluate all
nonpublic private elementary and secondary school students with
disabilities, including religious-school children [residing in the school
district,] 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
[comparable] 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 [board of
education] school district shall consult with [appropriate]
representatives of private [school students with disabilities, that may include
representatives of organizations of nonpublic school groups, selected parents of
students with disabilities enrolled in nonpublic schools and selected
representatives of the nonpublic schools in the school district, on how to carry
out the activities described in this section] schools and representatives of
parents of parentally placed private school students with disabilities on the
child find process. 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:
(1) .
. . .
(2) .
. . .
(3) .
. . .
(4) .
. . .
(5) . . . .
(6) .
. . .
(7) . . . .
(8) .
. . .
(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(i)] 200.5(j) of this Part;
[and]
(10) establishes
a plan [by July 1, 2002], 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 the 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;
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 nondisabled 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)
each regular education teacher, special education teacher, related
service provider and/or other service provider, as defined in clause (a) of this
subparagraph, who is responsible for the implementation of a student’s
individualized education program (IEP) is provided a paper or electronic copy of
such student’s IEP, including amendments to the IEP made pursuant to section
200.4(g) of this Part, prior to the implementation of such program:
(a) .
. . .
(ii)
. . . .
(iii) . . . .
(12) identifies the measurable steps it shall take to recruit, hire,
train and retain highly qualified personnel to provide special education
programs and services;
(13) describes
the guidelines for the provision of appropriate accommodations necessary to
measure the academic achievement and functional performance of the student in
the administration of districtwide assessments; and
(14)
identifies how the district, to the extent feasible, will use universal
design principles in developing and administering any districtwide assessment
programs.
(d)
Approval of services. (1)
Approval of services for students with disabilities. The board of education or board of
trustees of each school district shall, upon completion of its review of
the [IEP] recommendation of the committee on special education for special
education programs and services, including changes to the committee on special
education’s recommendation made pursuant to section 200.4(g) of this Part,
in accordance with section 200.4(e)(1) and (2) of this Part, arrange for the
appropriate special education programs and services to be provided to a student
with a disability as recommended by the committee on special education. The board shall notify the parent of its
action in accordance with section 4402(2)(b)(2) of the Education
Law.
(2)
Approval of services for preschool students with disabilities. The board of education or the board of
trustees of each school district shall, upon completion of the [IEP]
recommendation of the committee on preschool special education for special
education programs and services, including changes to the committee’s
recommendation made pursuant to section 200.4(g) of this Part, arrange for
appropriate special education programs and services for a preschool student with
a disability, as recommended by the committee on preschool special education,
from among the services and programs approved for such purpose by the
commissioner. The board shall
notify the parent, the municipality and the commissioner of its action in
accordance with section 4410 of the Education Law.
(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)
. . . .
(ii)
available to serve in the district in hearings conducted pursuant to
Education Law, section 4404(1). Appointment of impartial hearing officers
pursuant to Education Law, section 4404(1) shall be made only from such list and
in accordance with the rotation selection process prescribed herein and the
timelines and procedures in section [200.5(i)] 200.5(j) of this Part.
Such names will be listed in alphabetical order. Selection from such list shall
be made on a rotational basis beginning with the first name appearing after the
impartial hearing officer who last served or, in the event no impartial hearing
officer on the list has served, beginning with the first name appearing on such
list. Should that impartial hearing officer decline appointment, or if, within
24 hours, the impartial hearing officer fails to respond or is unreachable after
reasonable efforts by the district that are documented and can be independently
verified, each successive impartial hearing officer whose name next appears on
the list shall be offered appointment, until such appointment is accepted. The
name of any newly certified impartial hearing officer who is available to serve
in the district shall be inserted into the list in alphabetical order;
(2)
persons from whom the district shall choose a surrogate parent
pursuant to section 200.5(n) of this Part; and
(3) .
. . .
(h)
[Local comprehensive system of personnel development (CSPD) plan.] The board of education or trustees of
each school district and each board of cooperative educational services shall
[submit to the State Education Department annually, by a date prescribed by the
commissioner, a local CSPD] develop and implement a plan as part of
the professional development plan pursuant to section 100.2(dd) of this
Title [containing the information demonstrating that all personnel providing
services to students with disabilities are adequate as prescribed by the
commissioner. The CSPD plan]
that shall include, but is not [be] limited to, a description of
the professional development activities provided to all professional staff and
supplementary school personnel who work with students with disabilities to
assure that they have the skills and knowledge necessary to meet the needs of
students with disabilities. [A
school district or BOCES may include the local CSPD plan as part of the
professional development plan pursuant to section 100.2(dd) of the
commissioner’s regulations.]
(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 the 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;
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 nondisabled 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:
[(1)] (i) . . .
.
[(2)] (ii) . . .
.
[(3)] (iii) . . . .
[(4)] (iv) . . .
.
[(5)] (v) . . .
.
(2)
Responsibility to identify and take measurable steps to recruit, hire,
train and retain highly qualified personnel. Each BOCES shall identify and take steps
to recruit, hire, train and retain highly qualified personnel to provide special
education programs and services to students with disabilities served by the
BOCES.
6.
Section 200.3 of the Regulations of the Commissioner of Education is
amended, effective December 29, 2005, as follows:
(a)
Each board of education or board of trustees shall
appoint:
(1)
committees on special education in accordance with the provisions of
Education Law, section 4402, as necessary to ensure timely evaluation and
placement of students. The
membership of each committee shall include, but not be limited
to:
(i)
. . . .
(ii)
[at least] not less than one regular education teacher of the
student whenever the student is or may be participating in the regular education
environment;
(iii)
not less than one special education teacher of the student, or, if
appropriate, [a] not less than one special education provider of the
student;
(iv)
. . . .
(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;
(vi)
. . . .
(vii). . . .
(viii) an
additional parent member of a student with a disability residing in the school
district or a neighboring school district, provided that the additional
parent member may be the parent of a student who has been declassified within a
period not to exceed five years or the parent of a student who has graduated
within a period not to exceed five years. [such] Such parent is not a
required member if the parents of the student request that the additional parent
member not participate in the meeting;
(ix)
. . . .
(x) .
. . .
(2)
committees on preschool special education in accordance with provisions
of Education Law, section 4410 to implement the provisions of section 200.16 of
this Part. The membership of each
committee on preschool special education shall include, but not be limited
to:
(i)
. . . .
(ii)
[a] not less than one regular education teacher of the child
whenever the child is or may be participating in the regular education
environment;
(iii)
[a] not less than one special education teacher of the child, or,
if appropriate, [a] not less than one special education provider of the
child;
(iv)
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 preschool special education
programs and services and other resources of the school district and the
municipality. The representative of
the school district shall serve as the chairperson of the
committee;
(v) .
. . .
(vi)
. . . .
(vii) . . .
.
(viii) . . .
.
(ix)
. . . .
(b) .
. . .
(c)
The board of education in a city school district in a city having a
population in excess of 125,000 inhabitants shall appoint subcommittees on
special education to the extent necessary to ensure timely evaluation and
placement of students with disabilities.
Boards of education or trustees of any school district outside of a city
having a population in excess of 125,000 inhabitants may appoint subcommittees
on special education to assist the board of education in accordance with
Education Law, section 4402(1)(b)(1)(b) and the provisions of this
subdivision.
(1) .
. . .
(2)
The membership of each subcommittee shall include, but not be limited
to:
(i)
. . . .
(ii)
not less than one regular education teacher of the student
whenever the student is or may be participating in the regular education
environment;
(iii)
not less than one of the student’s special education [teacher]
teachers or, if appropriate, [a] not less than one special
education provider of the student;
(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;
(v) .
. . .
(vi)
. . . .
(vii) . . . .
(viii) . . . .
(3) .
. . .
(4) .
. . .
(5) .
. . .
(6) .
. . .
(d) .
. . .
7.
Section 200.4 of the Regulations of the Commissioner of Education is
amended, effective December 29, 2005 as follows:
(a) .
. . .
(1) . . .
.
(2) . . .
.
(3) . . .
.
(4) .
. . .
(5) .
. . .
(6) .
. . .
(7) .
. . .
(8)
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 is not obtained within 30 days of the date of receipt of referral, the
chairperson shall document attempts made by the chairperson or other
representatives of the committee to obtain parental consent, and shall [request
that the board of education initiate an impartial hearing in accordance with
section 200.5(b)(1)(i)(c)] 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) .
. . .
(b)
Individual evaluation and reevaluation. (1) Unless a referral is withdrawn
pursuant to paragraph (a)(7) or (9) of this section, an individual evaluation of
the referred student shall be initiated by a committee on special education and
shall include a variety of assessment tools and strategies, including
information provided by the parent, to gather relevant functional, [and]
developmental and academic information about the student [and] 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)
. . . .
(v) .
. . .
(2) .
. . .
(3) .
. . .
(4) A
committee on special education shall arrange for an appropriate reevaluation of
each student with a disability if [conditions] 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 representative of
the school district appointed to the committee on special education agree
otherwise; and at least once every three years. 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
[reviewing] review and, as appropriate, [revising] 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.
(5)
Determination of needed evaluation data.
(i)
As part of an initial evaluation, if appropriate, and as part of any
reevaluation in accordance with section 200.4(b)(4) of this Part, a group that
includes the committee on special education, and other qualified professionals,
as appropriate, shall review existing evaluation data on the student,
including evaluations and information provided by the parents of the student,
current classroom-based assessments, local or State assessments, [and]
classroom-based observations, and observations by teachers and related
services providers. The group may
conduct its review without a meeting.
(ii)
On the basis of that review, and input from the student’s parents, the
committee on special education and other qualified professionals, as
appropriate, shall identify what additional data, if any, are needed to
determine:
(a)
whether the student has a [particular category of] disability as
defined in section 200.1(mm) or (zz) of this Part, or, in the case of a
reevaluation of a student, whether the student continues to have such a
disability;
(b)
the present levels of [performance] academic achievement and
related [educational] developmental needs of the student,
including the four areas listed in section 200.1(ww)(3)(i) of this
Part;
(c) .
. . .
(d) .
. . .
(iii)
. . . .
(iv)
If additional data are not needed, the school district must notify the
parents of that determination and the reasons for it and of the right of the
parents to request an assessment to determine whether, for purposes of services
under this Part, the student continues to be a student with a disability and
to determine the student’s educational needs. The school district is not required to
conduct the assessment unless requested to do so by the student’s parents.
(6)
School districts shall ensure that:
(i)
[tests and other assessment procedures] assessments and other
evaluation materials used to assess a student under this
section:
(a)
are provided and administered in the student’s native language or other
mode of communication and in the form most likely to yield accurate
information on what the student knows and can do academically, developmentally
and functionally, unless it is clearly not feasible to [do] so provide or
administer;
(b)
[have been validated for the specific purpose for which they are used]
are used for purposes for which the assessments or measures are valid and
reliable;
(c) are
administered by trained and knowledgeable personnel in accordance with the
instruction provided by those who developed such [tests or procedures]
assessments; and
(d)
are selected and administered so as not to be [racially or
culturally] discriminatory on a racial or cultural
basis;
(ii)
. . . .
(iii)
tests and other [assessment procedures] 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)
. . . .
(v)
no single [procedure] measure or assessment is used as the sole
criterion for determining whether a student is a student with a disability [and]
or for determining an appropriate educational program for a
student;
(vi)
. . . .
(vii) . . . .
(viii) . . . .
(ix)
. . . .
(x) .
. . .
(xi)
. . . .
(xii) the
results of the evaluation are provided to the parents [or persons in parental
relationship] in their native language or mode of communication, unless it is
clearly not feasible to do so;
(xiii) . . . .
(xiv) . . . .
(xv) the
procedures for conducting expedited evaluations are conducted pursuant to Part
201 of this Title; [and]
(xvi) materials
and procedures used to assess a student with limited English proficiency are
selected and administered to ensure that they measure the extent to which the
student has a disability and needs special education, rather than measure the
student's English language skills[.] ; and
(xvii) assessments
of students with disabilities who transfer from one school district to another
school district in the same academic 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)
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 to a specific time when the
evaluation will be completed; or
(ii)
the parent of a student repeatedly fails or refuses to produce the
student for the evaluation.
(8)
The screening of a student by a teacher or specialist to determine
appropriate instructional strategies for curriculum implementation shall not be
considered to be an evaluation for eligibility for special
education.
(9)
No student shall be required to obtain a prescription for a drug or other
substance identified under schedule I, II, III, IV, or V in section 202(c) of
the Controlled Substances Act (21 U.S.C. 812(c)) as a condition of receiving an
evaluation under this Part (United States Code, 2000 edition, volume 11;
Superintendent of Documents, U.S. Government Printing Office, Stop SSOP,
Washington, D.C. 20402-0001; available at the Office of Vocational and
Educational Services for Individuals with Disabilities, Room 1624, One Commerce
Plaza, Albany, NY 12234).
(c)
Eligibility Determinations
(1) .
. . .
(2) A
student [may] shall not be determined [to be] eligible for special
education if the determinant factor [for that eligibility determination]
is:
(i) lack of
appropriate instruction in reading, including explicit and systematic
instruction in phonemic awareness, phonics, vocabulary development, reading
fluency (including oral reading skills) and reading comprehension
strategies;
(ii)
lack of instruction in [or] math; or
(iii)
limited English proficiency.
(3) A
school district must evaluate a student with a disability prior to determining
that the student is no longer a student with a disability, in accordance with
paragraph (b)(4) of this section, and the school district must provide a copy of
the evaluation report and the documentation of eligibility to the student's
parent.
(4)
A school district is not required to conduct a reevaluation of a student
before the termination of a student's eligibility due to graduation with a local
high school or Regents diploma or exceeding the age eligibility for a free
appropriate public education but is required to provide such student with a
summary of the student's academic achievement and functional performance, which
shall include recommendations on how to assist the student in meeting his or her
postsecondary goals.
[(4)] (5) . . . .
(6)
Learning disabilities. In
determining whether a student has a learning disability as defined in section
200.1(zz)(6) of this Part, 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.
[Individualized education program (IEP).] 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 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 development of a recommendation, the committee shall ensure that
the appropriateness of the 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 [must] shall
develop an [individualized education program (IEP)] IEP. 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 districtwide assessment programs;
and any special considerations in paragraph (3) of this subdivision. The recommendation shall include the
following:
(i)
Present levels of performance.
The IEP shall report the present levels of academic achievement
and functional performance and indicate the individual needs of the student
according to each of the four areas listed in section [200.1(ww)]
200.1(ww)(3)(i) of this Part, including:
(a)
how the student’s disability affects involvement and progress in the
general education curriculum; or
(b)
for preschool students, as appropriate, how the disability affects the
student’s participation in appropriate activities[; or].
[(c) for
students age 15 (and at a younger age, if determined appropriate), a statement
of the student's needs, taking into account the student's preferences and
interests, as they relate to transition from school to post-school activities as
defined in section 200.1(fff);]
(ii)
Disability classification.
The IEP shall indicate the classification of the disability
pursuant to section 200.1(mm) or (zz) of this Part.
(iii)
Measurable annual goals.
(a) The IEP shall list measurable annual goals, consistent with the
student's needs and abilities[, including benchmarks or short-term instructional
objectives and evaluative criteria, evaluation procedures and schedules to be
used to measure progress toward the annual goals and to be followed during the
period beginning with placement and ending with the next scheduled review by the
committee. Such benchmarks or
short-term instructional objectives shall be measurable, intermediate steps
between present levels of educational performance and the annual goals that are
established for a student with a disability]. The measurable annual goals, including
benchmarks and short-term objectives, must relate to:
[(a)] (1) meeting the
student's needs that result from the student's disability to enable the student
to be involved in and progress in the general education curriculum;
and
[(b)] (2) meeting
each of the student's other educational needs that result from the student's
disability;
(b)
Each annual goal shall include the evaluative criteria, evaluation
procedures and schedules to be used to measure progress toward meeting the
annual goal during the period beginning with placement and ending with the next
scheduled review by the committee.
(c)
The IEP shall identify when periodic reports on the progress the student
is making toward the annual goals (such as through the use of quarterly or other
periodic reports that are concurrent with the issuance of report cards) will be
provided to the student’s parents.
(iv)
Short-term instructional objectives and benchmarks. For a student who takes a New York State
alternate assessment and for each preschool student with a disability, the IEP
shall include a description of the short-term instructional objectives and/or
benchmarks that are the measurable intermediate steps between the student’s
present level of performance and the measurable annual
goal.
(v)
Special education program and services. (a) The IEP shall indicate the
recommended special education program and services as defined in sections
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) of this Part[; the class size, if appropriate; the
supplementary aids and services to be provided to the student, or on behalf of
the student; and a statement of the program modifications or supports for school
personnel] that will be provided for the student:
[(a)] (1) to advance appropriately toward attaining the annual
goals;
[(b)] (2) to be involved and progress in the general
education curriculum and to participate in extracurricular and other
nonacademic activities; and
[(c] (3)) to be educated and participate with other students with
disabilities and nondisabled students in the activities described in this
section[;].
[(v)] (b) The recommended
program and services shall, to the extent practicable, be based on peer-reviewed
research, and as appropriate indicate:
(1)
the regular education classes in which the student will receive
consultant teacher services;
(2)
the class size, as defined in section 200.1(i) of this Part, if
appropriate;
(3)
the supplementary aids and services and program modifications to be
provided to the student or on behalf of the student;
(4)
a statement of supports for school personnel on behalf of the
student;
(5)
the extent to which the student's parents will receive parent counseling
and training as defined in section 200.1(kk) of this Part, when
appropriate;
(6)
any assistive technology devices or services needed for the student to
benefit from education, including the use of such devices in the student’s home
or in other settings;
(7)
the anticipated frequency, duration and location and, for a preschool
student with a disability, the intensity for each of the recommended programs
and services, including the supplementary aids and services and program
modifications to be provided to or on behalf of the
student;
(8)
if the recommendation for a preschool student is for one or more related
services selected from the list maintained by the municipality, or itinerant
services, the child care location arranged by the parent or other site at which
each service shall be provided; and
(9)
the projected date for initiation of the recommended special education
program and services.
(vi)
Testing accommodations. The
IEP shall provide a statement of any individual testing accommodations to be
used consistently by the student in the recommended educational program and in
the administration of districtwide assessments of student achievement and, in
accordance with department policy, State assessments of student achievement that
are necessary to measure the academic achievement and functional performance of
the student.
[(vi)] (vii)
Participation in State and districtwide assessments. [indicate
if] If the student will
[not] participate in an alternate assessment on a particular State or
[local] districtwide [assessments (or part of an assessment), why the
assessment is not appropriate for the student and how the student will be
assessed] assessment of student achievement, the IEP shall provide a
statement of why the student cannot participate in the regular assessment and
why the particular alternate assessment selected is appropriate for the
student.[;]
[(vii)] (viii) Participation in regular programs. The IEP shall
provide:
(a)
an explanation of the extent, if any, to which the student will not
participate in the regular education programs; or
(b)
for preschool students, an explanation of the extent, if any, to which
the student will not participate in appropriate activities with age-appropriate
nondisabled peers;
(c)
identify if the provision of IEP services for a preschool child with a
disability will be in a setting with no regular contact with age-appropriate
peers without disabilities; and
(d)
if a student is not participating in a regular physical education
program, the extent to which the student will participate in specially-designed
instruction in physical education, including adapted physical
education[;].
[(viii) provide for those students age 14 and updated annually, a
statement of the transition service needs of the student under applicable
components of the student's IEP that focuses on the student's courses of study,
such as participation in advanced-placement courses or a vocational education
program;]
(ix)
Transition services. [provide, for] For those students
beginning not later than the first IEP to be in effect when the student
is age 15 (and at a younger age, if determined appropriate), and updated
annually, the IEP shall, under the applicable components of the student’s IEP,
include: [a statement of the student's projected post-school outcomes, based
on the student's needs, preferences, and interests, in the areas of employment,
post secondary education, and community living and a statement of the needed
transition services as defined in section 200.1(fff) of this Part,
including]
(a)
under the student’s present levels of performance, a statement of the
student's needs, taking into account the student's strengths, preferences and
interests, as they relate to transition from school to post-school activities as
defined in section 200.1(fff) of this Part;
(b) appropriate
measurable postsecondary goals based upon age appropriate transition assessments
relating to training, education, employment and, where appropriate, independent
living skills;
(c)
a statement of the transition service needs of the student that focuses
on the student's courses of study, such as participation in advanced-placement
courses or a vocational education program;
(d)
needed activities to facilitate the student’s movement from school to
post-school activities, including instruction, related services, community
experiences, the development of employment and other post-school adult living
objectives and, when appropriate, acquisition of daily living skills and
functional vocational evaluation; and
(e)
a statement of the responsibilities of the school district and, when
applicable, participating agencies for the provision of such services and
activities that promote movement from school to postschool opportunities, or
both, before the student leaves the school setting. [Needed activities shall be provided in
each area specified in section 200.1(fff)(1) through (4) and, as appropriate,
(5) of this Part;]
(x)
[provide a statement of how the student's parents will be regularly
informed of their child's progress, at least as often as parents are informed of
their nondisabled student's progress, toward the annual goals and the extent to
which that progress is sufficient to enable the student to achieve the goals by
the end of the year; (xi)] 12-month services. For students eligible for 12-month
service and/or program, the IEP shall indicate the [projected date for
initiation of special education and related services and supplementary aids and
services, the frequency, location and duration of such services, whether the
student is eligible for a 12-month special service and/or program and the]
identity of the provider of services during the months of July and August,
and, for preschool students determined by the committee on preschool special
education to require a structured learning environment of 12 months duration to
prevent substantial regression, a statement of the reasons for such
recommendation.
(xi)
Projected date of annual review. The IEP shall indicate the projected
date of the review of the student's need for such
services[;].
(xii)
[describe any assistive technology devices or services needed for the
student to benefit from education;
(xiii) provide a
statement of any individual testing accommodations to be used consistently by
the student in the recommended educational program and in the administration of
district-wide assessments of student achievement and, in accordance with
department policy, State assessments of student achievement that are needed in
order for the student to participate in the assessment;
and
(xiv)]
Placement. The IEP
shall indicate the recommended placement.
(3)
Consideration of special factors.
The CSE shall:
(i)
in the case of a student whose behavior impedes his or her learning or
that of others, consider[, when appropriate,] strategies, including positive
behavioral interventions and supports and other strategies to address
that behavior;
(ii)
. . . .
(iii)
. . . .
(iv)
. . . .
(v) .
. . .
(vi)
. . . .
(4)
Such recommendations shall:
(i)
be developed in meetings of the committee on special
education.
(a) .
. . .
(b) .
. . .
(c) .
. . .
(d)
when conducting a meeting of the committee on special education, the
parent and the representative of the school district appointed to the committee
on special education may agree to use alternative means of meeting
participation, such as videoconferences and conference
calls.
(ii)
be developed in conformity with the least restrictive environment
provisions of this Part.
(a) . . . .
(b) . . .
.
(c) . . . .
(d) a student with a disability must not be removed from
education in age-appropriate regular classrooms solely because of needed
modifications in the general education curriculum.
(5) .
. . .
(6) .
. . .
(e)
IEP implementation. (1) Within 60 school days of the receipt of
consent to evaluate for a student not previously identified as having a
disability, or within 60 school days of the referral for review of the student
with a disability, the board of education shall arrange for appropriate special
programs and services, except that if such recommendation is for placement in an
approved in-state or out-of-state private school, the board shall arrange for
such programs and services within 30 school days of the board's receipt of the
recommendation of the committee.
(i)
. . . .
(ii)
The school district shall ensure that each student with a disability has
an IEP in effect at the beginning of each school year.
(2) .
. . .
(3)
The school district shall ensure that the recommendations on a student's
IEP, including changes to the IEP made pursuant to subdivision (g) of this
section, are implemented, including but not limited
to:
(i)
. . . .
(ii)
. . . .
(iii)
. . . .
(iv)
ensuring that a copy of the IEP is provided to the student's parents,
including a revised copy of the IEP at the parent's request with the amendments
developed pursuant to subdivision (g) of this section incorporated, at no
cost to the student's parents.
(4) .
. . .
(5) .
. . .
(6) .
. . .
(7)
The school district must provide special education and related services
to a student with a disability in accordance with the student's IEP and must
make a good faith effort to assist the student to achieve the annual
goals and, if appropriate, short-term instructional objectives or
benchmarks listed in the student's IEP.
(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 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 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)
Transmittal of Records. (a)
To facilitate the transition for a student described in this paragraph, the new
school district in which the student enrolls shall take reasonable steps to
promptly obtain the student's records, including the IEP and supporting
documents and any other records relating to the provision of special education
services to the student, from the previous school in which the student was
enrolled pursuant to 34 C.F.R. section 99.31(a)(2) (Code of Federal Regulations,
2004 edition, Superintendent of Documents, U.S. Government Printing Office, Stop
SSOP, Washington, DC 20402-0001: 2004 – available at the Office of Vocational
and Educational Services for Individuals with Disabilities, Room 1624, One
Commerce Plaza, Albany, NY 12234).
(b)
The previous school in which the student was enrolled shall take
reasonable steps to promptly respond to such request from the new
school.
(9)
The school district shall not require a student with a disability to
obtain a prescription for a drug or other substance identified under schedule I,
II, III, IV, or V in section 202(c) of the Controlled Substances Act (21 U.S.C.
section 812(c)) as a condition of receiving services under this Part (United
States Code, 2000 edition, volume 11; Superintendent of Documents, U.S.
Government Printing Office, Stop SSOP, Washington, D.C. 20402-0001: 2001 -
available at the Office of Vocational and Educational Services for Individuals
with Disabilities, Room 1624, One Commerce Plaza, Albany, NY 12234).
(f)
Annual review [and
reevaluation]. The individualized education program (IEP) of each
student with a disability shall be reviewed and, if appropriate, revised,
periodically but not less than annually to determine if the annual goals for
the student are being achieved. [(1)] Any meeting to develop, review or
revise the IEP of each student with a disability to be conducted by the
committee on special education or subcommittee thereof, pursuant to section
4402(1)(b)(2) of the Education Law, shall be based upon review of a student's
IEP and other current information pertaining to the student's performance.
(1)
Such review shall consider the following factors:
(i)
[consider] the strengths of the student[,];
(ii)
the concerns of the parents for enhancing the education of their
child[,];
(iii)
the results of the initial or most recent evaluation of the
student[,];
(iv)
as appropriate, the results of the student's performance on any
general State or district-wide assessment
programs[,];
(v)
the academic, developmental and functional needs of the
student;
(vi)
the special factors described in paragraph (d)(3) of this section[,];
and
(vii)
the educational progress and achievement of the student with a disability
and the student's ability to participate in instructional programs in regular
education and in the least restrictive environment[; and].
[(ii) upon
consideration of the factors in clause (a) of this paragraph, revise the IEP as
appropriate to address]
(2)
If appropriate, the IEP must be revised to
address:
[(a)] (i)
any lack of expected progress
toward the annual goals and in the general education curriculum or
participation in appropriate activities for preschool students with
disabilities, if appropriate;
[(b)] (ii)
the results of any reevaluation
conducted pursuant to this Part and any information about the student
provided to, or by, the parents;
[(c)] (iii) the student’s
anticipated needs;
[(d)] (iv)
or other matters, including a
student’s need for test accommodations and/or modifications and the student's
need for a particular device or service (including an intervention,
accommodation or other program) in consideration of the special factors
contained in paragraph (3) of subdivision (d) of this section in order for the
student to receive a free appropriate public education.
[(2)](3) . . . .
[(3)] (4) Upon
completion of the annual review, the committee on special education shall notify
the parent of the committee's recommendation in accordance with section
[200.5(a)(4)] 200.5(a) of this Part.
[(4) In
accordance with paragraph (b)(4) of this section, 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.]
(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)
the parent shall receive prior written notice of any changes to the IEP
pursuant to section 200.5(a) of this Part; and
(2)
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.
(h)
Requests to the committee on special education pursuant to section 4005
of the Education Law. (1). . .
.
(2) A
committee on special education which receives such a request
shall:
(i)
. . . .
(ii)
in the event that the parent does not grant consent or fails to
respond to a request for consent, [within five days after receipt of the
request for such consent,] the committee shall notify the board of education [of
the need to initiate a formal impartial hearing to be conducted pursuant to
section 200.5(i)] that they may utilize the 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;
(iii) . . . .
(iv)
. . . .
(3) .
. . .
[(h)] (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) .
. . .
(4) .
. . .
(5) .
. . .
8.
Section 200.5 of the Regulations of the Commissioner of Education is
amended, effective December 29, 2005 as follows:
(a)
Prior written notice and other written notifications. (1) [Written prior] Prior written
notice 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.
(2)
If the prior written notice relates to an action proposed by the
school district that also requires parental consent under subdivision (b) of
this section, the district must give notice at the same time it requests parent
consent.
(3)
The prior written notice must include:
(i)
. . . .
(ii)
. . . .
(iii) . . . .
(iv)
. . . .
(v) a
description of [any other] the factors that the district considered and
the reasons why those options were rejected;
(vi)
. . . .
(vii) . . .
.
(4)
The prior written notice must be written in language
understandable to the general public, and provided in the native language of the
parent or other mode of communication used by the parent, unless it is clearly
not feasible to do so. If the
native language or other mode of communication of the parent is not a written
language, the school district shall take steps to ensure that the notice is
translated orally or by other means to the parent in his or her native language
or other mode of communication; that the parent understands the content of the
notice; and that there is evidence that the requirements of this section have
been met.
(5)
In addition to the requirements of paragraphs (3) and (4) of this
subdivision:
(i)
Upon receipt of a referral for initial evaluation or prior to conducting
a reevaluation, such prior written notice shall include a description of
the proposed evaluation or reevaluation and the uses to be made of the
information and indicate that the parent may submit evaluation information
which, if submitted, shall be considered by the committee on special education
as part of its evaluation or review.
[Notice provided to parents of students referred for a reevaluation must
indicate that the parents have the right to request a test or assessment as part
of the reevaluation to determine whether the student continues to be a student
with a disability under this Part.
(ii)
Upon a board of education's disagreement with the recommendation of the
committee on special education pursuant to section 200.4(e)(2) of this Part, the
notice to the parent and to the committee shall set forth in writing a statement
of the board of education's reasons and indicate 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.]
[(iii)] (ii) Prior to the student's graduation with a local high
school or Regents diploma, such prior written notice must indicate that
the student is not eligible to receive a free appropriate public education after
graduation with the receipt of the local high school or Regents diploma, unless
the school district provides such services to nondisabled students pursuant to
section 3202 of the Education Law.
[(iv)] (iii) Prior to
the student’s graduation with an individualized education program (IEP) diploma,
such prior written notice must indicate that the student continues to be
eligible for a free appropriate public education until the end of the school
year in which the student turns age 21 or until the receipt of a regular high
school diploma.
(6)
Other required notifications.
A parent of a student with a disability shall also be provided written
notification as follows.
(i)
If the committee on special education and other qualified professionals,
as appropriate, determine in accordance with section 200.4(b)(5) of this Part
that no additional data are needed to determine whether the student continues to
be a student with a disability and to determine the student's educational needs,
the school district must notify the parents of that determination and the
reasons for the determination and the right of such parents to request an
assessment to determine whether the student continues to be a student with a
disability and to determine the student's education
needs.
(ii)
Upon a board of education's disagreement with the recommendation of the
committee on special education pursuant to section 200.4(e)(2) of this Part, the
notice to the parent and to the committee shall set forth in writing a statement
of the board of education's reasons and indicate 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.
[(v)] (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).
[(vi)] (iv) . . . .
[(vii)] (v) . . . .
(7)
A parent of a student with a disability may elect to receive prior
written notice and other required notifications by an electronic mail (e-mail)
communication if the school district makes this option
available.
(b)
Consent. (1) 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) .
. . .
(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 [in] is
not warranted, the referral shall be withdrawn. Except in the case of a preschool child,
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 [shall initiate an
impartial hearing to be conducted in accordance with subdivision (i) of this
section for the purpose of determining whether such an evaluation shall be
conducted without parental consent] may pursue the initial evaluation of the
student by utilizing the due process procedures described in this
section;
(ii)
. . . .
(iii) . . . .
(iv)
. . . .
(v) .
. . .
(2) .
. . .
(3)
If the parents of a student with a disability refuse consent for an
initial evaluation or reevaluation, the school district may continue to pursue
those evaluations by using the due process procedures in section 200.5 of this
Part.
(4)
If the parent of the student refuses to consent or fails to respond to a
request to provide such consent to the provision of special education programs
and services, the school district shall not provide the special education
program and services to the student and shall not use the due process procedures
described in this section to challenge the parent's refusal to
consent.
(i)
The school district shall not be considered to be in violation of the
requirements to make available a free appropriate public education to the
student for the failure to provide such student with the special education
program and services for which the school district requests such consent;
and
(ii)
The school district shall not be required to convene a meeting of the
committee on special education or develop an IEP under section 200.4 of this
Part for the special education program and services for which the school
district requests such consent.
(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)
despite reasonable efforts to do so, the school district cannot discover
the whereabouts of the parent of the student; or
(ii)
the rights of the parents of the student have been terminated in
accordance with State law; or
(iii)
the rights of the parent to make educational decisions have been
subrogated by a judge in accordance with State law.
(c)
Notice of meetings. (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.
(2) .
. . .
(d)
Parent participation in CSE meetings. (1) Each school district shall take
steps to ensure that one or both of the student's parents are present at each
committee on special education meeting or are afforded the opportunity to
participate, including:
(i)
. . . .
(ii)
. . . .
(iii)
using other methods to ensure parent participation, including individual
or conference telephone calls [if neither parent can attend] pursuant to
paragraph (7) of this subdivision.
(2) .
. . .
(3) .
. . .
(4) .
. . .
(5) .
. . .
(6) .
. . .
(7)
When conducting a meeting of the committee on special education, the
school district and the parent may agree to use alternative means of
participation, such as videoconferences or conference telephone
calls.
(e) .
. . .
(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)
upon initial referral or parental request for
evaluation;
(ii)
[upon each notification of an IEP meeting;
(iii)
upon reevaluation of the student; and
(iv)] upon
[receipt of a request for] the first filing of a due process complaint notice
to request mediation or an impartial hearing as described in [subdivision
(i)] subdivisions (h) and (j) of this section;
and
(iii)
upon request by a parent.
(4)
The procedural safeguards notice must include a full explanation of all
the procedural safeguards available under this Part relating
to:
(i)
. . . .
(ii)
. . . .
(iii). . . .
(iv)
. . . .
(v)
opportunity to present and resolve due process complaints [to
initiate due process hearings], 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)
. . . .
(vii) . . . .
(viii) . . . .
(ix)
[mediation;
(x)] due
process hearings, including requirements for disclosure of evaluation results
and recommendations;
[(xi)] (x)
. . . .
[(xii)] (xi) civil action, including the time period in which
to file such actions;
[(xiii)] (xii) . . . .
[(xiv)] (xiii) . . .
.
[(xv)]
(xiv) . .
. .
(5)
A school district may place a current copy of the procedural safeguards
notice on its Internet website if such website exists.
(6)
A parent of a student with a disability may elect to receive the
procedural safeguards notice by an electronic mail (e-mail) communication if the
school district makes such option available.
(g) .
. . .
(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 [that, at a minimum, must be available
whenever a hearing is requested under this section], including matters
arising prior to the filing of a request for an impartial hearing pursuant to
subdivisions (j) and (k) of this section. Such procedures must ensure
that:
(i)
the mediation process is voluntary on the part of the
parties;
(ii)
the mediation process is not used to deny or delay a
parent's right to a due process hearing 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;
(iv)
. . . .
(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
(vi)
[an agreement reached by the parties to the dispute in the mediation
process is set forth in a written mediation agreement] 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 be confidential
and may not be used as evidence in any subsequent due process hearing or civil
proceeding. 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 agreement is enforceable in any State court of competent jurisdiction
or in a district court of the United States.
(2)
Opportunity to meet with a disinterested party. A school district may establish
procedures [for] that provide parents and schools who elect not to
use the mediation process the opportunity to meet, at a time and location
convenient to the parents, with a disinterested party who is from a community
dispute resolution center who would explain the benefits of the mediation
process, and encourage the parents to use the process; except that, a school
district may not deny or delay a parent's right to a due process hearing under
this section if the parent elects not to participate in this meeting.
(3)
[The] If the written agreement reached by the parties in mediation
[amends] is inconsistent with the student's IEP [and is binding
upon the parties. The committee on
special education must immediately meet to amend the] then the student's
IEP must be immediately amended to be consistent with the mediation
agreement.
(4) .
. . .
(5)
When conducting meetings and carrying out administrative matters under
this subdivision, the parent and the school district may agree to use
alternative means of meeting participation, such as video conferences and
conference calls.
(i)
Due process complaint notification requirements. (1) A parent or school district may
present a 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)
the name of the student;
(ii)
the address of the residence of the student (or available contact
information in the case of a homeless student);
(iii)
the name of the school the student is
attending;
(iv)
a description of the nature of the problem of the student relating to
such proposed initiation or change, including facts relating to such problem;
and
(v)
a proposed resolution of the problem to the extent known and available to
the party at the time.
(2)
A party may not have an impartial due process hearing until the party, or
the attorney representing the party, files a due process complaint notice that
meets the requirements of paragraph (1) of this
subdivision.
(3)
The due process complaint notice shall be deemed to be sufficient unless
the party receiving the notice notifies the impartial hearing officer and the
other party in writing that the receiving party believes the notice has not met
the requirements of paragraph (1) of this subdivision.
(4)
School district response to the parent. (i) If the school district has
not sent a prior written notice pursuant to subdivision (a) of this section to
the parent regarding the subject matter in the parent's due process complaint
notice, such school district shall, within 10 days of receiving the complaint,
send to the parent a response that shall include:
(a)
an explanation of why the school district proposed or refused to take the
action raised in the complaint;
(b)
a description of other options that the committee on special education
considered and the reasons why those options were
rejected;
(c)
a description of each evaluation procedure, assessment, record or report
the school district used as a basis for the proposed or refused action;
and
(d)
a description of the factors that are relevant to the school district's
proposal or refusal.
(ii)
A response filed by the school district pursuant to this paragraph shall
not be construed to preclude such school district from asserting that the
parent's due process complaint notice was insufficient where
appropriate.
(5)
Other party response. Except
as provided in paragraph (4) of this subdivision, the noncomplaining party
shall, within 10 days of receiving the due process complaint notice, send to the
complaining party a response that specifically addresses the issues raised in
the notice.
(6)
Allegation of insufficient due process complaint notice. (i) Timing. If the party receiving the due process
complaint notice believes the notice has not met the requirements of paragraph
(1) of this subdivision, it shall notify the impartial hearing officer and the
other party in writing within 15 days of receiving the due process complaint
notice.
(ii)
Determination. Within
five days of the receipt of the notice of insufficiency, the impartial hearing
officer shall make a determination on the face of the notice of whether the
notification meets the requirements of paragraph (1) of this subdivision and
shall immediately notify the parties in writing of such
determination.
(7)
Amended due process complaint notice. (i) A party may amend its due process
complaint notice only if:
(a)
the other party consents in writing to such amendment and is given the
opportunity to resolve the complaint through a meeting held pursuant to
subdivision (j)(2) of this section; or
(b)
the impartial hearing officer grants permission, except that the
impartial hearing officer may only grant such permission at any time not later
than five days before an impartial due process hearing
commences.
(ii)
The applicable timelines for an impartial due process hearing, including
the timelines for a resolution session, 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 [may initiate a] 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. [Parental requests must be
in writing.]
[(i)
. . . .]
(i)
Timeline for requesting an impartial hearing. The request for an impartial due process
hearing must be submitted within two years of the date the parent or agency knew
or should have known about the alleged action that forms the basis of the
complaint, except that the two year timeline shall not apply to a parent if the
parent was prevented from requesting the impartial hearing due to specific
misrepresentations by the school district that it had resolved the problem
forming the basis of the complaint or the school district’s withholding of
information from the parent that was required to be provided to the parent under
this Part or under Part 201 of this Title.
(ii)
Subject matter of the impartial due process hearing. The party requesting the impartial due
process hearing shall not be allowed to raise issues at the impartial due
process hearing that were not raised in the notice filed under subdivision (i)
of this section, unless the other party agrees
otherwise.
[(2)] (iii) When [a] an impartial due process hearing is
requested by either party, the school district shall inform the parent
[shall be given notice which shall inform them] in writing of the
availability of mediation and of any free or low-cost legal and other relevant
services available in the area.
(2)
Resolution session. (i) Preliminary meeting. Prior to the opportunity for an
impartial due process hearing under paragraph (1), 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 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.
(ii)
When conducting meetings and carrying out administrative matters (such as
scheduling) under this paragraph, the parent and the school district may agree
to use alternative means of meeting participation, such as video conferences and
conference calls.
(iii)
Waiver of resolution session.
The parent and the school district may agree, in writing, to waive the
resolution session or agree to use the mediation process described in
subdivision (h) of this section to resolve the
dispute.
(iv)
Written settlement agreement.
If 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.
If the school district has not resolved the 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 subdivision (j) of this
section shall commence.
(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, [The] the board of education shall arrange for [such a]
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)
The rotational selection process must be initiated immediately, but not
later than two business days after receipt by the school district of the
[written request for the hearing] due process complaint notice or mailing of
the due process complaint notice to the parent.
(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 [being appointed by the school
district] the time period specified in clause (a), (b) or (c) of subparagraph
(iii) of this paragraph.
(ii)
. . . .
(iii)
Unless an extension is granted pursuant to subparagraph (5)(i) of this
subdivision, [The] the hearing, or a prehearing conference, shall [be
scheduled to begin] commence within the first 14 days [of the impartial
hearing officer's appointment, unless an extension is granted pursuant to
subparagraph (4)(i) of this subdivision] 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.
(iv)
. . . .
(v) .
. . .
(vi)
. . . .
(vii) . . . .
(viii) . . . .
(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, [at least] 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) .
. . .
(c) .
. . .
(d) .
. . .
(e) .
. . .
(f)
. . . .
(g) .
. . .
(xiii) . . . .
(xiv) . . . .
(xv) . . .
.
(xvi) . . . .
(xvii) When carrying
out administrative matters relating to an impartial due process hearing, such as
scheduling, exchange of witness lists and status conferences, the parent and the
school district may agree to use alternative means of meeting participation,
such as video conferences and conference calls.
(4)
Decision of the impartial hearing officer. (i) In general. Subject to subparagraph (ii), a decision
made by an impartial hearing officer shall be made on substantive grounds based
on a determination of whether the student received a free appropriate public
education.
(ii)
Procedural issues. In
matters alleging a procedural violation, an impartial hearing officer may find
that a student did not receive a free appropriate public education only if the
procedural inadequacies impeded the student's right to a free appropriate public
education, significantly impeded the parent's opportunity to participate in the
decision-making process regarding the provision of a free appropriate public
education to the parent's child, or caused a deprivation of educational
benefits. Nothing in this paragraph
shall be construed to preclude an impartial hearing officer from ordering a
school district to comply with procedural requirements under this Part and Part
201 of this Title.
(5)
Timeline to render a decision.
Except as provided in section 200.16(g)(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 [after the
receipt by the board of education of a request for a hearing or after the
initiation of such a hearing by the board] from the date required for
commencement of the impartial hearing in accordance with paragraph (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)
. . . .
(ii)
. . . .
(iii) . . . .
(iv)
. . . .
(v) .
. . .
[(j)] (k) . . .
.
[(k)] (l)
. . . .
[(l)] (m) Student's status during proceedings. (1) Except as otherwise provided in
paragraph (2) of this subdivision and section 200.16 and Part 201 of this Title,
during the pendency of any proceedings conducted pursuant to subdivision [(i)
or] (j) or (k) of this section, unless the local board of education and
the parents otherwise agree, the student shall remain in the then current
placement of such student. During
the pendency for any due process proceeding relating to the evaluation and
initial placement in special education, unless the local board of education and
the parents otherwise agree, the student shall not be evaluated and shall remain
in the then current educational placement of such student or, if applying for
initial admission to a public school, shall be placed in the public school
program until all such proceedings have been completed.
(2)
If a decision of a State review officer, pursuant to subdivision [(j)]
(k) of this section, agrees with the student's parents that a change of
placement is appropriate, that placement must be treated as an agreement between
the State or school district and the parents for purposes of pendency during any
subsequent appeals pursuant to paragraph [(j)(3)] (k)(3) of this
section.
[(m)] (n) Surrogate parents.
(1) Duty of the board
of education. The board of
education or other appropriate body shall select a surrogate parent from a list
of individuals who are eligible and willing to serve as surrogate parents in
order to ensure that the rights of a student are protected
if:
(i)
. . . .
(ii)
the school district, after reasonable efforts cannot discover the
whereabouts of a parent, or the student is an unaccompanied homeless youth,
as such term is defined in section 100.2(x)(1)(vi) of this Title;
or
(iii)
the student is a ward of the State and does not have a parent as
defined in section 200.1(ii) of this Part or the rights of the parent to make
educational decisions on behalf of the student have been subrogated by a judge
in accordance with State law.
(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. [This] The
determination of the need for a surrogate parent shall be completed
within a reasonable time following the receipt of [the original request for a
surrogate parent] 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 clause (v) or (vi) 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)
The surrogate parent alternatively may be appointed by the judge
overseeing the child’s case, provided that the surrogate parent meets the
requirements in paragraph (2) of this section. The individual appointed by the judge
need not be appointed from a list approved by the board of
education.
9.
A new subdivision (m) is added to section 200.6 of the Regulations of the
Commissioner of Education, effective December 29, 2005, as
follows:
(m)
Interim alternative education setting (IAES). Students with disabilities who have been
suspended or removed from their current placement for more than 10 school days
pursuant to Part 201 may be placed in an IAES. The IAES, to the extent provided in Part
201 of this Title, shall be an educational setting, other than the student's
current placement at the time the behavior precipitating the IAES placement
occurred. A student placed in an
IAES shall:
(1)
continue to receive educational services so as to enable the student to
continue to participate in the general education curriculum, although in another
setting and to progress toward the goals set out in the student's IEP;
and
(2)
receive, as appropriate, a functional behavioral assessment and
behavioral intervention services and modifications that are designed to address
the behavior violation so that it does not recur.
10.
Paragraph (4) of subdivision (c) and subdivision (d) of section 200.7 of
the Regulations of the Commissioner of Education are amended, effective December
29, 2005, as follows:
(4)
An educational progress report on each student, which describes such
student's progress toward meeting the annual goals, shall be provided by the
approved school to the committee on special education of the referring district
or the referring agency at least annually.
Other required data and/or reports shall be made available by the private
school to the referring district or agency on request.
(d)
Appointment of blind, deaf and severely physically disabled students to
certain State-operated and State-supported schools pursuant to articles 85, 87
and 88 of the Education Law, chapter 1060 of the Laws of 1974 and chapter 474 of
the Laws of 1996.
(1)
Application for State appointment of deaf, blind, severely physically
disabled or severely emotionally disturbed students to State-operated or
State-supported schools for the blind, deaf, severely physically disabled or
severely emotionally disturbed shall be initiated by parents through application
to the commissioner, supported by adequate written evidence of blindness,
deafness or severe disability, or by the committee on special education or
committee on preschool special education of the school district responsible for
the student. The commissioner or
the committee on special education or committee on preschool special education
will direct the parents to make arrangements at a State-operated or
State-supported school designated by the commissioner for an evaluation. Such school shall evaluate the student's
special educational needs and eligibility for its program.
(i)
. . . .
(a) .
. . .
(b) .
. . .
(c) .
. . .
(d) .
. . .
(e) .
. . .
(f) In the case
of a student not recommended for appointment to a particular State-operated
school, or in the event of a change in a recommendation concerning the
classification, placement or provision of a free appropriate public education to
a student at a State-operated school, the State-operated school shall notify the
parent. Such notification shall be
comparable to that required by section 200.5(a) of this Part, shall include all
reasons for lack of acceptance of the student into the program or for the change
in the recommendation, and shall include suggestions for more appropriate
placement or program. The parent
may request mediation or may, in accordance with section 200.5(i) of this
Part, file with the department a written request for a hearing before an
impartial hearing officer who will be designated by the department. Such hearing officer shall not be an
employee of the department. The
procedures relating to a resolution session, the conduct of the hearing
and review of the decision of the hearing officer shall be comparable to those
set forth in section [200.5(i)] 200.5(j) through [(j)] (k) of this
Part.
(ii)
. . . .
(iii)
with respect to an application for admission of a preschool student with
a disability to a State-supported school, the school shall report the results of
its evaluation to the committee on preschool special education. Upon receipt of such report, the
committee on preschool special education shall conduct a meeting in accordance
with the provisions of section 200.16 of this Part. The committee may recommend that the
commissioner appoint the student to the State-supported school, or it may
recommend a different placement. If
the parents disagree with the recommendation of the committee on preschool
special education, they may request mediation [or] and/or [that the board
of education appoint an impartial hearing officer] submit a request for a due process impartial hearing pursuant
to sections 200.5(i) and (j) of this Part to review that
recommendation[,]. [and the]
The impartial hearing officer shall consider, together with all other
relevant information, the evaluation conducted by the State-supported
school. If the committee on
preschool special education has recommended a placement other than the
State-supported school, and the impartial hearing officer finds that such
recommendation is inappropriate and that placement in the State-supported school
would be appropriate, the impartial hearing officer may order that the
board of education recommend to the commissioner that the student be placed in
the State-supported school. The
decision of the impartial hearing officer may be appealed in accordance
with section 4404 of the Education Law.
(2) .
. . .
(3) .
. . .
(4) .
. . .
(5) .
. . .
(6) .
. . .
(7) .
. . .
(e) .
. . .
11. Subdivisions (d) and
(e) of section 200.14 of the Regulations of the Commissioner of Education are
amended, effective December 29, 2005, as follows:
(d)
Recommendation. [Individualized education program
(IEP).]
(1)
The results of the individual evaluation described in subdivision (c) of
this section, as well as the suggestions of the treatment team, including the
type, frequency and duration of services needed to meet the student’s mental
health and educational needs, shall be used in the development of the [IEP]
individualized education program (IEP).
(2)
Individualized education program (IEP). The IEP shall be developed, pursuant to
section 200.4 of this Part, in meetings of the committee on special
education. A representative of the
treatment team shall be given the opportunity to attend. In the event that such representative is
unable to attend such meetings, the committee shall attempt alternative means of
assuring the representative's participation, such as individual or conference
telephone discussions, and such attempts shall be documented. Referral to the committee on special
education for review of the IEP shall be conducted pursuant to section 200.4(d)
of this Part.
(e)
Student progress reports.
(1) .
. . .
(2) .
. . .
(3)
An annual review and reevaluation of each student's IEP shall be
conducted pursuant to [section 200.4(e)] sections 200.4(b) and (f) of
this Part and subdivision (d) of this section.
12. Section
200.16 of the Regulations of the Commissioner of Education is amended, effective
December 29, 2005, as follows:
200.16 Educational programs
for preschool students with disabilities
Educational programs and services for preschool students with
disabilities, as defined in section 200.1(mm) of this Part, shall be provided in
accordance with this section, and those other applicable provisions of this Part
that are not inconsistent with this section. Where other provisions of this Part are
made applicable to preschool students with disabilities, committee on special
education shall mean a committee on preschool special education; student shall
mean a preschool student with a disability; and programs shall mean preschool
programs.
(a) .
. . .
(b)
[Procedures for referral, evaluation, individualized education program
development, placement and review.]
(1) Referral . . . .
(c)
Individual evaluation and reevaluation. (1) . . . .
(2) .
. . .
(3) .
. . .
(4) .
. . .
(5) .
. . .
[(6)] (d) Evaluations and eligibility determinations. (1) Upon the completion of the
administration of tests and other evaluation materials, the committee must
determine whether the student is a preschool student with a disability, as
defined in section 200.1(mm) of this Part.
(2)
[For purposes of eligibility and continuing eligibility determinations]
Upon completion of the administration of assessments and other evaluation
measures, the committee must provide a copy of the evaluation report and the
documentation of determination of eligibility to the
parent.
[(7)] (3) . . . .
[(8)] (4) . . . .
(5)
A committee on preschool special education shall provide for an
appropriate reevaluation of a preschool student with a disability in accordance
with section 200.4(b)(4), (5) and (6) of this Part.
[(d)] (e) Recommendation.
[Individualized education program (IEP).]
(1) .
. . .
(2) .
. . .
(3)
Individualized education program (IEP). If the committee determines that the
preschool child has a disability, the committee shall recommend approved
appropriate services and/or special programs and the frequency, duration,
location and intensity of such services including, but not limited to, the
appropriateness of single services or half-day programs based on the individual
needs of the preschool child. The
committee shall first consider the appropriateness of providing (i) related
services only; or (ii) special education itinerant services only; or (iii)
related services in combination with special education itinerant services; or
(iv) a half-day preschool program as defined in section [200.1] 200.1(u)
of this Part; or (v) a full-day preschool program as defined in section
200.1(p) of this Part. If the
committee determines that the child demonstrates the need for a single related
service, such service shall be provided as a related service only or, where
appropriate, as a special education itinerant service. The IEP recommendation shall be developed
in accordance with section 200.4(d)(2), (3) and (4) of this Part [provided that
subparagraphs (2)(v), (viii), and (ix) of such section shall not apply]. In addition, the recommendation for
special education programs and services for a preschool student with a
disability shall:
(iv)] (i) prior to recommending the provision of special education
services in a setting which includes only preschool children with disabilities,
the committee shall first consider providing special education services in a
setting where age-appropriate peers without disabilities are typically
found. Provision of special
education services in a setting with no regular contact with age-appropriate
peers without disabilities shall be documented on the child’s IEP and shall only
be considered when the nature or severity of the child’s disability is such that
education in a less restrictive environment with the use of supplementary aids
and services cannot be achieved satisfactorily; and
(vi)] (ii) . . . .
(4)
The committee’s recommendation shall be developed at a meeting of the
committee on preschool special education in accordance with section 200.4(d)(4)
of this Part and section 4410 of the Education Law. To the extent possible, any meeting of
the committee shall be held at a site and time mutually convenient to the
members of the committee and the parent of the preschool student, including but
not limited to the worksite of the evaluator, the municipal representative on
the committee, or the chairperson of the committee. The committee’s recommendation shall be
developed following a review of information presented by the preschool student’s
teacher(s) and/or the parent, the evaluation results provided by the approved
program, results of other evaluations, and any other appropriate information
provided by an agency charged with responsibility for the student. However, if the committee determines
that a child requires a structured learning environment of 12 months duration to
prevent substantial regression, the committee shall include in its
recommendation a statement of the reasons for such recommendation as part of the
IEP document.
(5) .
. . .
(6) .
. . .
(7) .
. . .
[(e)] (f) Provision of services for preschool students with
disabilities. (1) . . .
.
(2) .
. . .
(3) .
. . .
(4) .
. . .
(5) .
. . .
(6)
The IEP of a preschool student with a disability shall be implemented in
accordance with section 200.4(e)(1)(i) and (ii), (3), (4), [and]
(7), (8) and (9) of this Part, except that during the pendency of
proceedings conducted pursuant to paragraphs [(g)(9)] (h)(9) and (10) of
this section, the placement of a preschool student shall be as provided in
paragraph [(g)(3)] (h)(3) of this section.
[(f)] (g) Annual
review. The individualized
education program (IEP) of each preschool student with a disability shall be
reviewed and, if appropriate, revised periodically but not less
frequently than annually in accordance with section [200.4(f)(1) through
(3)] 200.4(f) of this Part.
In any such meeting of the committee, the professional who participated
in the evaluation shall upon request of the parent or committee, attend and
participate at such meeting.
[(g)] (h) Procedural
due process. (1) Prior
written notice of initial evaluation, review or reevaluation of a
preschool student with a disability shall be made in accordance with section
[200.5(a)(1) through (4) and (5)(i), (ii) and (vii)] 200.5(a) of this
Part.
[(i)
. . . .]
(2) .
. . .
(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
[subparagraph (2)(i) of this subdivision] section 200.5(f)(4) of this
Part, the procedural safeguards notice shall also:
(i)
indicate that during the pendency of any proceedings conducted pursuant
to this Part, those preschool students with disabilities who are receiving
special education programs or services pursuant to section 4410 of the Education
Law shall remain in the then current education placement of such preschool
student until all such proceedings have been completed, except as otherwise
provided in section [200.5(l)] 200.5(m) of this Part. Nothing in this subparagraph shall
require that a student with a disability remain in a preschool program for which
he or she is no longer eligible pursuant to section 4410 of the Education Law
during the pendency of any proceeding brought pursuant to this
Part;
(ii)
. . . .
(iii)
. . . .
(iv)
. . . .
(4) .
. . .
(5)
Notice upon recommendation.
Prior written notice of the recommendation of the committee on
preschool special education shall be provided to the board of education and to
the parent of the preschool student in accordance with section 200.5(a) of this
Part. The notice upon
recommendation shall indicate that, in the event that the parent does not
provide consent for the initial provision of special education services, no
further action will be taken by the committee on preschool special education
until such consent is obtained.
(6) .
. . .
(7) .
. . .
(8) .
. . .
(9)
Impartial due process hearings. Impartial due process hearings
shall be conducted in accordance with section [200.5(i)] 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 or after the
initiation of such hearing by the board.
(10) Appeal to a
State review officer. Decisions of
impartial hearing officers shall be subject to the review of a State review
officer of the State Education Department in accordance with section [200.5(j)]
200.5(k) of this Part.
(11) State
complaints. State complaint
investigations shall be conducted in accordance with section [200.5(k)]
200.5(l) of this Part.
(12) Surrogate
parents. Surrogate parents shall be
appointed in accordance with section [200.5(m)] 200.5(n) of this
Part.
(13) . . .
.
[(h)] (i)
. . . .
13.
Subdivisions (k) and (l) of section 201.2 of the Regulations of the
Commissioner of Education is amended, a new subdivision (m) is added and
subdivisions (m) through (r) are relettered as (n) through (s), effective
December 29, 2005, as follows:
(k)
Interim alternative educational setting or IAES means a temporary
educational placement [for a period of up to 45 days] determined by the
committee on special education, other than the student’s current placement
at the time the behavior precipitating the IAES placement occurred[, that
enables the student to continue to].
A student who is placed in an IAES shall:
(1)
continue to receive educational services so as to enable the student to
continue to [progress] participate in the general education
curriculum, although in another setting[, to continue to receive those services
and modifications, including those described on the student’s current IEP, that
will enable the student to meet the goals set out in such IEP and include
services and modifications to address the behavior which precipitated the IAES
placement that are designed to prevent the behavior from recurring] and to
progress toward meeting the goals set out in the student’s IEP;
and
(2)
receive, as appropriate, a functional behavioral assessment and
behavioral intervention services and modifications that are designed to address
the behavior violation so that it does not recur.
(l)
Removal means: (1) a removal of a student with a disability for
disciplinary reasons from that student’s current educational placement, other
than a suspension as defined in subdivision [(q)] (r) of this Part;
and
(2) .
. . .
(m)
Serious bodily injury means bodily injury which involves a substantial
risk of death, extreme physical pain, protracted and obvious disfigurement or
protracted loss or impairment of the function of a bodily member, organ or
mental faculty.
[(m)] (n) . . .
.
[(n)] (o) . . .
.
[(o)] (p) . . .
.
[(p)] (q) . . .
.
[(q)] (r) . . .
.
[(r)] (s)
. . . .
14. Section
201.3 of the Regulations of the Commissioner of Education is amended, effective
December 29, 2005, as follows:
201.3 CSE responsibilities
for functional behavioral assessments and behavioral intervention plans. When
a student with a disability is suspended or removed from the student’s current
placement for more than 10 consecutive school days or when a suspension or
removal constitutes a disciplinary change of placement and the student’s conduct
is a manifestation of the student’s disability, the committee on special
education shall:
(a)
[Initial requirement to conduct assessment and develop plan or to review
existing plan. Not later than 10
business days after first suspending or removing a student with a disability for
more than 10 school days in a school year or imposing a suspension or removal
that constitutes a disciplinary change in placement, including a change in
placement to an IAES pursuant to section 201.7(e) of this Part for behavior
involving carrying or possessing a weapon or possession or use of an illegal
drug or selling or soliciting the sale of a controlled
substance:
(1)
If the school district did not conduct a functional behavioral assessment
and implement a behavioral intervention plan for the student before the behavior
that resulted in the suspension or removal, the school district shall convene a
meeting of the CSE to develop an assessment plan. As soon as practicable after developing
such behavioral assessment plan, and completing the assessments required by the
plan, the school district shall convene a meeting of the CSE to develop
appropriate behavioral interventions to address that behavior and shall
implement those interventions; and] conduct a functional behavioral
assessment and implement a behavioral intervention plan for such student,
provided that the school district had not conducted such assessment prior to the
manifestation determination before the behavior that resulted in the change in
placement; or
[(2)]
(b) if the student
already has a behavioral intervention plan, the CSE shall meet to review such
plan and its implementation and modify the plan and its implementation as
necessary, to address the behavior that resulted in the change in
placement.
[(b)] (c) . . . .
15. Section
201.4 of the Regulations of the Commissioner is amended, effective December 29,
2005, as follows:
(2)
Upon a determination by the [CSE] 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. 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 [CSE] 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.
(3)
Notwithstanding the provisions of paragraphs (1) and (2) of this
subdivision, if the superintendent or hearing officer in the superintendent's
hearing is considering the change in placement of a student with a disability to
an IAES pursuant to section 201.7(e) of this Part, upon a determination that the
student is guilty of the alleged misconduct relating to serious bodily
injury, weapons, illegal drugs or controlled substances, the superintendent
of schools may order, or the hearing officer in the superintendent's hearing may
recommend, such change in placement to an IAES, to be determined by the CSE, for
up to 45 school days, but not to exceed the length of time that a
nondisabled student would be suspended for the same misconduct under the school
district's student discipline policy. The superintendent of schools may order
such change in placement of a student with a disability to an IAES, directly or
upon recommendation of a hearing officer in the superintendent's hearing, even
where the [CSE] manifestation team determines that the student's behavior
is a manifestation of the student's disability.
(4)
The penalty phase of a superintendent's hearing for a student with a
disability or a student presumed to have a disability for discipline purposes
shall be conducted in the same manner as the penalty phase of a hearing
involving a nondisabled student, including the admission of anecdotal evidence
of past instances of misconduct. The school district shall assure that copies of
the special education and disciplinary records of the student are transmitted to
the superintendent of schools or hearing officer in the superintendent's hearing
for consideration. Such records shall be transmitted whether or not the [CSE]
manifestation team has determined that the student's behavior is a
manifestation of the student's disability.
(5)
Nothing in this section shall be construed to authorize the suspension or
removal of a student with a disability from his or her current educational
placement for violation of school rules following a determination by the [CSE]
manifestation team that the behavior is a manifestation of the student's
disability, except where the student is placed in an IAES for behavior involving
serious bodily injury, weapons, illegal drugs or controlled substances
pursuant to section 201.7(e) of this Part or the student is placed in an IAES by
an impartial hearing officer pursuant to section 201.8 of this Part.
20. Subdivisions (c), (d)
and (e) of section 201.10 of the Regulations of the Commissioner of Education
are amended, effective December 29, 2005, as follows:
(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
[appropriately progress] continue to participate in the general
education curriculum and [appropriately advance] to progress
toward [achieving] 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 [building principal,
superintendent of schools or other school officials imposing the suspension, or
other school personnel delegated such authority, shall determine, in
consultation with the student's special education teacher, the extent to which
services are necessary to enable the student to appropriately progress in the
general curriculum and appropriately advance toward achieving the goals set out
in the student's IEP] CSE shall determine the services to be provided to the
student.
(d) During suspensions or other disciplinary removals for periods in
excess of 10 school days in a school year which [do] constitute a disciplinary
change in placement for behavior [that has been determined by the CSE not to be
a manifestation of the student's disability], students with disabilities shall
be provided with services, as determined by the CSE, necessary to enable
the student to [appropriately progress] continue to participate in the
general education curriculum [and appropriately advance], to
progress toward [achieving] 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 extent to which services are necessary to enable the student to
appropriately progress in the general curriculum and appropriately advance
toward achieving the goals set out in the student's IEP.]
(e)
[Notwithstanding any other provision of this section to the contrary,
the] The interim alternative educational setting and the services to be
provided to a student placed in an interim alternative educational setting
[pursuant to section 201.7(e) of this Part] shall be determined by the CSE [and
the setting to be provided to a student placed in an IAES pursuant to section
201.8 of this Part shall be determined by the impartial hearing officer upon
receipt of a proposed setting by school personnel who have consulted with the
student's special education teacher]. Such [setting] services shall:
(1)
[be selected so as to] enable the student to continue to [progress]
participate in the general education curriculum, although in
another setting, and [to continue to receive those modifications, including
those described in the student's current IEP, that will enable the child to
meet] to progress toward meeting the goals set out in that IEP; and
(2)
include, as appropriate, a functional behavioral assessment and
behavioral intervention services and modifications to address the behavior
that is subject to disciplinary action, that are designed to prevent the
behavior from recurring.
21.
Subdivisions (b) and (d) of section 201.11 of the Regulations of the
Commissioner of Education is amended, effective December 29, 2005, as
follows:
(b)
An expedited due process hearing shall be conducted in accordance with
the procedures specified in [34 C.F.R. sections 300.508 and 300.509 (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) and subdivision (i) of section 200.5
of this Title] section 200.5(j) of this Part, except as follows:
(1) . . . .
(2) . . . .
(d)
If a parent requests a hearing or an appeal regarding the change in
placement of a student to an IAES by a superintendent of schools [pursuant to a
change in placement to an IAES pursuant to section 201.7(e) of this Part for
behavior involving carrying or possessing a weapon or illegal drug or controlled
substances], or regarding a change in placement [to an IAES] by an impartial
hearing officer pursuant to section 201.8 of this Part where the school district
maintains that it is dangerous for the student to remain in his or her current
educational placement, or regarding a determination that the behavior is not a
manifestation of the student's disability for a student who has been placed in
an IAES, the student shall remain in the IAES pending the decision of the
impartial hearing officer or until expiration of the time period determined in
accordance with section [201.7(e)] 201.7 or [in accordance with] section
201.8 of this Part, as applicable, [but not to exceed 45 days,] whichever occurs
first, unless the parents and the school district otherwise agree.
(e) . . . .
Pursuant to
Education Law sections 207, 3208, 3209, 3212, 3214, 3602-c, 3713, 4002, 4308,
4355, 4401, 4402, 4403, 4404, 4404-a and 4410 and Chapters 119 and 352 of the
Laws of 2005
1.
Subparagraph (iv) of paragraph (4) and subparagraphs (i), (iii) and (iv) and (xvii) of paragraph
(7) of subdivision (x) of section 100.2 are amended, effective December 12,
2005, as follows:
(iv)
immediately contact the school district where the child’s records are
located for a copy of such records and coordinate the transmittal of records
for students with disabilities consistent with section 200.4(e)(8)(iii) of this
Title;
(i)
Enrollment. Each school
district shall:
(a)
ensure that homeless children and youth are not segregated in a separate
school, or in a separate program within a school, based on their status as
homeless; [and]
(b)
to the extent feasible and consistent with the requirements of paragraphs
(2) and (4) of this subdivision, keep a homeless child or youth in the school of
origin except when doing so is contrary to the wishes of the child’s or youth’s
parent or guardian; and
(c)
a student with a disability as defined in section 200.1(zz) of this
Title, who transfers school districts within the same academic year, is provided
with a free appropriate public education, including services comparable to those
described in the previously held individualized education program (IEP) pursuant
to section 200.4(e)(8) of this Title.
(e)
Assistive technology device means any item, piece of equipment, or
product system, whether acquired commercially off the shelf, modified, or
customized, that is used to increase, maintain, or improve the functional
capabilities of a student with a disability. Such term does not include a medical
device that is surgically implanted, or the replacement of such a
device.
(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(i)(3)(vii)] 200.5(j)(3)(vii) 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(j)] 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(i)(3)(ix)] 200.5(j)(3)(ix) of this Part.
(t)
General curriculum means the same general education curriculum as
for students without disabilities.
(x)
Impartial hearing officer means an individual assigned by a board of
education pursuant to Education Law, section 4404(1), or by the commissioner in
accordance with section 200.7(d)(1)(i) of this Part, to conduct a hearing and
render a decision. [Commencing July
1, 1996, no] No individual employed by a school district, school or
program serving students with disabilities placed there by a school district
committee on special education may serve as an impartial hearing officer and no
individual employed by such schools or programs may serve as an impartial
hearing officer for two years following the termination of such employment,
provided that a person who otherwise qualifies to conduct a hearing under this
section shall not be deemed an employee of the school district, school or
program serving students with disabilities solely because he or she is paid by
such schools or programs to serve as an impartial hearing officer. An impartial hearing officer
shall:
(1) .
. . .
(2) .
. . .
(3) .
. . .
(4)
be certified by the commissioner as an impartial hearing officer eligible
to conduct hearings pursuant to Education Law, section 4404(1) and subject to
suspension or revocation of such certification by the commissioner for good
cause in accordance with the provisions of section 200.21 of this Part. In order to obtain and retain such a
certificate, an individual shall:
(i)
. . . .
(ii)
attend such periodic update programs as may be scheduled by the
commissioner; [and]
(iii)
[commencing July 1, 2002,] annually submit, in a format and by a date
prescribed by the commissioner, a certification that the impartial hearing
officer meets the requirements of paragraphs (1), (2) and (3) of this
subdivision[.];
(iv)
possess knowledge of, and the ability to understand, the provisions of
federal and State law and regulations pertaining to the Individuals with
Disabilities Education Act and legal interpretations of such law and regulations
by federal and State courts; and
(v)
possess knowledge of, and the ability to conduct hearings in accordance
with appropriate, standard legal practice and to render and write decisions in
accordance with appropriate standard legal practice.
(dd) Mediator
means a qualified and impartial individual who is trained in effective mediation
techniques to resolve disputes in accordance with Education Law, section 4404-a
and 200.5(h) of this Part and who is knowledgeable in laws and regulations
relating to the provision of special education services. An individual who serves as a mediator
may not have a personal or professional interest which would conflict with his
or her objectivity in the mediation process and may not be an employee of a
State educational agency that is providing direct services to a student who is
the subject of the mediation process or a school district or program serving
students with disabilities, provided that a person who otherwise qualifies to
conduct mediation under section 200.5(h) of this Part shall not be deemed an
employee of the State, a school district, school or a program serving students
with disabilities solely because he or she is paid by a community dispute
resolution center through grant funds provided by the State Education Department
to serve as a mediator.
(ii)
(1) Parent means a
[natural] birth or adoptive parent, a guardian, 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(m)] 200.5(n) of this
Part. The term does not include the
State if the student is a ward of the State.
(2)
A foster parent may act as a parent [if the natural parent's authority to
make educational decisions on the student's behalf has been extinguished under
State law; and the foster parent has an ongoing, long-term parental relationship
with the student; is willing to make the educational decisions required of
parents; and has no interest that would conflict with the interests of the
student] unless State law, regulations or contractual obligations with a
State or local entity prohibit the foster parent from acting as a
parent.
(3)
Except as provided in subparagraph (4) of this paragraph, when one or
more than one party is qualified under paragraph (1) of this section to act as a
parent, the birth or adoptive parent must be presumed to be the parent unless
the birth or adoptive parent does not have legal authority to make educational
decisions for the student.
(4)
If a judicial decree or order identifies a specific person or persons to
act as the parent or make educational decisions on behalf of the student, then
such person or persons shall be determined to be the parent for purposes of this
Part, except that a public agency that provides education or care for the
student, or a private agency that contracts with a public agency for such
purposes, shall not act as the parent.
(oo) Prior written notice means written statements
developed in accordance with section 200.5(a) of this Part, and provided 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, or educational placement of the student or the provision of a free
appropriate public education to the student.
(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, [appropriate access to
recreation] 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.
(ss) School
health services means nursing 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.
(ww) Special education
means specially designed individualized or group instruction or special services
or programs, as defined in subdivision 2 of section 4401 of the Education Law,
and special transportation, provided at no cost to the parent, to meet the
unique needs of students with disabilities.
(1) .
. . .
(2) .
. . .
(3)
For purposes of this definition:
(i)
The individual needs of a student shall be determined by a committee on
special education in accordance with the provisions of section 200.4 of this
Part upon consideration of the present levels of performance and expected
learning outcomes of the student.
Such individual-need determinations shall provide the basis for written
annual goals, direction for the provision of appropriate educational programs
and services and development of an individualized education program for the
student. The areas to be considered
shall include:
(a)
academic [or educational] achievement, functional performance and
learning characteristics which shall mean the levels of knowledge and
development in subject and skill areas, including activities of daily living,
level of intellectual functioning, adaptive behavior, expected rate of progress
in acquiring skills and information, and learning style;
(b) .
. . .
(c) .
. . .
(d) .
. . .
(ii)
. . . .
(zz)
Student with a disability means a student with a disability as defined in
section 4401(1) of the 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) 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. [A student who exhibits a discrepancy of
50 percent or more between expected achievement and actual achievement
determined on an individual basis shall be deemed to have a learning
disability.]
(7) .
. . .
(8) .
. . .
(9) .
. . .
(10) . . .
.
(11) . . .
.
(12) . . .
.
(13) . . .
.
(ccc) Surrogate parent
means a person appointed to act in place of parents or guardians when a
student's parents or guardians are not known, or when after reasonable efforts,
the board of education cannot discover the whereabouts of a parent, the
student is an unaccompanied homeless youth or the student is a ward of the
State and does not have a parent who meets the definition in subdivision (ii)
of this section, or the rights of the parent to make educational decisions have
been subrogated by a judge in accordance with State
law.
(fff)
Transition Services means a coordinated set of activities for a student
with a disability, designed within [an outcome-oriented] a
results-oriented process that [promotes movement] 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 [training]
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)
[if] when appropriate, acquisition of daily living skills and
functional vocational evaluation.
(hhh) Homeless youth
means the same as the term ‘homeless child’ as defined in section 100.2(x) of
this Title.
(iii)
Limited English proficient student means the same as the term ‘pupils
with limited English proficiency’ as defined in section 154.2(a) of this
Title.
(jjj)
Universal design means a concept or philosophy for designing and
delivering products and services that are usable by people with the widest
possible range of functional capabilities, which include products and services
that are directly usable (without requiring assistive technologies) and products
and services that are made usable with assistive
technologies.
(kkk) Ward of the
State means a child or
youth under the age of twenty-one:
(1)
who has been
placed or remanded pursuant to section 358-a, 384 or 384-a of the Social
Services Law, or article 3, 7, or 10 of the Family Court Act, or freed for
adoption pursuant to section 383-c, 384 or 384-b of the Social Services
Law;
or
(2)
who is in the
custody of the Commissioner of Social Services or the Office of Children and
Family Services;
or
(3)
who is a
destitute child under section 398(1) of the Social Services Law.
5.
Subdivisions (a), (b), (d), (e), (h) and (i) of section 200.2 of the
Regulations of the Commissioner of Education are amended, effective December 12,
2005, as follows:
(a)
Census and register of students with disabilities. (1) The board of education or trustees
of each school district shall conduct a census in accordance with Education Law,
sections 3240, 3241 and 3242, to locate and identify all students with
disabilities who reside in the district and shall establish a register of such
students who are entitled to attend the public schools of the district or are
eligible to attend a preschool program in accordance with section 4410 of the
Education Law during the next school year, including students with
disabilities who are homeless or who are wards of the State. The register of such students and others
referred to the committee as possibly having a disability shall be maintained
and revised annually by the district committee on special education or the
committee on preschool special education, as appropriate. Procedures shall be implemented to
assure the availability of statistical data to readily determine the status of
each student with a disability in the identification, location, evaluation,
placement and program review process.
Census data shall be reported by October 1st to the committee on special
education or committee on preschool special education, as
appropriate.
(2)
Data requirements. (i) Procedures shall be designed to record data on
each student, and shall include at least the following types of
data:
(a) .
. . .
(b) .
. . .
(c) .
. . .
(d) .
. . .
(e)
site where the student is currently receiving an educational program;
[and]
(f)
other student information as required by the Individuals with
Disabilities Education Act (20
U.S.C. 1400 et. seq.) and federal regulations, including but not limited to the
student’s race, ethnicity, limited English proficiency status, gender and
disability category;
[(f)] (g)
. . . .
(ii)
. . . .
(3) .
. . .
(4)
Data reporting. The
reporting of data shall be conducted in accordance with the following policies
and procedures:
(i)
. . . .
(ii)
. . . .
(5) .
. . .
(6) .
. . .
(7)
[The procedures] Procedures to locate, identify, and evaluate all
nonpublic private elementary and secondary school students with
disabilities, including religious-school children [residing in the school
district,] 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
[comparable] 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 [board of
education] school district shall consult with [appropriate]
representatives of private [school students with disabilities, that may include
representatives of organizations of nonpublic school groups, selected parents of
students with disabilities enrolled in nonpublic schools and selected
representatives of the nonpublic schools in the school district, on how to carry
out the activities described in this section] schools and representatives of
parents of parentally placed private school students with disabilities on the
child find process. 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:
(1) .
. . .
(2) .
. . .
(3) .
. . .
(4) .
. . .
(5) . . . .
(6) .
. . .
(7) . . . .
(8) .
. . .
(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(i)] 200.5(j) of this Part;
[and]
(10) establishes
a plan [by July 1, 2002], 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 the 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;
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 nondisabled 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)
each regular education teacher, special education teacher, related
service provider and/or other service provider, as defined in clause (a) of this
subparagraph, who is responsible for the implementation of a student’s
individualized education program (IEP) is provided a paper or electronic copy of
such student’s IEP, including amendments to the IEP made pursuant to section
200.4(g) of this Part, prior to the implementation of such program:
(a) .
. . .
(ii)
. . . .
(iii) . . . .
(12) identifies the measurable steps it shall take to recruit, hire,
train and retain highly qualified personnel to provide special education
programs and services;
(13) describes
the guidelines for the provision of appropriate accommodations necessary to
measure the academic achievement and functional performance of the student in
the administration of districtwide assessments; and
(14)
identifies how the district, to the extent feasible, will use universal
design principles in developing and administering any districtwide assessment
programs.
(d)
Approval of services. (1)
Approval of services for students with disabilities. The board of education or board of
trustees of each school district shall, upon completion of its review of
the [IEP] recommendation of the committee on special education for special
education programs and services, including changes to the committee on special
education’s recommendation made pursuant to section 200.4(g) of this Part,
in accordance with section 200.4(e)(1) and (2) of this Part, arrange for the
appropriate special education programs and services to be provided to a student
with a disability as recommended by the committee on special education. The board shall notify the parent of its
action in accordance with section 4402(2)(b)(2) of the Education
Law.
(2)
Approval of services for preschool students with disabilities. The board of education or the board of
trustees of each school district shall, upon completion of the [IEP]
recommendation of the committee on preschool special education for special
education programs and services, including changes to the committee’s
recommendation made pursuant to section 200.4(g) of this Part, arrange for
appropriate special education programs and services for a preschool student with
a disability, as recommended by the committee on preschool special education,
from among the services and programs approved for such purpose by the
commissioner. The board shall
notify the parent, the municipality and the commissioner of its action in
accordance with section 4410 of the Education Law.
(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)
. . . .
(ii)
available to serve in the district in hearings conducted pursuant to
Education Law, section 4404(1). Appointment of impartial hearing officers
pursuant to Education Law, section 4404(1) shall be made only from such list and
in accordance with the rotation selection process prescribed herein and the
timelines and procedures in section [200.5(i)] 200.5(j) of this Part.
Such names will be listed in alphabetical order. Selection from such list shall
be made on a rotational basis beginning with the first name appearing after the
impartial hearing officer who last served or, in the event no impartial hearing
officer on the list has served, beginning with the first name appearing on such
list. Should that impartial hearing officer decline appointment, or if, within
24 hours, the impartial hearing officer fails to respond or is unreachable after
reasonable efforts by the district that are documented and can be independently
verified, each successive impartial hearing officer whose name next appears on
the list shall be offered appointment, until such appointment is accepted. The
name of any newly certified impartial hearing officer who is available to serve
in the district shall be inserted into the list in alphabetical order;
(2)
persons from whom the district shall choose a surrogate parent
pursuant to section 200.5(n) of this Part; and
(3) .
. . .
(h)
[Local comprehensive system of personnel development (CSPD) plan.] The board of education or trustees of
each school district and each board of cooperative educational services shall
[submit to the State Education Department annually, by a date prescribed by the
commissioner, a local CSPD] develop and implement a plan as part of
the professional development plan pursuant to section 100.2(dd) of this
Title [containing the information demonstrating that all personnel providing
services to students with disabilities are adequate as prescribed by the
commissioner. The CSPD plan]
that shall include, but is not [be] limited to, a description of
the professional development activities provided to all professional staff and
supplementary school personnel who work with students with disabilities to
assure that they have the skills and knowledge necessary to meet the needs of
students with disabilities. [A
school district or BOCES may include the local CSPD plan as part of the
professional development plan pursuant to section 100.2(dd) of the
commissioner’s regulations.]
(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 the 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;
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 nondisabled 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:
[(1)] (i) . . .
.
[(2)] (ii) . . .
.
[(3)] (iii) . . .
.
[(4)] (iv) . . . .
[(5)] (v) . . . .
(2)
Responsibility to identify and take measurable steps to recruit, hire,
train and retain highly qualified personnel. Each BOCES shall identify and take steps
to recruit, hire, train and retain highly qualified personnel to provide special
education programs and services to students with disabilities served by the
BOCES.
6.
Section 200.3 of the Regulations of the Commissioner of Education is
amended, effective December 12, 2005, as follows:
(a)
Each board of education or board of trustees shall
appoint:
(1)
committees on special education in accordance with the provisions of
Education Law, section 4402, as necessary to ensure timely evaluation and
placement of students. The
membership of each committee shall include, but not be limited
to:
(i)
. . . .
(ii)
[at least] not less than one regular education teacher of the
student whenever the student is or may be participating in the regular education
environment;
(iii)
not less than one special education teacher of the student, or, if
appropriate, [a] not less than one special education provider of the
student;
(iv)
. . . .
(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;
(vi)
. . . .
(vii). . . .
(viii) an
additional parent member of a student with a disability residing in the school
district or a neighboring school district, provided that the additional
parent member may be the parent of a student who has been declassified within a
period not to exceed five years or the parent of a student who has graduated
within a period not to exceed five years. [such] Such parent is not a
required member if the parents of the student request that the additional parent
member not participate in the meeting;
(ix)
. . . .
(x) .
. . .
(2)
committees on preschool special education in accordance with provisions
of Education Law, section 4410 to implement the provisions of section 200.16 of
this Part. The membership of each
committee on preschool special education shall include, but not be limited
to:
(i)
. . . .
(ii)
[a] not less than one regular education teacher of the child
whenever the child is or may be participating in the regular education
environment;
(iii)
[a] not less than one special education teacher of the child, or,
if appropriate, [a] not less than one special education provider of the
child;
(iv)
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 preschool special education
programs and services and other resources of the school district and the
municipality. The representative of
the school district shall serve as the chairperson of the
committee;
(v) .
. . .
(vi)
. . . .
(vii) . . .
.
(viii) . . .
.
(ix)
. . . .
(b) .
. . .
(c)
The board of education in a city school district in a city having a
population in excess of 125,000 inhabitants shall appoint subcommittees on
special education to the extent necessary to ensure timely evaluation and
placement of students with disabilities.
Boards of education or trustees of any school district outside of a city
having a population in excess of 125,000 inhabitants may appoint subcommittees
on special education to assist the board of education in accordance with
Education Law, section 4402(1)(b)(1)(b) and the provisions of this
subdivision.
(1) .
. . .
(2)
The membership of each subcommittee shall include, but not be limited
to:
(i)
. . . .
(ii)
not less than one regular education teacher of the student
whenever the student is or may be participating in the regular education
environment;
(iii)
not less than one of the student’s special education [teacher]
teachers or, if appropriate, [a] not less than one special
education provider of the student;
(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;
(v) .
. . .
(vi)
. . . .
(vii) . . . .
(viii) . . . .
(3) .
. . .
(4) .
. . .
(5) .
. . .
(6) .
. . .
(d) .
. . .
7.
Section 200.4 of the Regulations of the Commissioner of Education is
amended, effective December 12, 2005 as follows:
(a) .
. . .
(1) . . .
.
(2) . . .
.
(3) . . .
.
(4) .
. . .
(5) .
. . .
(6) .
. . .
(7) .
. . .
(8)
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 is not obtained within 30 days of the date of receipt of referral, the
chairperson shall document attempts made by the chairperson or other
representatives of the committee to obtain parental consent, and shall [request
that the board of education initiate an impartial hearing in accordance with
section 200.5(b)(1)(i)(c)] 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) .
. . .
(b)
Individual evaluation and reevaluation. (1) Unless a referral is withdrawn
pursuant to paragraph (a)(7) or (9) of this section, an individual evaluation of
the referred student shall be initiated by a committee on special education and
shall include a variety of assessment tools and strategies, including
information provided by the parent, to gather relevant functional, [and]
developmental and academic information about the student [and] 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)
. . . .
(v) .
. . .
(2) .
. . .
(3) .
. . .
(4) A
committee on special education shall arrange for an appropriate reevaluation of
each student with a disability if [conditions] 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 representative of
the school district appointed to the committee on special education agree
otherwise; and at least once every three years. 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
[reviewing] review and, as appropriate, [revising] 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.
(5)
Determination of needed evaluation data.
(i)
As part of an initial evaluation, if appropriate, and as part of any
reevaluation in accordance with section 200.4(b)(4) of this Part, a group that
includes the committee on special education, and other qualified professionals,
as appropriate, shall review existing evaluation data on the student,
including evaluations and information provided by the parents of the student,
current classroom-based assessments, local or State assessments, [and]
classroom-based observations, and observations by teachers and related
services providers. The group may
conduct its review without a meeting.
(ii)
On the basis of that review, and input from the student’s parents, the
committee on special education and other qualified professionals, as
appropriate, shall identify what additional data, if any, are needed to
determine:
(a)
whether the student has a [particular category of] disability as
defined in section 200.1(mm) or (zz) of this Part, or, in the case of a
reevaluation of a student, whether the student continues to have such a
disability;
(b)
the present levels of [performance] academic achievement and
related [educational] developmental needs of the student,
including the four areas listed in section 200.1(ww)(3)(i) of this
Part;
(c) .
. . .
(d) .
. . .
(iii)
. . . .
(iv)
If additional data are not needed, the school district must notify the
parents of that determination and the reasons for it and of the right of the
parents to request an assessment to determine whether, for purposes of services
under this Part, the student continues to be a student with a disability and
to determine the student’s educational needs. The school district is not required to
conduct the assessment unless requested to do so by the student’s parents.
(6)
School districts shall ensure that:
(i)
[tests and other assessment procedures] assessments and other
evaluation materials used to assess a student under this
section:
(a)
are provided and administered in the student’s native language or other
mode of communication and in the form most likely to yield accurate
information on what the student knows and can do academically, developmentally
and functionally, unless it is clearly not feasible to [do] so provide or
administer;
(b)
[have been validated for the specific purpose for which they are used]
are used for purposes for which the assessments or measures are valid and
reliable;
(c) are
administered by trained and knowledgeable personnel in accordance with the
instruction provided by those who developed such [tests or procedures]
assessments; and
(d)
are selected and administered so as not to be [racially or
culturally] discriminatory on a racial or cultural
basis;
(ii)
. . . .
(iii)
tests and other [assessment procedures] 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)
. . . .
(v)
no single [procedure] measure or assessment is used as the sole
criterion for determining whether a student is a student with a disability [and]
or for determining an appropriate educational program for a
student;
(vi)
. . . .
(vii) . . . .
(viii) . . . .
(ix)
. . . .
(x) .
. . .
(xi)
. . . .
(xii) the
results of the evaluation are provided to the parents [or persons in parental
relationship] in their native language or mode of communication, unless it is
clearly not feasible to do so;
(xiii) . . . .
(xiv) . . . .
(xv) the
procedures for conducting expedited evaluations are conducted pursuant to Part
201 of this Title; [and]
(xvi) materials
and procedures used to assess a student with limited English proficiency are
selected and administered to ensure that they measure the extent to which the
student has a disability and needs special education, rather than measure the
student's English language skills[.] ; and
(xvii) assessments
of students with disabilities who transfer from one school district to another
school district in the same academic 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)
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 to a specific time when the
evaluation will be completed; or
(ii)
the parent of a student repeatedly fails or refuses to produce the
student for the evaluation.
(8)
The screening of a student by a teacher or specialist to determine
appropriate instructional strategies for curriculum implementation shall not be
considered to be an evaluation for eligibility for special
education.
(9)
No student shall be required to obtain a prescription for a drug or other
substance identified under schedule I, II, III, IV, or V in section 202(c) of
the Controlled Substances Act (21 U.S.C. 812(c)) as a condition of receiving an
evaluation under this Part (United States Code, 2000 edition, volume 11;
Superintendent of Documents, U.S. Government Printing Office, Stop SSOP,
Washington, D.C. 20402-0001; available at the Office of Vocational and
Educational Services for Individuals with Disabilities, Room 1624, One Commerce
Plaza, Albany, NY 12234).
(c)
Eligibility Determinations
(1) .
. . .
(2) A
student [may] shall not be determined [to be] eligible for special
education if the determinant factor [for that eligibility determination]
is:
(i) lack of
appropriate instruction in reading, including explicit and systematic
instruction in phonemic awareness, phonics, vocabulary development, reading
fluency (including oral reading skills) and reading comprehension
strategies;
(ii)
lack of instruction in [or] math; or
(iii)
limited English proficiency.
(3) A
school district must evaluate a student with a disability prior to determining
that the student is no longer a student with a disability, in accordance with
paragraph (b)(4) of this section, and the school district must provide a copy of
the evaluation report and the documentation of eligibility to the student's
parent.
(4)
A school district is not required to conduct a reevaluation of a student
before the termination of a student's eligibility due to graduation with a local
high school or Regents diploma or exceeding the age eligibility for a free
appropriate public education but is required to provide such student with a
summary of the student's academic achievement and functional performance, which
shall include recommendations on how to assist the student in meeting his or her
postsecondary goals.
[(4)] (5) . . . .
(6)
Learning disabilities. In
determining whether a student has a learning disability as defined in section
200.1(zz)(6) of this Part, 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.
[Individualized education program (IEP).] 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 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 development of a recommendation, the committee shall ensure that
the appropriateness of the 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 [must] shall
develop an [individualized education program (IEP)] IEP. 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 districtwide assessment programs;
and any special considerations in paragraph (3) of this subdivision. The recommendation shall include the
following:
(i)
Present levels of performance.
The IEP shall report the present levels of academic achievement
and functional performance and indicate the individual needs of the student
according to each of the four areas listed in section [200.1(ww)]
200.1(ww)(3)(i) of this Part, including:
(a)
how the student’s disability affects involvement and progress in the
general education curriculum; or
(b)
for preschool students, as appropriate, how the disability affects the
student’s participation in appropriate activities[; or].
[(c) for
students age 15 (and at a younger age, if determined appropriate), a statement
of the student's needs, taking into account the student's preferences and
interests, as they relate to transition from school to post-school activities as
defined in section 200.1(fff);]
(ii)
Disability classification.
The IEP shall indicate the classification of the disability
pursuant to section 200.1(mm) or (zz) of this Part.
(iii)
Measurable annual goals.
(a) The IEP shall list measurable annual goals, consistent with the
student's needs and abilities[, including benchmarks or short-term instructional
objectives and evaluative criteria, evaluation procedures and schedules to be
used to measure progress toward the annual goals and to be followed during the
period beginning with placement and ending with the next scheduled review by the
committee. Such benchmarks or
short-term instructional objectives shall be measurable, intermediate steps
between present levels of educational performance and the annual goals that are
established for a student with a disability]. The measurable annual goals, including
benchmarks and short-term objectives, must relate to:
[(a)] (1) meeting the
student's needs that result from the student's disability to enable the student
to be involved in and progress in the general education curriculum;
and
[(b)] (2) meeting
each of the student's other educational needs that result from the student's
disability;
(b)
Each annual goal shall include the evaluative criteria, evaluation
procedures and schedules to be used to measure progress toward meeting the
annual goal during the period beginning with placement and ending with the next
scheduled review by the committee.
(c)
The IEP shall identify when periodic reports on the progress the student
is making toward the annual goals (such as through the use of quarterly or other
periodic reports that are concurrent with the issuance of report cards) will be
provided to the student’s parents.
(iv)
Short-term instructional objectives and benchmarks. For a student who takes a New York State
alternate assessment and for each preschool student with a disability, the IEP
shall include a description of the short-term instructional objectives and/or
benchmarks that are the measurable intermediate steps between the student’s
present level of performance and the measurable annual
goal.
(v)
Special education program and services. (a) The IEP shall indicate the
recommended special education program and services as defined in sections
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) of this Part[; the class size, if appropriate; the
supplementary aids and services to be provided to the student, or on behalf of
the student; and a statement of the program modifications or supports for school
personnel] that will be provided for the student:
[(a)] (1) to advance appropriately toward attaining the annual
goals;
[(b)] (2) to be involved and progress in the general
education curriculum and to participate in extracurricular and other
nonacademic activities; and
[(c] (3)) to be educated and participate with other students with
disabilities and nondisabled students in the activities described in this
section[;].
[(v)] (b) The recommended
program and services shall, to the extent practicable, be based on peer-reviewed
research, and as appropriate indicate:
(1)
the regular education classes in which the student will receive
consultant teacher services;
(2)
the class size, as defined in section 200.1(i) of this Part, if
appropriate;
(3)
the supplementary aids and services and program modifications to be
provided to the student or on behalf of the student;
(4)
a statement of supports for school personnel on behalf of the
student;
(5)
the extent to which the student's parents will receive parent counseling
and training as defined in section 200.1(kk) of this Part, when
appropriate;
(6)
any assistive technology devices or services needed for the student to
benefit from education, including the use of such devices in the student’s home
or in other settings;
(7)
the anticipated frequency, duration and location and, for a preschool
student with a disability, the intensity for each of the recommended programs
and services, including the supplementary aids and services and program
modifications to be provided to or on behalf of the
student;
(8)
if the recommendation for a preschool student is for one or more related
services selected from the list maintained by the municipality, or itinerant
services, the child care location arranged by the parent or other site at which
each service shall be provided; and
(9)
the projected date for initiation of the recommended special education
program and services.
(vi)
Testing accommodations. The
IEP shall provide a statement of any individual testing accommodations to be
used consistently by the student in the recommended educational program and in
the administration of districtwide assessments of student achievement and, in
accordance with department policy, State assessments of student achievement that
are necessary to measure the academic achievement and functional performance of
the student.
[(vi)] (vii)
Participation in State and districtwide assessments. [indicate
if] If the student will
[not] participate in an alternate assessment on a particular State or
[local] districtwide [assessments (or part of an assessment), why the
assessment is not appropriate for the student and how the student will be
assessed] assessment of student achievement, the IEP shall provide a
statement of why the student cannot participate in the regular assessment and
why the particular alternate assessment selected is appropriate for the
student.[;]
[(vii)] (viii) Participation in regular programs. The IEP shall
provide:
(a)
an explanation of the extent, if any, to which the student will not
participate in the regular education programs; or
(b)
for preschool students, an explanation of the extent, if any, to which
the student will not participate in appropriate activities with age-appropriate
nondisabled peers;
(c)
identify if the provision of IEP services for a preschool child with a
disability will be in a setting with no regular contact with age-appropriate
peers without disabilities; and
(d)
if a student is not participating in a regular physical education
program, the extent to which the student will participate in specially-designed
instruction in physical education, including adapted physical
education[;].
[(viii) provide for those students age 14 and updated annually, a
statement of the transition service needs of the student under applicable
components of the student's IEP that focuses on the student's courses of study,
such as participation in advanced-placement courses or a vocational education
program;]
(ix)
Transition services. [provide, for] For those students
beginning not later than the first IEP to be in effect when the student
is age 15 (and at a younger age, if determined appropriate), and updated
annually, the IEP shall, under the applicable components of the student’s IEP,
include: [a statement of the student's projected post-school outcomes, based
on the student's needs, preferences, and interests, in the areas of employment,
post secondary education, and community living and a statement of the needed
transition services as defined in section 200.1(fff) of this Part,
including]
(a)
under the student’s present levels of performance, a statement of the
student's needs, taking into account the student's strengths, preferences and
interests, as they relate to transition from school to post-school activities as
defined in section 200.1(fff) of this Part;
(b) appropriate
measurable postsecondary goals based upon age appropriate transition assessments
relating to training, education, employment and, where appropriate, independent
living skills;
(c)
a statement of the transition service needs of the student that focuses
on the student's courses of study, such as participation in advanced-placement
courses or a vocational education program;
(d)
needed activities to facilitate the student’s movement from school to
post-school activities, including instruction, related services, community
experiences, the development of employment and other post-school adult living
objectives and, when appropriate, acquisition of daily living skills and
functional vocational evaluation; and
(e)
a statement of the responsibilities of the school district and, when
applicable, participating agencies for the provision of such services and
activities that promote movement from school to postschool opportunities, or
both, before the student leaves the school setting. [Needed activities shall be provided in
each area specified in section 200.1(fff)(1) through (4) and, as appropriate,
(5) of this Part;]
(x)
[provide a statement of how the student's parents will be regularly
informed of their child's progress, at least as often as parents are informed of
their nondisabled student's progress, toward the annual goals and the extent to
which that progress is sufficient to enable the student to achieve the goals by
the end of the year; (xi)] 12-month services. For students eligible for 12-month
service and/or program, the IEP shall indicate the [projected date for
initiation of special education and related services and supplementary aids and
services, the frequency, location and duration of such services, whether the
student is eligible for a 12-month special service and/or program and the]
identity of the provider of services during the months of July and August,
and, for preschool students determined by the committee on preschool special
education to require a structured learning environment of 12 months duration to
prevent substantial regression, a statement of the reasons for such
recommendation.
(xi)
Projected date of annual review.
The IEP shall indicate the projected date of the review of the
student's need for such services[;].
(xii)
[describe any assistive technology devices or services needed for the
student to benefit from education;
(xiii) provide a
statement of any individual testing accommodations to be used consistently by
the student in the recommended educational program and in the administration of
district-wide assessments of student achievement and, in accordance with
department policy, State assessments of student achievement that are needed in
order for the student to participate in the assessment;
and
(xiv)]
Placement. The IEP
shall indicate the recommended placement.
(3)
Consideration of special factors.
The CSE shall:
(i)
in the case of a student whose behavior impedes his or her learning or
that of others, consider[, when appropriate,] strategies, including positive
behavioral interventions and supports and other strategies to address
that behavior;
(ii)
. . . .
(iii)
. . . .
(iv)
. . . .
(v) .
. . .
(vi)
. . . .
(4)
Such recommendations shall:
(i)
be developed in meetings of the committee on special
education.
(a) .
. . .
(b) .
. . .
(c) .
. . .
(d)
when conducting a meeting of the committee on special education, the
parent and the representative of the school district appointed to the committee
on special education may agree to use alternative means of meeting
participation, such as videoconferences and conference
calls.
(ii)
be developed in conformity with the least restrictive environment
provisions of this Part.
(a) . . . .
(b) . . .
.
(c) . . . .
(d) a student with a disability must not be removed from
education in age-appropriate regular classrooms solely because of needed
modifications in the general education curriculum.
(5) .
. . .
(6) .
. . .
(e)
IEP implementation. (1) Within 60 school days of the receipt of
consent to evaluate for a student not previously identified as having a
disability, or within 60 school days of the referral for review of the student
with a disability, the board of education shall arrange for appropriate special
programs and services, except that if such recommendation is for placement in an
approved in-state or out-of-state private school, the board shall arrange for
such programs and services within 30 school days of the board's receipt of the
recommendation of the committee.
(i)
. . . .
(ii)
The school district shall ensure that each student with a disability has
an IEP in effect at the beginning of each school year.
(2) .
. . .
(3)
The school district shall ensure that the recommendations on a student's
IEP, including changes to the IEP made pursuant to subdivision (g) of this
section, are implemented, including but not limited
to:
(i)
. . . .
(ii)
. . . .
(iii)
. . . .
(iv)
ensuring that a copy of the IEP is provided to the student's parents,
including a revised copy of the IEP at the parent's request with the amendments
developed pursuant to subdivision (g) of this section incorporated, at no
cost to the student's parents.
(4) .
. . .
(5) .
. . .
(6) .
. . .
(7)
The school district must provide special education and related services
to a student with a disability in accordance with the student's IEP and must
make a good faith effort to assist the student to achieve the annual
goals and, if appropriate, short-term instructional objectives or
benchmarks listed in the student's IEP.
(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 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 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)
Transmittal of Records. (a)
To facilitate the transition for a student described in this paragraph, the new
school district in which the student enrolls shall take reasonable steps to
promptly obtain the student's records, including the IEP and supporting
documents and any other records relating to the provision of special education
services to the student, from the previous school in which the student was
enrolled pursuant to 34 C.F.R. section 99.31(a)(2) (Code of Federal Regulations,
2004 edition, Superintendent of Documents, U.S. Government Printing Office, Stop
SSOP, Washington, DC 20402-0001: 2004 – available at the Office of Vocational
and Educational Services for Individuals with Disabilities, Room 1624, One
Commerce Plaza, Albany, NY 12234).
(b)
The previous school in which the student was enrolled shall take
reasonable steps to promptly respond to such request from the new
school.
(9)
The school district shall not require a student with a disability to
obtain a prescription for a drug or other substance identified under schedule I,
II, III, IV, or V in section 202(c) of the Controlled Substances Act (21 U.S.C.
section 812(c)) as a condition of receiving services under this Part (United
States Code, 2000 edition, volume 11; Superintendent of Documents, U.S.
Government Printing Office, Stop SSOP, Washington, D.C. 20402-0001: 2001 -
available at the Office of Vocational and Educational Services for Individuals
with Disabilities, Room 1624, One Commerce Plaza, Albany, NY 12234).
(f)
Annual review [and
reevaluation]. The individualized education program (IEP) of each
student with a disability shall be reviewed and, if appropriate, revised,
periodically but not less than annually to determine if the annual goals for
the student are being achieved. [(1)] Any meeting to develop, review or
revise the IEP of each student with a disability to be conducted by the
committee on special education or subcommittee thereof, pursuant to section
4402(1)(b)(2) of the Education Law, shall be based upon review of a student's
IEP and other current information pertaining to the student's performance.
(1)
Such review shall consider the following factors:
(i)
[consider] the strengths of the student[,];
(ii)
the concerns of the parents for enhancing the education of their
child[,];
(iii)
the results of the initial or most recent evaluation of the
student[,];
(iv)
as appropriate, the results of the student's performance on any
general State or district-wide assessment
programs[,];
(v)
the academic, developmental and functional needs of the
student;
(vi)
the special factors described in paragraph (d)(3) of this section[,];
and
(vii)
the educational progress and achievement of the student with a disability
and the student's ability to participate in instructional programs in regular
education and in the least restrictive environment[; and].
[(ii) upon
consideration of the factors in clause (a) of this paragraph, revise the IEP as
appropriate to address]
(2)
If appropriate, the IEP must be revised to
address:
[(a)] (i)
any lack of expected progress
toward the annual goals and in the general education curriculum or
participation in appropriate activities for preschool students with
disabilities, if appropriate;
[(b)] (ii)
the results of any reevaluation
conducted pursuant to this Part and any information about the student
provided to, or by, the parents;
[(c)] (iii) the student’s
anticipated needs;
[(d)] (iv)
or other matters, including a
student’s need for test accommodations and/or modifications and the student's
need for a particular device or service (including an intervention,
accommodation or other program) in consideration of the special factors
contained in paragraph (3) of subdivision (d) of this section in order for the
student to receive a free appropriate public education.
[(2)](3) . . . .
[(3)] (4) Upon
completion of the annual review, the committee on special education shall notify
the parent of the committee's recommendation in accordance with section
[200.5(a)(4)] 200.5(a) of this Part.
[(4) In
accordance with paragraph (b)(4) of this section, 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.]
(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)
the parent shall receive prior written notice of any changes to the IEP
pursuant to section 200.5(a) of this Part; and
(2)
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.
(h)
Requests to the committee on special education pursuant to section 4005
of the Education Law. (1). . .
.
(2) A
committee on special education which receives such a request
shall:
(i)
. . . .
(ii)
in the event that the parent does not grant consent or fails to
respond to a request for consent, [within five days after receipt of the
request for such consent,] the committee shall notify the board of education [of
the need to initiate a formal impartial hearing to be conducted pursuant to
section 200.5(i)] that they may utilize the 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;
(iii) . . . .
(iv)
. . . .
(3) .
. . .
[(h)] (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) .
. . .
(4) .
. . .
(5) .
. . .
8.
Section 200.5 of the Regulations of the Commissioner of Education is
amended, effective December 12, 2005 as follows:
(a)
Prior written notice and other written notifications. (1) [Written prior] Prior written
notice 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.
(2)
If the prior written notice relates to an action proposed by the
school district that also requires parental consent under subdivision (b) of
this section, the district must give notice at the same time it requests parent
consent.
(3)
The prior written notice must include:
(i)
. . . .
(ii)
. . . .
(iii) . . . .
(iv)
. . . .
(v) a
description of [any other] the factors that the district considered and
the reasons why those options were rejected;
(vi)
. . . .
(vii) . . .
.
(4)
The prior written notice must be written in language
understandable to the general public, and provided in the native language of the
parent or other mode of communication used by the parent, unless it is clearly
not feasible to do so. If the
native language or other mode of communication of the parent is not a written
language, the school district shall take steps to ensure that the notice is
translated orally or by other means to the parent in his or her native language
or other mode of communication; that the parent understands the content of the
notice; and that there is evidence that the requirements of this section have
been met.
(5)
In addition to the requirements of paragraphs (3) and (4) of this
subdivision:
(i)
Upon receipt of a referral for initial evaluation or prior to conducting
a reevaluation, such prior written notice shall include a description of
the proposed evaluation or reevaluation and the uses to be made of the
information and indicate that the parent may submit evaluation information
which, if submitted, shall be considered by the committee on special education
as part of its evaluation or review.
[Notice provided to parents of students referred for a reevaluation must
indicate that the parents have the right to request a test or assessment as part
of the reevaluation to determine whether the student continues to be a student
with a disability under this Part.
(ii)
Upon a board of education's disagreement with the recommendation of the
committee on special education pursuant to section 200.4(e)(2) of this Part, the
notice to the parent and to the committee shall set forth in writing a statement
of the board of education's reasons and indicate 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.]
[(iii)] (ii) Prior to the student's graduation with a local high
school or Regents diploma, such prior written notice must indicate that
the student is not eligible to receive a free appropriate public education after
graduation with the receipt of the local high school or Regents diploma, unless
the school district provides such services to nondisabled students pursuant to
section 3202 of the Education Law.
[(iv)] (iii) Prior to
the student’s graduation with an individualized education program (IEP) diploma,
such prior written notice must indicate that the student continues to be
eligible for a free appropriate public education until the end of the school
year in which the student turns age 21 or until the receipt of a regular high
school diploma.
(6)
Other required notifications.
A parent of a student with a disability shall also be provided written
notification as follows.
(i)
If the committee on special education and other qualified professionals,
as appropriate, determine in accordance with section 200.4(b)(5) of this Part
that no additional data are needed to determine whether the student continues to
be a student with a disability and to determine the student's educational needs,
the school district must notify the parents of that determination and the
reasons for the determination and the right of such parents to request an
assessment to determine whether the student continues to be a student with a
disability and to determine the student's education
needs.
(ii)
Upon a board of education's disagreement with the recommendation of the
committee on special education pursuant to section 200.4(e)(2) of this Part, the
notice to the parent and to the committee shall set forth in writing a statement
of the board of education's reasons and indicate 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.
[(v)] (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).
[(vi)] (iv) . . . .
[(vii)] (v) . . . .
(7)
A parent of a student with a disability may elect to receive prior
written notice and other required notifications by an electronic mail (e-mail)
communication if the school district makes this option
available.
(b)
Consent. (1) 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) .
. . .
(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 [in] is
not warranted, the referral shall be withdrawn. Except in the case of a preschool child,
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 [shall initiate an
impartial hearing to be conducted in accordance with subdivision (i) of this
section for the purpose of determining whether such an evaluation shall be
conducted without parental consent] may pursue the initial evaluation of the
student by utilizing the due process procedures described in this
section;
(ii)
. . . .
(iii) . . . .
(iv)
. . . .
(v) .
. . .
(2) .
. . .
(3)
If the parents of a student with a disability refuse consent for an
initial evaluation or reevaluation, the school district may continue to pursue
those evaluations by using the due process procedures in section 200.5 of this
Part.
(4)
If the parent of the student refuses to consent or fails to respond to a
request to provide such consent to the provision of special education programs
and services, the school district shall not provide the special education
program and services to the student and shall not use the due process procedures
described in this section to challenge the parent's refusal to
consent.
(i)
The school district shall not be considered to be in violation of the
requirements to make available a free appropriate public education to the
student for the failure to provide such student with the special education
program and services for which the school district requests such consent;
and
(ii)
The school district shall not be required to convene a meeting of the
committee on special education or develop an IEP under section 200.4 of this
Part for the special education program and services for which the school
district requests such consent.
(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)
despite reasonable efforts to do so, the school district cannot discover
the whereabouts of the parent of the student; or
(ii)
the rights of the parents of the student have been terminated in
accordance with State law; or
(iii)
the rights of the parent to make educational decisions have been
subrogated by a judge in accordance with State law.
(c)
Notice of meetings. (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.
(2) .
. . .
(d)
Parent participation in CSE meetings. (1) Each school district shall take
steps to ensure that one or both of the student's parents are present at each
committee on special education meeting or are afforded the opportunity to
participate, including:
(i)
. . . .
(ii)
. . . .
(iii)
using other methods to ensure parent participation, including individual
or conference telephone calls [if neither parent can attend] pursuant to
paragraph (7) of this subdivision.
(2) .
. . .
(3) .
. . .
(4) .
. . .
(5) .
. . .
(6) .
. . .
(7)
When conducting a meeting of the committee on special education, the
school district and the parent may agree to use alternative means of
participation, such as videoconferences or conference telephone
calls.
(e) .
. . .
(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)
upon initial referral or parental request for
evaluation;
(ii)
[upon each notification of an IEP meeting;
(iii)
upon reevaluation of the student; and
(iv)] upon
[receipt of a request for] the first filing of a due process complaint notice
to request mediation or an impartial hearing as described in [subdivision
(i)] subdivisions (h) and (j) of this section;
and
(iii)
upon request by a parent.
(4)
The procedural safeguards notice must include a full explanation of all
the procedural safeguards available under this Part relating
to:
(i)
. . . .
(ii)
. . . .
(iii). . . .
(iv)
. . . .
(v)
opportunity to present and resolve due process complaints [to
initiate due process hearings], 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)
. . . .
(vii) . . . .
(viii) . . . .
(ix)
[mediation;
(x)] due
process hearings, including requirements for disclosure of evaluation results
and recommendations;
[(xi)] (x)
. . . .
[(xii)] (xi) civil action, including the time period in which
to file such actions;
[(xiii)] (xii) . . . .
[(xiv)] (xiii) . . .
.
[(xv)]
(xiv) . .
. .
(5)
A school district may place a current copy of the procedural safeguards
notice on its Internet website if such website exists.
(6)
A parent of a student with a disability may elect to receive the
procedural safeguards notice by an electronic mail (e-mail) communication if the
school district makes such option available.
(g) .
. . .
(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 [that, at a minimum, must be available
whenever a hearing is requested under this section], including matters
arising prior to the filing of a request for an impartial hearing pursuant to
subdivisions (j) and (k) of this section. Such procedures must ensure
that:
(i)
the mediation process is voluntary on the part of the
parties;
(ii)
the mediation process is not used to deny or delay a
parent's right to a due process hearing 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;
(iv)
. . . .
(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
(vi)
[an agreement reached by the parties to the dispute in the mediation
process is set forth in a written mediation agreement] 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 be confidential
and may not be used as evidence in any subsequent due process hearing or civil
proceeding. 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 agreement is enforceable in any State court of competent jurisdiction
or in a district court of the United States.
(2)
Opportunity to meet with a disinterested party. A school district may establish
procedures [for] that provide parents and schools who elect not to
use the mediation process the opportunity to meet, at a time and location
convenient to the parents, with a disinterested party who is from a community
dispute resolution center who would explain the benefits of the mediation
process, and encourage the parents to use the process; except that, a school
district may not deny or delay a parent's right to a due process hearing under
this section if the parent elects not to participate in this meeting.
(3)
[The] If the written agreement reached by the parties in mediation
[amends] is inconsistent with the student's IEP [and is binding
upon the parties. The committee on
special education must immediately meet to amend the] then the student's
IEP must be immediately amended to be consistent with the mediation
agreement.
(4) .
. . .
(5)
When conducting meetings and carrying out administrative matters under
this subdivision, the parent and the school district may agree to use
alternative means of meeting participation, such as video conferences and
conference calls.
(i)
Due process complaint notification requirements. (1) A parent or school district may
present a 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)
the name of the student;
(ii)
the address of the residence of the student (or available contact
information in the case of a homeless student);
(iii)
the name of the school the student is
attending;
(iv)
a description of the nature of the problem of the student relating to
such proposed initiation or change, including facts relating to such problem;
and
(v)
a proposed resolution of the problem to the extent known and available to
the party at the time.
(2)
A party may not have an impartial due process hearing until the party, or
the attorney representing the party, files a due process complaint notice that
meets the requirements of paragraph (1) of this
subdivision.
(3)
The due process complaint notice shall be deemed to be sufficient unless
the party receiving the notice notifies the impartial hearing officer and the
other party in writing that the receiving party believes the notice has not met
the requirements of paragraph (1) of this subdivision.
(4)
School district response to the parent. (i) If the school district has
not sent a prior written notice pursuant to subdivision (a) of this section to
the parent regarding the subject matter in the parent's due process complaint
notice, such school district shall, within 10 days of receiving the complaint,
send to the parent a response that shall include:
(a)
an explanation of why the school district proposed or refused to take the
action raised in the complaint;
(b)
a description of other options that the committee on special education
considered and the reasons why those options were
rejected;
(c)
a description of each evaluation procedure, assessment, record or report
the school district used as a basis for the proposed or refused action;
and
(d)
a description of the factors that are relevant to the school district's
proposal or refusal.
(ii)
A response filed by the school district pursuant to this paragraph shall
not be construed to preclude such school district from asserting that the
parent's due process complaint notice was insufficient where
appropriate.
(5)
Other party response. Except
as provided in paragraph (4) of this subdivision, the noncomplaining party
shall, within 10 days of receiving the due process complaint notice, send to the
complaining party a response that specifically addresses the issues raised in
the notice.
(6)
Allegation of insufficient due process complaint notice. (i) Timing. If the party receiving the due process
complaint notice believes the notice has not met the requirements of paragraph
(1) of this subdivision, it shall notify the impartial hearing officer and the
other party in writing within 15 days of receiving the due process complaint
notice.
(ii)
Determination. Within
five days of the receipt of the notice of insufficiency, the impartial hearing
officer shall make a determination on the face of the notice of whether the
notification meets the requirements of paragraph (1) of this subdivision and
shall immediately notify the parties in writing of such
determination.
(7)
Amended due process complaint notice. (i) A party may amend its due process
complaint notice only if:
(a)
the other party consents in writing to such amendment and is given the
opportunity to resolve the complaint through a meeting held pursuant to
subdivision (j)(2) of this section; or
(b)
the impartial hearing officer grants permission, except that the
impartial hearing officer may only grant such permission at any time not later
than five days before an impartial due process hearing
commences.
(ii)
The applicable timelines for an impartial due process hearing, including
the timelines for a resolution session, 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 [may initiate a] 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. [Parental requests must be
in writing.]
[(i)
. . . .]
(i)
Timeline for requesting an impartial hearing. The request for an impartial due process
hearing must be submitted within two years of the date the parent or agency knew
or should have known about the alleged action that forms the basis of the
complaint, except that the two year timeline shall not apply to a parent if the
parent was prevented from requesting the impartial hearing due to specific
misrepresentations by the school district that it had resolved the problem
forming the basis of the complaint or the school district’s withholding of
information from the parent that was required to be provided to the parent under
this Part or under Part 201 of this Title.
(ii)
Subject matter of the impartial due process hearing. The party requesting the impartial due
process hearing shall not be allowed to raise issues at the impartial due
process hearing that were not raised in the notice filed under subdivision (i)
of this section, unless the other party agrees
otherwise.
[(2)] (iii) When [a] an impartial due process hearing is
requested by either party, the school district shall inform the parent
[shall be given notice which shall inform them] in writing of the
availability of mediation and of any free or low-cost legal and other relevant
services available in the area.
(2)
Resolution session. (i) Preliminary meeting. Prior to the opportunity for an
impartial due process hearing under paragraph (1), 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 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.
(ii)
When conducting meetings and carrying out administrative matters (such as
scheduling) under this paragraph, the parent and the school district may agree
to use alternative means of meeting participation, such as video conferences and
conference calls.
(iii)
Waiver of resolution session.
The parent and the school district may agree, in writing, to waive the
resolution session or agree to use the mediation process described in
subdivision (h) of this section to resolve the
dispute.
(iv)
Written settlement agreement.
If 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.
If the school district has not resolved the 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 subdivision (j) of this
section shall commence.
(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, [The] the board of education shall arrange for [such a]
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)
The rotational selection process must be initiated immediately, but not
later than two business days after receipt by the school district of the
[written request for the hearing] due process complaint notice or mailing of
the due process complaint notice to the parent.
(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 [being appointed by the school
district] the time period specified in clause (a), (b) or (c) of subparagraph
(iii) of this paragraph.
(ii)
. . . .
(iii)
Unless an extension is granted pursuant to subparagraph (5)(i) of this
subdivision, [The] the hearing, or a prehearing conference, shall [be
scheduled to begin] commence within the first 14 days [of the impartial
hearing officer's appointment, unless an extension is granted pursuant to
subparagraph (4)(i) of this subdivision] 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.
(iv)
. . . .
(v) .
. . .
(vi)
. . . .
(vii) . . . .
(viii) . . . .
(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, [at least] 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) .
. . .
(c) .
. . .
(d) .
. . .
(e) .
. . .
(f)
. . . .
(g) .
. . .
(xiii) . . . .
(xiv) . . . .
(xv) . . .
.
(xvi) . . . .
(xvii) When carrying
out administrative matters relating to an impartial due process hearing, such as
scheduling, exchange of witness lists and status conferences, the parent and the
school district may agree to use alternative means of meeting participation,
such as video conferences and conference calls.
(4)
Decision of the impartial hearing officer. (i) In general. Subject to subparagraph (ii), a decision
made by an impartial hearing officer shall be made on substantive grounds based
on a determination of whether the student received a free appropriate public
education.
(ii)
Procedural issues. In
matters alleging a procedural violation, an impartial hearing officer may find
that a student did not receive a free appropriate public education only if the
procedural inadequacies impeded the student's right to a free appropriate public
education, significantly impeded the parent's opportunity to participate in the
decision-making process regarding the provision of a free appropriate public
education to the parent's child, or caused a deprivation of educational
benefits. Nothing in this paragraph
shall be construed to preclude an impartial hearing officer from ordering a
school district to comply with procedural requirements under this Part and Part
201 of this Title.
(5)
Timeline to render a decision.
Except as provided in section 200.16(g)(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 [after the
receipt by the board of education of a request for a hearing or after the
initiation of such a hearing by the board] from the date required for
commencement of the impartial hearing in accordance with paragraph (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)
. . . .
(ii)
. . . .
(iii) . . . .
(iv)
. . . .
(v) .
. . .
[(j)] (k) . . .
.
[(k)] (l)
. . . .
[(l)] (m) Student's status during proceedings. (1) Except as otherwise provided in
paragraph (2) of this subdivision and section 200.16 and Part 201 of this Title,
during the pendency of any proceedings conducted pursuant to subdivision [(i)
or] (j) or (k) of this section, unless the local board of education and
the parents otherwise agree, the student shall remain in the then current
placement of such student. During
the pendency for any due process proceeding relating to the evaluation and
initial placement in special education, unless the local board of education and
the parents otherwise agree, the student shall not be evaluated and shall remain
in the then current educational placement of such student or, if applying for
initial admission to a public school, shall be placed in the public school
program until all such proceedings have been completed.
(2)
If a decision of a State review officer, pursuant to subdivision [(j)]
(k) of this section, agrees with the student's parents that a change of
placement is appropriate, that placement must be treated as an agreement between
the State or school district and the parents for purposes of pendency during any
subsequent appeals pursuant to paragraph [(j)(3)] (k)(3) of this
section.
[(m)] (n) Surrogate parents.
(1) Duty of the board
of education. The board of
education or other appropriate body shall select a surrogate parent from a list
of individuals who are eligible and willing to serve as surrogate parents in
order to ensure that the rights of a student are protected
if:
(i)
. . . .
(ii)
the school district, after reasonable efforts cannot discover the
whereabouts of a parent, or the student is an unaccompanied homeless youth,
as such term is defined in section 100.2(x)(1)(vi) of this Title;
or
(iii)
the student is a ward of the State and does not have a parent as
defined in section 200.1(ii) of this Part or the rights of the parent to make
educational decisions on behalf of the student have been subrogated by a judge
in accordance with State law.
(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. [This] The
determination of the need for a surrogate parent shall be completed
within a reasonable time following the receipt of [the original request for a
surrogate parent] 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 clause (v) or (vi) 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)
The surrogate parent alternatively may be appointed by the judge
overseeing the child’s case, provided that the surrogate parent meets the
requirements in paragraph (2) of this section. The individual appointed by the judge
need not be appointed from a list approved by the board of
education.
9.
A new subdivision (m) is added to section 200.6 of the Regulations of the
Commissioner of Education, effective December 12, 2005, as
follows:
(m)
Interim alternative education setting (IAES). Students with disabilities who have been
suspended or removed from their current placement for more than 10 school days
pursuant to Part 201 may be placed in an IAES. The IAES, to the extent provided in Part
201 of this Title, shall be an educational setting, other than the student's
current placement at the time the behavior precipitating the IAES placement
occurred. A student placed in an
IAES shall:
(1)
continue to receive educational services so as to enable the student to
continue to participate in the general education curriculum, although in another
setting and to progress toward the goals set out in the student's IEP;
and
(2)
receive, as appropriate, a functional behavioral assessment and
behavioral intervention services and modifications that are designed to address
the behavior violation so that it does not recur.
10.
Paragraph (4) of subdivision (c) and subdivision (d) of section 200.7 of
the Regulations of the Commissioner of Education are amended, effective December
12, 2005, as follows:
(4)
An educational progress report on each student, which describes such
student's progress toward meeting the annual goals, shall be provided by the
approved school to the committee on special education of the referring district
or the referring agency at least annually.
Other required data and/or reports shall be made available by the private
school to the referring district or agency on request.
(d)
Appointment of blind, deaf and severely physically disabled students to
certain State-operated and State-supported schools pursuant to articles 85, 87
and 88 of the Education Law, chapter 1060 of the Laws of 1974 and chapter 474 of
the Laws of 1996.
(1)
Application for State appointment of deaf, blind, severely physically
disabled or severely emotionally disturbed students to State-operated or
State-supported schools for the blind, deaf, severely physically disabled or
severely emotionally disturbed shall be initiated by parents through application
to the commissioner, supported by adequate written evidence of blindness,
deafness or severe disability, or by the committee on special education or
committee on preschool special education of the school district responsible for
the student. The commissioner or
the committee on special education or committee on preschool special education
will direct the parents to make arrangements at a State-operated or
State-supported school designated by the commissioner for an evaluation. Such school shall evaluate the student's
special educational needs and eligibility for its program.
(i)
. . . .
(a) .
. . .
(b) .
. . .
(c) .
. . .
(d) .
. . .
(e) .
. . .
(f) In the case
of a student not recommended for appointment to a particular State-operated
school, or in the event of a change in a recommendation concerning the
classification, placement or provision of a free appropriate public education to
a student at a State-operated school, the State-operated school shall notify the
parent. Such notification shall be
comparable to that required by section 200.5(a) of this Part, shall include all
reasons for lack of acceptance of the student into the program or for the change
in the recommendation, and shall include suggestions for more appropriate
placement or program. The parent
may request mediation or may, in accordance with section 200.5(i) of this
Part, file with the department a written request for a hearing before an
impartial hearing officer who will be designated by the department. Such hearing officer shall not be an
employee of the department. The
procedures relating to a resolution session, the conduct of the hearing
and review of the decision of the hearing officer shall be comparable to those
set forth in section [200.5(i)] 200.5(j) through [(j)] (k) of this
Part.
(ii)
. . . .
(iii)
with respect to an application for admission of a preschool student with
a disability to a State-supported school, the school shall report the results of
its evaluation to the committee on preschool special education. Upon receipt of such report, the
committee on preschool special education shall conduct a meeting in accordance
with the provisions of section 200.16 of this Part. The committee may recommend that the
commissioner appoint the student to the State-supported school, or it may
recommend a different placement. If
the parents disagree with the recommendation of the committee on preschool
special education, they may request mediation [or] and/or [that the board
of education appoint an impartial hearing officer] submit a request for a due process impartial hearing pursuant
to sections 200.5(i) and (j) of this Part to review that
recommendation[,]. [and the]
The impartial hearing officer shall consider, together with all other
relevant information, the evaluation conducted by the State-supported
school. If the committee on
preschool special education has recommended a placement other than the
State-supported school, and the impartial hearing officer finds that such
recommendation is inappropriate and that placement in the State-supported school
would be appropriate, the impartial hearing officer may order that the
board of education recommend to the commissioner that the student be placed in
the State-supported school. The
decision of the impartial hearing officer may be appealed in accordance
with section 4404 of the Education Law.
(2) .
. . .
(3) .
. . .
(4) .
. . .
(5) .
. . .
(6) .
. . .
(7) .
. . .
(e) .
. . .
11. Subdivisions (d) and
(e) of section 200.14 of the Regulations of the Commissioner of Education are
amended, effective December 12, 2005, as follows:
(d)
Recommendation. [Individualized education program
(IEP).]
(1)
The results of the individual evaluation described in subdivision (c) of
this section, as well as the suggestions of the treatment team, including the
type, frequency and duration of services needed to meet the student’s mental
health and educational needs, shall be used in the development of the [IEP]
individualized education program (IEP).
(2)
Individualized education program (IEP). The IEP shall be developed, pursuant to
section 200.4 of this Part, in meetings of the committee on special
education. A representative of the
treatment team shall be given the opportunity to attend. In the event that such representative is
unable to attend such meetings, the committee shall attempt alternative means of
assuring the representative's participation, such as individual or conference
telephone discussions, and such attempts shall be documented. Referral to the committee on special
education for review of the IEP shall be conducted pursuant to section 200.4(d)
of this Part.
(e)
Student progress reports.
(1) .
. . .
(2) .
. . .
(3)
An annual review and reevaluation of each student's IEP shall be
conducted pursuant to [section 200.4(e)] sections 200.4(b) and (f) of
this Part and subdivision (d) of this section.
12. Section
200.16 of the Regulations of the Commissioner of Education is amended, effective
December 12, 2005, as follows:
200.16 Educational programs
for preschool students with disabilities
Educational programs and services for preschool students with
disabilities, as defined in section 200.1(mm) of this Part, shall be provided in
accordance with this section, and those other applicable provisions of this Part
that are not inconsistent with this section. Where other provisions of this Part are
made applicable to preschool students with disabilities, committee on special
education shall mean a committee on preschool special education; student shall
mean a preschool student with a disability; and programs shall mean preschool
programs.
(a) .
. . .
(b)
[Procedures for referral, evaluation, individualized education program
development, placement and review.]
(1) Referral . . . .
(c)
Individual evaluation and reevaluation. (1) . . . .
(2) .
. . .
(3) .
. . .
(4) .
. . .
(5) .
. . .
[(6)] (d) Evaluations and eligibility determinations. (1) Upon the completion of the
administration of tests and other evaluation materials, the committee must
determine whether the student is a preschool student with a disability, as
defined in section 200.1(mm) of this Part.
(2)
[For purposes of eligibility and continuing eligibility determinations]
Upon completion of the administration of assessments and other evaluation
measures, the committee must provide a copy of the evaluation report and the
documentation of determination of eligibility to the
parent.
[(7)] (3) . . . .
[(8)] (4) . . . .
(5)
A committee on preschool special education shall provide for an
appropriate reevaluation of a preschool student with a disability in accordance
with section 200.4(b)(4), (5) and (6) of this Part.
[(d)] (e) Recommendation.
[Individualized education program (IEP).]
(1) .
. . .
(2) .
. . .
(3)
Individualized education program (IEP). If the committee determines that the
preschool child has a disability, the committee shall recommend approved
appropriate services and/or special programs and the frequency, duration,
location and intensity of such services including, but not limited to, the
appropriateness of single services or half-day programs based on the individual
needs of the preschool child. The
committee shall first consider the appropriateness of providing (i) related
services only; or (ii) special education itinerant services only; or (iii)
related services in combination with special education itinerant services; or
(iv) a half-day preschool program as defined in section [200.1] 200.1(u)
of this Part; or (v) a full-day preschool program as defined in section
200.1(p) of this Part. If the
committee determines that the child demonstrates the need for a single related
service, such service shall be provided as a related service only or, where
appropriate, as a special education itinerant service. The IEP recommendation shall be
developed in accordance with section 200.4(d)(2), (3) and (4) of this Part
[provided that subparagraphs (2)(v), (viii), and (ix) of such section shall not
apply]. In addition, the
recommendation for special education programs and services for a preschool
student with a disability shall:
(iv)] (i) prior to recommending the provision of special education
services in a setting which includes only preschool children with disabilities,
the committee shall first consider providing special education services in a
setting where age-appropriate peers without disabilities are typically
found. Provision of special
education services in a setting with no regular contact with age-appropriate
peers without disabilities shall be documented on the child’s IEP and shall only
be considered when the nature or severity of the child’s disability is such that
education in a less restrictive environment with the use of supplementary aids
and services cannot be achieved satisfactorily; and
(vi)] (ii) . . . .
(4)
The committee’s recommendation shall be developed at a meeting of the
committee on preschool special education in accordance with section 200.4(d)(4)
of this Part and section 4410 of the Education Law. To the extent possible, any meeting of
the committee shall be held at a site and time mutually convenient to the
members of the committee and the parent of the preschool student, including but
not limited to the worksite of the evaluator, the municipal representative on
the committee, or the chairperson of the committee. The committee’s recommendation shall be
developed following a review of information presented by the preschool student’s
teacher(s) and/or the parent, the evaluation results provided by the approved
program, results of other evaluations, and any other appropriate information
provided by an agency charged with responsibility for the student. However, if the committee determines
that a child requires a structured learning environment of 12 months duration to
prevent substantial regression, the committee shall include in its
recommendation a statement of the reasons for such recommendation as part of the
IEP document.
(5) .
. . .
(6) .
. . .
(7) .
. . .
[(e)] (f) Provision of services for preschool students with
disabilities. (1) . . .
.
(2) .
. . .
(3) .
. . .
(4) .
. . .
(5) .
. . .
(6)
The IEP of a preschool student with a disability shall be implemented in
accordance with section 200.4(e)(1)(i) and (ii), (3), (4), [and]
(7), (8) and (9) of this Part, except that during the pendency of
proceedings conducted pursuant to paragraphs [(g)(9)] (h)(9) and (10) of
this section, the placement of a preschool student shall be as provided in
paragraph [(g)(3)] (h)(3) of this section.
[(f)] (g) Annual
review. The individualized
education program (IEP) of each preschool student with a disability shall be
reviewed and, if appropriate, revised periodically but not less
frequently than annually in accordance with section [200.4(f)(1) through
(3)] 200.4(f) of this Part.
In any such meeting of the committee, the professional who participated
in the evaluation shall upon request of the parent or committee, attend and
participate at such meeting.
[(g)] (h) Procedural
due process. (1) Prior
written notice of initial evaluation, review or reevaluation of a
preschool student with a disability shall be made in accordance with section
[200.5(a)(1) through (4) and (5)(i), (ii) and (vii)] 200.5(a) of this
Part.
[(i)
. . . .]
(2) .
. . .
(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
[subparagraph (2)(i) of this subdivision] section 200.5(f)(4) of this
Part, the procedural safeguards notice shall also:
(i)
indicate that during the pendency of any proceedings conducted pursuant
to this Part, those preschool students with disabilities who are receiving
special education programs or services pursuant to section 4410 of the Education
Law shall remain in the then current education placement of such preschool
student until all such proceedings have been completed, except as otherwise
provided in section [200.5(l)] 200.5(m) of this Part. Nothing in this subparagraph shall
require that a student with a disability remain in a preschool program for which
he or she is no longer eligible pursuant to section 4410 of the Education Law
during the pendency of any proceeding brought pursuant to this
Part;
(ii)
. . . .
(iii)
. . . .
(iv)
. . . .
(4) .
. . .
(5)
Notice upon recommendation.
Prior written notice of the recommendation of the committee on
preschool special education shall be provided to the board of education and to
the parent of the preschool student in accordance with section 200.5(a) of this
Part. The notice upon
recommendation shall indicate that, in the event that the parent does not
provide consent for the initial provision of special education services, no
further action will be taken by the committee on preschool special education
until such consent is obtained.
(6) .
. . .
(7) .
. . .
(8) .
. . .
(9)
Impartial due process hearings. Impartial due process hearings
shall be conducted in accordance with section [200.5(i)] 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 or after the
initiation of such hearing by the board.
(10) Appeal to a
State review officer. Decisions of
impartial hearing officers shall be subject to the review of a State review
officer of the State Education Department in accordance with section [200.5(j)]
200.5(k) of this Part.
(11) State
complaints. State complaint
investigations shall be conducted in accordance with section [200.5(k)]
200.5(l) of this Part.
(12) Surrogate
parents. Surrogate parents shall be
appointed in accordance with section [200.5(m)] 200.5(n) of this
Part.
(13) . . .
.
[(h)] (i)
. . . .
13.
Subdivisions (k) and (l) of section 201.2 of the Regulations of the
Commissioner of Education is amended, a new subdivision (m) is added and
subdivisions (m) through (r) are relettered as (n) through (s), effective
December 12, 2005, as follows:
(k)
Interim alternative educational setting or IAES means a temporary
educational placement [for a period of up to 45 days] determined by the
committee on special education, other than the student’s current placement
at the time the behavior precipitating the IAES placement occurred[, that
enables the student to continue to].
A student who is placed in an IAES shall:
(1)
continue to receive educational services so as to enable the student to
continue to [progress] participate in the general education
curriculum, although in another setting[, to continue to receive those services
and modifications, including those described on the student’s current IEP, that
will enable the student to meet the goals set out in such IEP and include
services and modifications to address the behavior which precipitated the IAES
placement that are designed to prevent the behavior from recurring] and to
progress toward meeting the goals set out in the student’s IEP;
and
(2)
receive, as appropriate, a functional behavioral assessment and
behavioral intervention services and modifications that are designed to address
the behavior violation so that it does not recur.
(l)
Removal means: (1) a removal of a student with a disability for
disciplinary reasons from that student’s current educational placement, other
than a suspension as defined in subdivision [(q)] (r) of this Part;
and
(2) .
. . .
(m)
Serious bodily injury means bodily injury which involves a substantial
risk of death, extreme physical pain, protracted and obvious disfigurement or
protracted loss or impairment of the function of a bodily member, organ or
mental faculty.
[(m)] (n) . . .
.
[(n)] (o) . . .
.
[(o)] (p) . . .
.
[(p)] (q) . . .
.
[(q)] (r) . . .
.
[(r)] (s)
. . . .
14. Section
201.3 of the Regulations of the Commissioner of Education is amended, effective
December 12, 2005, as follows:
201.3 CSE responsibilities
for functional behavioral assessments and behavioral intervention plans. When
a student with a disability is suspended or removed from the student’s current
placement for more than 10 consecutive school days or when a suspension or
removal constitutes a disciplinary change of placement and the student’s conduct
is a manifestation of the student’s disability, the committee on special
education shall:
(a)
[Initial requirement to conduct assessment and develop plan or to review
existing plan. Not later than 10
business days after first suspending or removing a student with a disability for
more than 10 school days in a school year or imposing a suspension or removal
that constitutes a disciplinary change in placement, including a change in
placement to an IAES pursuant to section 201.7(e) of this Part for behavior
involving carrying or possessing a weapon or possession or use of an illegal
drug or selling or soliciting the sale of a controlled
substance:
(1)
If the school district did not conduct a functional behavioral assessment
and implement a behavioral intervention plan for the student before the behavior
that resulted in the suspension or removal, the school district shall convene a
meeting of the CSE to develop an assessment plan. As soon as practicable after developing
such behavioral assessment plan, and completing the assessments required by the
plan, the school district shall convene a meeting of the CSE to develop
appropriate behavioral interventions to address that behavior and shall
implement those interventions; and] conduct a functional behavioral
assessment and implement a behavioral intervention plan for such student,
provided that the school district had not conducted such assessment prior to the
manifestation determination before the behavior that resulted in the change in
placement; or
[(2)]
(b) if the student
already has a behavioral intervention plan, the CSE shall meet to review such
plan and its implementation and modify the plan and its implementation as
necessary, to address the behavior that resulted in the change in
placement.
[(b)] (c) . . . .
15. Section
201.4 of the Regulations of the Commissioner is amended, effective December 12,
2005, as follows:
(2)
Upon a determination by the [CSE] 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. 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 [CSE] 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.
(3)
Notwithstanding the provisions of paragraphs (1) and (2) of this
subdivision, if the superintendent or hearing officer in the superintendent's
hearing is considering the change in placement of a student with a disability to
an IAES pursuant to section 201.7(e) of this Part, upon a determination that the
student is guilty of the alleged misconduct relating to serious bodily
injury, weapons, illegal drugs or controlled substances, the superintendent
of schools may order, or the hearing officer in the superintendent's hearing may
recommend, such change in placement to an IAES, to be determined by the CSE, for
up to 45 school days, but not to exceed the length of time that a
nondisabled student would be suspended for the same misconduct under the school
district's student discipline policy. The superintendent of schools may order
such change in placement of a student with a disability to an IAES, directly or
upon recommendation of a hearing officer in the superintendent's hearing, even
where the [CSE] manifestation team determines that the student's behavior
is a manifestation of the student's disability.
(4)
The penalty phase of a superintendent's hearing for a student with a
disability or a student presumed to have a disability for discipline purposes
shall be conducted in the same manner as the penalty phase of a hearing
involving a nondisabled student, including the admission of anecdotal evidence
of past instances of misconduct. The school district shall assure that copies of
the special education and disciplinary records of the student are transmitted to
the superintendent of schools or hearing officer in the superintendent's hearing
for consideration. Such records shall be transmitted whether or not the [CSE]
manifestation team has determined that the student's behavior is a
manifestation of the student's disability.
(5)
Nothing in this section shall be construed to authorize the suspension or
removal of a student with a disability from his or her current educational
placement for violation of school rules following a determination by the [CSE]
manifestation team that the behavior is a manifestation of the student's
disability, except where the student is placed in an IAES for behavior involving
serious bodily injury, weapons, illegal drugs or controlled substances
pursuant to section 201.7(e) of this Part or the student is placed in an IAES by
an impartial hearing officer pursuant to section 201.8 of this Part.
20. Subdivisions (c), (d)
and (e) of section 201.10 of the Regulations of the Commissioner of Education
are amended, effective December 12, 2005, as follows:
(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
[appropriately progress] continue to participate in the general
education curriculum and [appropriately advance] to progress
toward [achieving] 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 [building principal,
superintendent of schools or other school officials imposing the suspension, or
other school personnel delegated such authority, shall determine, in
consultation with the student's special education teacher, the extent to which
services are necessary to enable the student to appropriately progress in the
general curriculum and appropriately advance toward achieving the goals set out
in the student's IEP] CSE shall determine the services to be provided to the
student.
(d) During suspensions or other disciplinary removals for periods in
excess of 10 school days in a school year which [do] constitute a disciplinary
change in placement for behavior [that has been determined by the CSE not to be
a manifestation of the student's disability], students with disabilities shall
be provided with services, as determined by the CSE, necessary to enable
the student to [appropriately progress] continue to participate in the
general education curriculum [and appropriately advance], to
progress toward [achieving] 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 extent to which services are necessary to enable the student to
appropriately progress in the general curriculum and appropriately advance
toward achieving the goals set out in the student's IEP.]
(e)
[Notwithstanding any other provision of this section to the contrary,
the] The interim alternative educational setting and the services to be
provided to a student placed in an interim alternative educational setting
[pursuant to section 201.7(e) of this Part] shall be determined by the CSE [and
the setting to be provided to a student placed in an IAES pursuant to section
201.8 of this Part shall be determined by the impartial hearing officer upon
receipt of a proposed setting by school personnel who have consulted with the
student's special education teacher]. Such [setting] services shall:
(1)
[be selected so as to] enable the student to continue to [progress]
participate in the general education curriculum, although in
another setting, and [to continue to receive those modifications, including
those described in the student's current IEP, that will enable the child to
meet] to progress toward meeting the goals set out in that IEP; and
(2)
include, as appropriate, a functional behavioral assessment and
behavioral intervention services and modifications to address the behavior
that is subject to disciplinary action, that are designed to prevent the
behavior from recurring.
21.
Subdivisions (b) and (d) of section 201.11 of the Regulations of the
Commissioner of Education is amended, effective December 12, 2005, as
follows:
(b)
An expedited due process hearing shall be conducted in accordance with
the procedures specified in [34 C.F.R. sections 300.508 and 300.509 (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) and subdivision (i) of section 200.5
of this Title] section 200.5(j) of this Part, except as follows:
(1) . . . .
(2) . . . .
(d)
If a parent requests a hearing or an appeal regarding the change in
placement of a student to an IAES by a superintendent of schools [pursuant to a
change in placement to an IAES pursuant to section 201.7(e) of this Part for
behavior involving carrying or possessing a weapon or illegal drug or controlled
substances], or regarding a change in placement [to an IAES] by an impartial
hearing officer pursuant to section 201.8 of this Part where the school district
maintains that it is dangerous for the student to remain in his or her current
educational placement, or regarding a determination that the behavior is not a
manifestation of the student's disability for a student who has been placed in
an IAES, the student shall remain in the IAES pending the decision of the
impartial hearing officer or until expiration of the time period determined in
accordance with section [201.7(e)] 201.7 or [in accordance with] section
201.8 of this Part, as applicable, [but not to exceed 45 days,] whichever occurs
first, unless the parents and the school district otherwise agree.
(e) . . . .
