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

ASSESSMENT OF PUBLIC COMMENT

          Since publication of a Notice of Proposed Rule Making in the State Register on June 8, 2005, the State Education Department received the following comments.

 1.  COMMENTS:

          New York State (NYS) should not adopt or conform to the new Individuals with Disabilities Education Act (IDEA) requirements and should continue to provide more protection to students with disabilities and their parents than is provided for in the reauthorized IDEA  ("IDEA 2004").  No changes to State regulations should be made in areas that are subject to further clarification by federal regulations.    The proposed regulations should support Congress’ efforts toward flexibility and not limit the rights of parents and school districts legislated by IDEA 2004.  Others indicated that the  proposed regulations are consistent with the new federal requirements.

DEPARTMENT RESPONSE:

          Failure to conform State regulations to IDEA 2004 would result in a conflict between State regulations and federal law that could expose both the State and school districts to liability, adversely affect their eligibility for funding under the IDEA, and  deny students with disabilities, parents and school districts the benefits that they are intended to receive from the reforms made by IDEA 2004.  

 2. COMMENTS:

          State regulations should include federal and statutory authority citations after each section.

DEPARTMENT RESPONSE:

          The proposed amendments were developed consistent with the State Administrative  Procedure Act and the Department believes that this change is not necessary.

3. COMMENTS:

Some individuals recommended NYS not participate in the Paperwork Reduction Pilot Program but should concentrate on improving the quality of annual goals, short-term objectives and transition plans and ensuring that special education services statewide meet and exceed our standards before seeking ways to reduce paperwork.  Many parents expressed concern that paperwork burdens targeted for elimination may be related to civil rights and free appropriate public education (FAPE).  Others recommended NYS take full advantage of every opportunity to reduce paperwork burdens on teachers and administrators.

DEPARTMENT RESPONSE:

          The comments are beyond the scope of the proposed rulemaking, which does not include amendments related to the Paperwork Reduction Pilot Program.

 4. COMMENTS:

          For fiscal and educational reasons, NYS should not provide the option for a parent to retain his or her child in an early intervention program until age five. 

DEPARTMENT RESPONSE:

          The comments are beyond the scope of the proposed rulemaking, which does not include amendments that would provide a parent the option to retain his or her child in an early intervention program until age five.

 5.  COMMENTS:

          NYS should require schools to use Title 1 funds and No Child Left Behind (NCLB) funds for early intervening services and retain IDEA funds for special education.

DEPARTMENT RESPONSE:

          States may not limit the use of federal funds by local educational agencies (LEAs) unless authorized by federal law or regulation.

Section 100.2(x) – Homeless Youth

6.COMMENTS:

          The proposed regulation that would require comparable services to students with disabilities who are homeless is appropriate.

DEPARTMENT RESPONSE:

          Because of the nature of the comment, no response is necessary.

Section 100.2(dd) – Professional Development Plan

 7. COMMENTS:

          One individual stated that the Comprehensive System of Personnel Development Plan (CSPD) should be a separate document from the Professional Development Plan (PDP) and professional development plans for special educators will lose its purpose if blended with the PDP.  Others supported the repeal of CSPD, but recommended that the PDP be structured to focus on outcomes.

DEPARTMENT RESPONSE:

          The proposed amendment is consistent with IDEA 2004’s intent that personnel development activities be integrated and aligned, to the maximum extent possible, with plans developed under the requirements of the Elementary and Secondary Education Act (ESEA).  School districts should continue to identify and incorporate professional development needs of school personnel providing special education services in consideration of a data-driven school improvement planning process.

Section 200.1 – Definitions

8. COMMENTS:

          The proposed definition of “assistive technology device” recognizes that surgically implanted medical devices should be the responsibility of the family and the cost should be borne by the family and medical insurance.

DEPARTMENT RESPONSE:

          Because of the nature of the comment, no response is necessary.

9.  COMMENTS:

          The proposed change in the definition of “impartial hearing officer” is a positive change, which provides explicit qualification requirements for hearing officers.

DEPARTMENT RESPONSE:

          Because of the nature of the comment, no response is necessary.

10. COMMENTS:

          The expanded definition of “mediator” is supported because it requires the mediator to be knowledgeable about laws and regulations relating to special education.

DEPARTMENT RESPONSE:

          Because of the nature of the comment, no response is necessary.

11.  COMMENTS:

          The term “limited English proficient” should be defined to mean “a student who, by reason of foreign birth or ancestry, speaks a language other than English and either understands and speaks little or no English or scores below a State designated level of proficiency as defined in section 154.2(a) of this Title.”

DEPARTMENT RESPONSE:

          No revisions to the proposed definition of “limited English proficient student” have been made since the definition in section 154.2(a) of the Commissioner's Regulations is more comprehensive than the recommended definition.

12.   COMMENTS:

          The term “related services” should be revised to include the exception for a surgically implanted device or the replacement of such a device; to replace the term  “appropriate access to recreation” to be consistent with IDEA, which references “recreation, including therapeutic recreation;” and to clarify what is meant by the phrase “appropriate access to recreation, including therapeutic recreation” . 

DEPARTMENT RESPONSE:

          Section 200.1(qq), relating to the definition of “related services”, has been revised to add that the term “related services” does not include a medical device that is surgically implanted, or the replacement of such device.  The proposed amendment relating to access to recreation is a technical change to conform to State law.

13. COMMENTS:

The addition of 'interpreting services' in the definition of "related services" was supported and it was recommended that the Department release the proposed preparation requirements for educational interpreters.  

DEPARTMENT RESPONSE:

          The comment requires no revisions to the proposed regulations. 

14.  COMMENTS:

          The definition of “parent” should ensure that kinship foster parents could serve as the parent or surrogate parent for the child.  The term 'natural’ parent should be changed to 'birth’ parent.  The term 'extinguished' should be changed to 'terminated or surrendered.'  The regulation should clarify that a kinship foster parent is a foster parent, not an individual acting in the place of a natural or adoptive parent or person in parental relation.  The regulation must include reference to the caregiver legislation that allows a parent to appoint another person to be a person in parental relation.  Language should be added that when more than one party meets the definition of parent, the birth or adoptive parent should be presumed to be the party authorized to provide consent, unless the birth or adoptive parent does not have legal authority to make such decisions.   Language should also be added that if a judicial decree or order identifies a specific person to act as a parent or make educational decisions on behalf of a child, such person shall be considered a 'parent' under this definition.  In addition, the definition should clarify that the term 'public agency' includes private agencies that contract with a public agency to provide education or care for a child and that a parent's 'parental rights' must have been terminated or surrendered in order for a foster parent to act as a parent. 

          The  definition of "parent" should be revised to remove limitations on the ability of foster parents to act as parents.  Congress broadened the definition of parent to include other relatives, as well as foster parents, within the definition of parent and removed any federal limitations on the ability of a foster parent to act as a parent.  A foster parent should not be limited to act as the parent where a foster parent is ready and willing to make educational decisions.

          The definition of "parent" should not be expanded.  The term  'caretaker'  should be included as an alternative to “parent”, but not included in the definition.  The role of the caretaker should be defined especially in regards to his/her legal responsibilities toward the child.

DEPARTMENT RESPONSE:

          Section 200.1(ii), relating to  the definition of parent, has been revised to include individuals designated by Title 15-A of the General  Obligations Law, as added by Chapter 119 of the Laws of 2005; to replace the term  'natural parent'  with  'birth parent;'  to add that a foster parent may act as the parent unless State law, regulations or contractual obligations with a State or local entity prohibit the foster parent from acting as a parent; to add that the birth or adoptive parent must presumed to be the parent when there is more than one individual that meets the definition of parent; and to add that an individual identified through a judicial decree or order may make educational decisions on behalf of the parent, except that a public agency that provides education or care for the student shall not act as the parent.

15. COMMENTS:

The definition of “school health services” should be revised to have a separate definition for “school nurse services.”

DEPARTMENT RESPONSE:

          There are no revisions to the proposed definition of “school health services;” however, this definition may need to be revised upon adoption of final federal regulations.

16. COMMENTS:

The definition of “learning disabilities” should include a cross citation to section 200.4, concerning the procedures to identify a student as having a learning disability.  Further guidance is necessary to define  'scientifically-based'  or  'research-based'  intervention and criteria; the definition of “response-to-intervention” should be narrowed or this could drastically increase the number of children classified as learning disabled.  Staff training will be required to use the new methodologies.  One individual stated that LEAs should be required to use a severe discrepancy between achievement and intellectual ability to identify a student as learning disabled. 

DEPARTMENT RESPONSE:

          For clarity purposes, section 200.1(zz)(6), relating to the definition of “learning disabilities”, has been revised to add a cross citation to section 200.4(c)(6), concerning the procedures to identify a student as having a learning disability.  The  Department will adopt criteria for the identification of learning disabilities in a separate rulemaking process, after adoption of the final federal regulations, and issue guidance at that time.

17.  COMMENTS:

          The definition of “surrogate parent” should clarify that not all wards of the State require surrogate parents and the term must include an individual acting in the place of the parent or guardian after a parent's right to make educational decisions has been subrogated by a judge. 

DEPARTMENT RESPONSE:

           Section 200.1(ccc), relating to the definition of "surrogate parent", has been revised to clarify when a ward of the State should be considered to need a surrogate parent.

18. COMMENTS:

          The definition of  "universal design" should be included as written, as it will lead to goods and services accessible and useable by people with the widest possible range of functional capabilities.

DEPARTMENT RESPONSE:

          Because of the nature of the comment, no response is necessary.

19. COMMENTS:

          The definition of "ward of the State" should include all children in foster care (including voluntary placements, children placed pursuant to an abuse or neglect finding, persons in need of supervision and juvenile delinquents), except for those who have a foster parent who meets the definition of "parent."  The term should also include all children who are in the custody of the Commissioner of Social Services or the Office of Children and Family Services (OCFS) and all children who are destitute.  The phrase 'permanent custody of a State or local social services agency or officer' has no meaning under the law and should be deleted.  As written, the proposed definition would allow surrogate parents to be appointed for children in foster care when there is a birth or adoptive parent available.  The third criteria under the proposed definition should be deleted because it applies to no one.  One individual commented that the proposed definition is clear and appropriate as written. 

DEPARTMENT RESPONSE:

           Section 200.1(kkk), relating to the definition of “ward of the State”, has been revised consistent with the above comments.

Section 200.2 – Board of Education Responsibilities

20.  COMMENTS:

          Nonpublic school child find requirements:  Proposed section 200.2(g)(7) relating to the school district procedures to locate, identify and evaluate all nonpublic private and elementary school children should be revised to require  ‘similar’, as opposed to  'comparable'  activities in its child find procedures; to identify the specific requirements for consultation with nonpublic school representatives consistent with Education Law section 3602-c; and to clarify that the school district of residence must develop the individualized education program (IEP).  Others commented that the school district’s obligation to students parentally-placed in private schools results in excessive paperwork and recommended NYS adopt the federal standard to provide special education services to students placed in private schools by their parents based only on the proportionate share of federal dollars.  Because NYS’ dual enrollment system far exceeds federal requirements, proposed regulations should clarify the additional rights and services to such students in NYS and the responsibilities of the school district of residence.  Regulations should clarify the school district financial responsibilities when a nonpublic school is located within its boundaries; the school district with responsibility for due process; who counts the students for federal funding; which school district is responsible for results of State assessments for students attending nonpublic schools; and how NYS’ dual enrollment provisions fit into the federal requirements. 

Regulations should require parents who enroll their children in nonpublic private schools to notify the public school district of their decision to do so.  This would create a partnership between the parents and the public schools in their district and would assist districts in meeting their child find obligation.

DEPARTMENT RESPONSE:

           Section 200.2(g)(7) has been revised to require ‘similar’ as opposed to ‘comparable’ child find activities.   Additional regulations to implement Education Law section 3602-c will be proposed under a separate rulemaking process.

21. COMMENTS:

          Regulations should require the testing accommodation guidelines developed for district-wide assessments to be consistent with State policy for State assessments.

DEPARTMENT RESPONSE:

           Section 200.2(g)(13) has been revised to require the board of education (BOE) to adopt written policy that describes the guidelines for the provision of appropriate accommodations to measure the academic achievement and functional performance of the student in the administration of district-wide assessments, which is consistent with State policy.

22.COMMENTS:

          Highly Qualified Teachers:  The State should adopt multiple performance-based measures to ensure competence of special educators who teach multiple subjects, especially in consultative or bilingual settings.  The challenges of passing multiple examinations may contribute to already existing shortages of qualified special education teachers.  One individual commented that hiring and retaining highly qualified staff is essential for a district to fulfill its obligation to improve the academic performance of students with disabilities.

DEPARTMENT RESPONSE:

          The comments are beyond the scope of this rule making since there  are no proposed regulations relating to measures of competence of special educators who teach multiple subjects.  Because of the nature of the other comments, no response is necessary.

23.  COMMENTS:

          District Plans:  The proposed regulations should be revised to clarify that the district plan is a separate plan from the required policies and procedures.  Regulations should require district plans to be submitted to the State Education Department and not just be available for review by the Commissioner. 

DEPARTMENT RESPONSE:

          No changes to the proposed regulations are necessary since section 200.2(b) of the Commissioner’s Regulations requires written policy in each area identified in this section and, as a separate requirement, section 200.2(c) of the Commissioner’s Regulations requires the board of education (BOE) to develop a district plan that, consistent with Education Law, must be filed and available for public inspection and review by the Commissioner.

Section 200.3 - Committee on Special Education:

24. COMMENTS:

Required CSE Members:  Section 200.3 should be revised to eliminate the additional parent member from the Committee on Special Education (CSE) and Committee on Preschool Special Education (CPSE); the additional parent member is not needed as parents can invite persons that can support them through the IEP process; if the additional parent member were eliminated, it would do no substantive harm and would save countless hours of paperwork and time and eliminate the need to frequently reschedule meetings when the additional parent member is not available.  The additional parent member should be optional, at the request of parents, 72 hours in advance of the meeting.   Parents and schools should be able to agree to continue the meeting if the additional parent member fails to attend.  Others commented that the additional parent member is a valuable member of the CSE and should be retained.  The expansion of the definition of additional parent member in the proposed amendment was supported, as it would provide school districts with a larger pool of parent representatives from which to choose from.

Many comments supported the continuation of the current CSE membership.  Some stated that the school psychologist should continue to be a required member of the CSE; social workers should be mandated at all initial CSE meetings to support parents and ensure referrals are not restricted; trained clinicians should not be eliminated as participants in the IEP process; and the professional that conducted the evaluation should be required to attend the CSE or CPSE meeting.

Regulations should be revised to required not less than one special education teacher  and (as opposed to  or) not less than one special education provider. 

DEPARTMENT RESPONSE:

          The required members of the CSE, Subcommittee and CPSE are established in Education Law and are not subject to changes by Commissioner’s Regulations without corresponding statutory authority.   The proposed regulations were not revised to require both a special education teacher and a related service provider to participate in the CSE meetings since not all students have both a special education teacher and a related service provider and because current regulations require other persons having knowledge or special expertise regarding the student, including related service personnel as appropriate, to participate in the meeting, which would ensure the participation of related service personnel as appropriate.

25. COMMENTS:

Attendance not necessary; excusal of CSE members:   A large number of comments provided both support and opposition to the proposed amendment that would authorize the parent and school district to agree that the attendance of a CSE or CPSE member is not necessary or that a member could be excused.

 Comments in opposition:  The proposed regulations should require a meeting of the full CSE or CPSE (without excusals) whenever reduction of services will be considered and not allow the parent and school district to agree that a CSE or CPSE member’s attendance is not necessary or that a CSE or CPSE member may be excused.  Unless parents and other providers are present at meetings to challenge recommendations, the only recourse would be an impartial hearing.  Proposed regulations do not go far enough to protect parents from potential abuses by school administrators who might preclude some CSE members from attending meetings.   Even with the proposed safeguards, the proposed regulations would put the parent of the child at greater disadvantage and lead to the possibility of manipulation and coercion by school districts, especially for parents whose primary language is not English.  Some commented that many parents do not have the expertise to determine if a specific professional’s input should be excluded and that some school administrators try to coerce staff to get signatures from parents who do not want to sign for consent.  One organization stated that if NYS must initiate the IDEA requirement to allow parents and school districts to agree to excuse IEP members, such procedures should remain solely within the authority of the NYS legislature and not the Commissioner of Education. 

Comments in support:  The federal government intended for States to grant flexibility to both parents and school districts in the participation of CSE/CPSE members.  The ability for the parent and the district to reduce the number of unnecessary meetings and the number of staff who must attend every IEP meeting will enable special education staff to spend more time on direct service provision.  With the adoption of the proposed regulations, schools can direct resources to the classroom and improve student performance.  Failure to allow this flexibility will mean many cancellation of meetings and requiring parents to take additional days off from work when a required CSE member is not available on the day of the meeting.  Attendance at all CSE meetings is difficult for BOCES teachers and providers since students come from a large geographic area.  These provisions will allow teachers and related service providers to have input into meetings while still providing the required special education services to their students.

Other comments:  Regulations should require any CSE member whose attendance may not be necessary or who may be excused from a CSE or CPSE meeting to receive prior written notification about the planned CSE meeting and the decision slated for discussion to allow for their input, where appropriate.  Proposed regulations should ensure that parental consent to excusal of mandated IEP team members is knowing and voluntary.  The choice must be presented to the parent before it is too late to get the team member to the meeting.  Regulations should require that parent consent be in writing; require written notice and agreement at least five business days before the meeting and not at the day of the meeting; and require the notice to inform parents of their legal right to the IEP team member’s participation in the meeting and if the parent declines, the team member will attend the meeting.   Some recommended that the written agreement or consent for excusal should be required at least one day before the CSE meeting and that a written rationale for the exclusion of the member be required so parents will be informed.  Regulations should provide the parent the opportunity to initiate a desire to exclude an IEP team member and require both the school district and parent to consent to the agreement.  School districts should be required to designate and notify parents of the specific school administrators who have authority to excuse CSE members.  If the State is required to allow for the excusal of IEP team members, the excused party should have adequate time to prepare the written report, which should be at least five days prior to the notice statement.  Regulations should require agreement at least five days before a meeting to allow districts sufficient time to ensure the presence of a CSE member, in the event a parent does not agree or consent.

Regulations should permit a parent the option of not requiring the attendance of an outside parent member if the parent does not wish the outside parent to participate.  The outside parent member’s excusal must not be subject to the provision requiring written input. 

DEPARTMENT RESPONSE:

          NYS Education Law continues to require the entire CSE or CPSE member to attend a meeting.  Therefore, the proposed regulations have been revised to delete proposed section 200.3(e), which would have authorized the parent and the school district to agree that the attendance of a CSE or CPSE member was not necessary or that a member could be excused from attending the meeting.  This issue will be reviewed again upon adoption of final federal regulations or guidance. 

State law and regulations continue to provide parents the right to request that the additional parent member not participate in a particular CSE or CPSE meeting.

Section 200.4 – Referral, Evaluations and IEP, Placement and Review

26. COMMENTS:

          Evaluation Procedures:  Regulations should retain reference to the student’s native language to prevent confusion in the field and to ensure that steps are taken to provide a bilingual assessment.  Comment supported the proposed changes for assessments of students with limited English proficiency (LEP).

DEPARTMENT REPONSE:

          Section 200.4(b)(6) has been revised to retain current language that school districts must ensure that assessments and other evaluation materials are provided and administered in the student’s native language or mode of communication.

27. COMMENTS:

          Proposed section 200.4(b)(8), relating to screening of a student, is supported since screenings provide valuable information in the general education setting and should not be confused with evaluation for eligibility purposes.

DEPARTMENT RESPONSE:

          Because of the nature of the comment, no response is necessary.

28. COMMENTS:

Regulations should require the IEP to include the testing accommodations needed for students with LEP as required by Part 154 of the Commissioner’s Regulations. 

DEPARTMENT RESPONSE:

          Only those testing accommodations recommended by the CSE as needed by the student as a result of his or her disability should be indicated on the IEP.  Testing accommodations provided based upon the student’s LEP needs are not indicated on the student’s IEP as such recommendations are determined by the principal in consultation with the student’s classroom teacher and not by the CSE.  No revisions to the proposed rules in this area have been made.

29.  COMMENTS:

          Proposed section 200.4(b)(6)(xvii), relating to students who transfer school districts, should be revised to clarify that a new assessment is not needed whenever a student with a disability transfers to a new school district.

DEPARTMENT RESPONSE:

          No revisions were made since it is evident from the proposed rule that a new assessment is not required whenever a student transfers to another school district.

30.  COMMENTS:

          Some commented that allowing 60 calendar days to complete an initial evaluation may delay services to students while others expressed that the change to 60 calendar days would result in children getting services more quickly.  Others recommended regulations that require the school district to implement the IEP within 60 school days be retained.  Given personnel shortages in many school districts, it will be difficult for districts to meet the 60-calendar day timeline.  Regulations should limit the extension of the 60-calendar day evaluation time period to 15 additional days, but if an agreement is not reached, then the original 60-day time frame should apply.

DEPARTMENT RESPONSE:

          The proposed timeline to complete the initial evaluation establishes a maximum period of time allowed for the completion of the initial evaluation and should not result in a delay in the provision of services to students.  School districts should not have difficulty completing initial evaluations within the 60-calendar day time period as such timelines are consistent with current regulations for school age students which require completion of the initial evaluation, IEP development and BOE implementation of the IEP within 60 school days of receipt of parent consent for an initial evaluation and the proposed regulation allows an extension to the 60-calendar day timeline for extenuating circumstances.  No limit to the extension is necessary since an extension must consider the need to ensure IEP implementation within 60 school days.

31. COMMENTS:

Proposed section 200.4(c)(4) uses the  phrase “graduation with a local high school or Regents diploma” and, if the Board of Regents does not renew the low pass option, the local diploma will no longer be a regular diploma but will become a special education diploma. 

DEPARTMENT RESPONSE:

          At this time, the local diploma continues to be a diploma available to all students and therefore no changes to the proposed regulations are necessary.

32. COMMENTS:

The proposed regulation for a summary report for students who are graduating or aging-out of school should be revised to ensure uniform standards for such reports by clarifying who must assist the student, what types of recommendations are required and whether a transcript would be sufficient or whether a narrative report is required.  Regulations should define “functional” and require the development of postsecondary goals to follow a self-determination model, which should be reflected in the summary of performance.

DEPARTMENT RESPONSE:

          No revisions to the proposed regulations have been made since the proposed rule is consistent with federal law.  However, the Department will issue guidance on the summary report addressing the substance of the comments.

33. COMMENTS:

The proposed regulations should be revised to ensure that a student with a disability has the same entitlement to education services as a nondisabled student, which allows a child who reaches age 21 after July 1 to continue in school for the following school year. 

DEPARTMENT RESPONSE:

          Education law establishes the age of entitlement to education services and therefore there are no changes to the proposed regulations to address this comment.

34. COMMENTS:

          Identification of Learning Disabilities:  Support was noted for the proposed repeal of the requirement that a student must be identified as a student with a disability if there is more than a 50 percent discrepancy in the student’s expected and actual achievement, since discrepancy formulas are not supported by research, have been difficult to quantify and are implemented differently from school district to school district.  Several individuals commented that the proposed regulations would eliminate the current 50 percent discrepancy criteria without replacing it with another specific criteria, allowing each school district to come up with its own process for determining the eligibility of students with learning disabilities.  If school districts across the State develop different standards, this will present problems for parents who move to new school districts. 

Support was noted for a shift in focus from testing to intervention response as the primary indicator of a possible learning disability.  It was noted that the “response to intervention” (RTI) models are strongest when determining reading disability in young readers and research is less robust for writing, spelling, and mathematics and for older students.  A three-tiered model for determining learning disability was recommended.  Initial implementation of RTI procedures should be limited to those academic domains with sufficient empirical support to recommend specific instructional interventions linked to benchmark skills measured within the curriculum.  RTI should not be used as the sole element in determining a specific learning disability.  Because of the risk of misidentification of children with other disabilities as learning disabled, additional longitudinal research should be conducted.  Training of school personnel will be needed and NYS should set aside research funds to address implementation issues. 

          The proposed regulations should be revised to identify what a research-based process is and to allow a phase-in process for some districts that may choose a RTI identification process and to identify clear criteria and timelines for the RTI model.   Without consistent criteria that apply to all school districts, there will be questions as to whether the student has a learning disability if he or she transfers from a school district that uses an RTI approach to a school district that uses a discrepancy formula.  One individual stated that there might be an increase in impartial hearings if the parent does not agree with the RTI model used.

          Proposed amendments relating to learning disabilities should clarify whether a district must provide scientific, research-based intervention for a specific period of time prior to referral.  For students who may not have been exposed to such interventions (e.g., students first entering the public school system), 60 days may not be sufficient to determine whether the student is responding to interventions.  Research-based intervention should be defined at the local level, giving school districts flexibility to determine curricula that work best for their student populations.

DEPARTMENT RESPONSE:

          Further changes to the Commissioner’s Regulations to conform to the final federal regulations and to establish State criteria for the determination of learning disabilities will be proposed at a later date.  The proposed regulations have been revised, however, to move the cross-citation to federal regulations from proposed section 200.4(b)(6)(xiv) to section 200.4(c)(6) so that all related information on the identification of learning disabilities is consolidated for clarity purposes in one section of the proposed regulations, and to revise the proposed to section 200.4(b)(6)(i)(a) to retain current regulations that cross reference federal regulations.   

35. COMMENTS:

          The Department should develop another alternate assessment for students who are sometimes termed the “gray area” students. 

DEPARTMENT RESPONSE:

          The Department is awaiting federal regulations before proposing amendments relating to the development of additional alternate assessments. 

36.  COMMENTS:

          IEPs:  The proposed regulations do not list the required statement on the IEP that recommendations be based on “peer-reviewed research to the extent practicable.”  The application of peer-reviewed research should permeate the special education and related services on all IEPs; IEPs developed according to the proposed State regulations would be legally insufficient under federal law and regulation. 

          The regulations should recognize students with progressive degenerative disorders who need to be provided with help to maintain the child’s present level of functioning.  For these children, academics may not be the focus of their education. 

DEPARTMENT RESPONSE:

           Proposed section 200.4(d)(2)(v)  provides that the IEP must indicate the recommended special education program and services that are, to the extent practicable, based on peer-reviewed research.  For clarity purposes, the proposed regulation has been revised to state this requirement in a separate sentence. 

          The IEP of a student with a disability must indicate the student’s academic/educational achievement and learning characteristics, including the student’s expected rate of progress in acquiring skills and information, as well as needs in the areas of social development, physical development and management needs.  A student’s annual goals must be developed consistent with the student’s needs and abilities.  The proposed regulations have been revised to add that the IEP list measurable goals, including academic and functional goals, consistent with the student’s needs and abilities. 

37. COMMENTS:

          Multi-Year IEP:  Many commented that NYS should not adopt the multi-year IEP option.  A multi-year IEP is not likely to reduce paperwork and many individuals expressed concern that the parents will not be informed that a multi-year IEP is optional to them or may be pressured to accept a three-year IEP to cut administrative costs.  Moving to three-year intervals for IEP development may sacrifice important aspects of accountability and communication.   Others commented that a multi-year IEP has merit for some situations and would be worthwhile to pilot.

DEPARTMENT RESPONSE:

          There are no proposed regulations to adopt a multi-year IEP, as the federal application for proposals has not been issued.

38. COMMENTS:

          Transition Services:  Some recommended that the current requirements for transition services in section 200.4 be retained, including the two-step planning process (age 14, courses of study; age 15 post-secondary goals and transition services.)  Others recommended the proposed regulations be revised to require the full statement of transition services at age 14, instead of 15.  One organization recommended the regulations be revised to require transition planning at age 13.  Others recommended planning for transition services begin at age 16, consistent with federal law, and authorize the CSE to determine if an individual student needs transition services before age 16.   

          One individual commented that the proposed regulations repealed the requirement for transition needs to be included in present levels of performance and the requirement for post-school outcomes in employment, post-secondary education and community living.  Another stated that the proposed transition requirements do not focus on independent living skills and community involvement.  It was recommended that the proposed regulation in section 200.4(d)(2)(ix)(a) be revised to replace “a statement of the student’s needs” with “a statement of the transition services needs” consistent with language in IDEA; and should retain the requirement for the identification of the participating agencies on the student’s IEP. One individual recommended regulations clarify that the school district is not required to provide follow-up on the implementation of these goals and recommendations.

          One individual noted that the proposed regulation does not require a school district to perform evaluations necessary for the transition of student to adult systems and that, without proper documentation, students turning 18 who are still in school may experience a gap in services and/or be ineligible for adult mental health services. 

          One individual commented that students with social and emotional problems and students with developmental disabilities need to have meaningful employment connections, such as employment in horticulture and agriculture, that should begin as early as middle school in order to prepare them for meaningful transitions to adult life.  Another noted that school districts need training in effective transition plan development.

DEPARTMENT RESPONSE:

          The proposed regulations would consolidate the two ages for transition planning to one age in NYS and require transition planning to begin earlier than the IDEA requirement of age 16.  Proposed regulations require transition services to be in effect not later than the first IEP to be in effect when the student is age 15, which would require transition planning to begin at the annual review meeting before the student turns age 15.  For most students, this means transition planning would begin at the annual review when the student is age 14.  In addition, the proposed regulation retains the authority of the CSE to determine if transition services should be provided at a younger age. 

Since it is the school district’s responsibility to ensure transition services are provided to assist the student to meet the postsecondary goals, and since the performance of the State and the LEA will be reviewed based, in part, on the percentage of students who reach their postsecondary goals in the areas of education and employment, no revisions have been made to add that a school district is not responsible to follow up on the implementation of post secondary goals and recommendations.

Section 200.4(d)(2)(ix)(a) has been revised to require a statement of the student’s needs relating to transition in the present level of performance section of the IEP.  No changes to the proposed regulation were needed to address the recommendations to retain the statement of responsibilities of participating agencies, or to focus on independent living skills and community involvement since proposed regulations retain requirements relating to both recommendations.

Consistent with federal law and regulations, the proposed regulations do not require a reevaluation of a student with disability upon declassification because of graduation or aging out and therefore no changes to the proposed regulations have been made.  For a student who needs an evaluation to facilitate transition to mental health or other adult services, the CSE should identify the student’s need for such evaluation and the participating agency that could provide the evaluation before the student leaves the school setting.   

No changes to the proposed regulation are needed to address the comment that some students need particular career and technical education programs (e.g., horticulture or agricultural) available to them since the proposed transition services requirements require a statement of the transition services needs of the student that focus on courses of study such as vocational education programs.

39.  COMMENTS:

          Annual Goals and Short-Term Objectives and Benchmarks:  Many recommended that the proposed regulations retain the requirement for short-term objectives and benchmarks for all students because annual goals are often poorly written and vague; short-term objectives and benchmarks provide instructional and measurable indicators of whether a student is reaching an annual goal; provide a guide to teachers on steps to achieve the annual goal; and keep schools accountable for a student’s progress.  The proposed regulations should be revised to clarify what alternate assessment qualifies a student for short-term objectives and benchmarks.  The State should audit school districts to make sure goals are measurable.  One individual recommended the term “functional annual goal” be defined.

          Others supported the elimination of short-term objectives, as it would reduce unnecessary and cumbersome paperwork and allow teachers to more effectively assist students in meeting annual goals.  The proposed regulations would require short-term objectives, if appropriate, which is inconsistent with IDEA 2004’s elimination of short-term objectives and benchmarks, except for students who take an alternate assessment.

One individual commented that eliminating short-term objectives for preschool providers would allow teachers and therapists more time to concentrate on writing present levels of performance and developing instructional programs and lesson plans.  One individual stated that goals are not necessary and that changes in functional levels on various standardized assessments could document student improvement or lack thereof.  Another recommended elimination of short-term objectives and benchmarks for preschool students since parents of preschool children transitioning to CSE might believe the CSE IEP is less comprehensive. 

DEPARTMENT RESPONSE:

          The proposed regulations have been written to ensure that a student’s IEP includes annual goals, including academic and functional goals, and requires each annual goal to include the evaluative criteria, evaluation procedures and schedules to be used to measure progress toward the annual goal.  The proposed regulations do not require short-term objectives or benchmarks for all students, if appropriate, and therefore no revisions are necessary to address this comment.  No definition of the term  "functional"  has been added, since this term does not have a specific meaning for special education purposes.

          Consistent with Congress’ intent to provide paperwork relief to teachers and related service providers by repealing the requirement for short-term objectives and benchmarks for all students except students with the most severe cognitive disabilities who take an alternate assessment against alternate achievement standards, the proposed regulations continue to include a repeal of the requirement for short-term objectives and/or benchmarks for all students except for students who take the alternate assessment and for preschool students.  Since there is no alternate assessment for preschool students and therefore no objective process to identify preschool students with the most severe cognitive disabilities, the proposed  regulations would retain the requirement for short-term objectives and benchmarks on the IEPs of all preschool students.  To provide clarity as to those students for whom the IEP would require short-term objectives and benchmarks,  section 200.4(d)(2)(iv) has been revised to specify the alternate assessment as the New York State Alternate Assessment.  The proposed regulations would not prevent a CSE from deciding to include short-term objectives and/or benchmarks on the IEPs of other students.

40.COMMENTS:

          Proposed section 200.4(d)(2)(viii)(b) (participation in appropriate activities with age appropriate peers) and (c) (settings with no regular contact with age appropriate peers) seem to say the same thing in two different ways and should be clarified. 

DEPARTMENT RESPONSE:

          Proposed section 200.4(d)(2)(viii)(b) requires the IEP for a preschool student to explain the extent the student will not participate in appropriate activities with age-appropriate peers, while section 200.4(d)(2)(viii)(c) requires the IEP of a preschool student to identify if the special education services will be provided in a setting with no regular contact with age-appropriate peers without disabilities.  While similar, they are different requirements since a student may be placed in a setting age appropriate peers, but may not be participating with such peers in age appropriate activities and therefore no revisions to the proposed regulation have been made to address this comment.

41.  COMMENTS:

          Reports to Parents:  The proposed regulations should be revised to retain the current requirement that the periodic reports to parents identify the extent to which the progress is sufficient to attain the goal by the end of the school year.

DEPARTMENT RESPONSE:

          No revision to the proposed regulations have  been made to address this comment, since IDEA 2004 repealed the specific requirement that periodic reports identify the extent to which the student’s progress is sufficient to attain the goal by the end of the year.  However, since the progress report must include information on the progress the student is making toward the annual goals, it is expected that such reports will provide sufficient information so that the parent and other CSE members could monitor a student’s progress toward the annual goals.  

42. COMMENTS:

          Changes to the IEP without a Meeting:  Many recommended that the proposed regulations be revised to eliminate the option for IEPs to be amended after the annual review without a meeting and that IEPs should never be changed without a meeting.  Comments were received that noted a history of IEPS being changed because there is a waiting list for programs or services or because of fiscal reasons rather than because of a student’s needs. Others recommended the proposed regulations provide restrictions on the type of changes that can be made; establish a time frame in which these changes can be made; require the provider of the service affected by the change to be consulted or involved in the decision; require school districts to give parents written notification, which contains the suggested changes and the reasons for the changes, seven business days before any changes are made and, if the parents agree or if they do not respond, the school district must provide the parents with the amended document within five business days of the date of the changes; require school districts to designate and notify parents of school administrators who have authority to amend an IEP without a meeting; and clarify that the parent must agree to the changes to the IEP and to amending the IEP without rewriting it. 

          Others recommended that the proposed regulation allowing  parents and school districts to agree to changes to the IEP after the annual review without a meeting, should be adopted since this would allow teachers and service providers to spend more time working with students instead of attending meetings, would speed up the process to make changes to the IEP and is consistent with Congress’ intent to provide flexibility to parents and schools.   One individual recommended the Department develop a suggested form for parents to review before agreeing to changes without a meeting.

DEPARTMENT RESPONSE:

          Since NYS Education Law continues to require a meeting of the CSE or CPSE to make a change to a student’s IEP,  section 200.4(g) has  been revised to delete the language that would have authorized a parent and a school district to agree to change the IEP without a meeting when the IEP needs to be amended or revised after the annual review.  This issue will be reviewed upon adoption of final federal regulations.  The proposed regulation, however, retains the language that would allow the school district to amend an IEP without rewriting the IEP for revisions made after the annual review meeting that are recommended in a subsequent CSE meeting.

43. COMMENTS:

          Copy of the IEP to Parents: The proposed regulations should be revised to require a parent to continue to automatically receive a copy of an amended IEP and not to require a parent to request a copy; and to require the copy of the IEP be given to the parent before the IEP conference.  

DEPARTMENT RESPONSE:

           Section 200.4(g) has been revised to clarify that, when an IEP has been amended or modified after the annual review meeting without rewriting the IEP, the parent must receive a copy of the document that amends or modifies the IEP.   However, if the parent requests the IEP be rewritten, then the school district must rewrite the IEP with the changes incorporated and provide the parent with the copy of the revised IEP.

44.  COMMENTS:

          Reevaluations:   Many comments both in support and opposition were received on the proposed regulations to allow the parent and school district to agree that a reevaluation is not necessary. 

In support: The regulations should retain the authority of the parent and district to agree that a reevaluation is not necessary.  This will ameliorate the problem of children being subjected to frequent, unnecessary testing.  Congress intended states to give parents and schools this flexibility.

In opposition: The proposed regulations should be revised to retain the requirement for the three-year reevaluation without allowing parents and school districts to agree it is not necessary.  Reevaluations at least every three years provide objective information to assess student progress.  One individual opposed changes to the regulations that would exclude the parent from involvement with any reevaluation.

DEPARTMENT RESPONSE:

          Because NYS Education Law continues to require that a reevaluation be conducted at least once every three years,  section 200.4(b)(4) has been revised to delete language that would have authorized the parent and the school district to agree that a three-year reevaluation is not necessary.  This issue will be reviewed upon adoption of final federal regulations or other federal guidance.  There are no proposed regulations that would exclude the parent from involvement with the reevaluation of his or her child.

45. COMMENTS:

          Timeline for IEP implementation:  The proposed regulations should be revised to shorten the timeline for IEP implementation from 60 school days from the referral for the reevaluation, which could be one-third of a school year.  The timelines for services to be provided within 60 school days needs to have the same exceptions as provided for the 60-calendar day timeline for evaluations.  An extension for the initial evaluation could impact on the school district’s ability to develop the IEP and ensure BOE implementation within the remaining time period.

DEPARTMENT RESPONSE:

No revisions to the proposed regulations have been made to extend the 60 school day requirement for implementation of a student’s IEP.  Any extension to the 60-calendar day timeline to complete the initial evaluation must consider that the school district does not have authority to go beyond 60 school days for implementation of the IEP, except if the recommendation is for placement in an approved in-state or out-of-state private school.

46.  COMMENTS:

Transfer Students:  The proposed regulations should be revised to require a new school district to implement the student’s IEP, and not a “comparable” IEP.  Regulations should require the transmittal of records within five days of the student's enrollment.

DEPARTMENT RESPONSE:

          No revisions have been made to the proposed regulation relating to implementation of an IEP for a student who transfers within the same State or from outside the State, since the proposed amendment is consistent with IDEA 2004.  The proposed regulation that would require a school district to take reasonable steps to promptly obtain the student's records and to promptly respond to a request for such records are consistent with federal requirements and should ensure timely sharing of records without imposing a specific time period.

47. COMMENTS:

          Consolidation of meetings: The proposed revision that encourages the consolidation of reevaluation meetings with other CSE meetings may lead to confusion on the part of CSE members as to the purpose of the meeting or the capacity in which various parties are acting for the particular meeting.

DEPARTMENT RESPONSE:

          The meeting notice provided to parents must state the purpose of the CSE or CPSE meeting.  Therefore, the proposed regulation that encourages the consolidation of reevaluation meetings with other CSE meetings should not lead to confusion as to the purpose of the meeting or the role of the participants in such meetings.  This regulation is intended to facilitate efficient use of resources and instructional time, but is not intended to result in CSE meetings where there is insufficient time allocated to address the purpose of the meeting.  Therefore, no revision to the proposed regulation has been made to address this comment.

48. COMMENTS:

          Alternative means of meeting participation:  One individual commented that a CSE meeting held by means of a telephone conference call may result in no record being made of the meeting and that the parent should always participate in a video or a face-to-face meeting.  Another commented that this proposed revision could be seen to limit a parties’ participation based on the waiver of rights, which might be done for administrative convenience.  Others commented that use of alternative means of participation may be misused and that guidelines or parameters are needed.   DEPARTMENT RESPONSE:

          The proposed regulation on the use of alternative means of meeting participation would add to regulation the policy established in 1972 to allow use of teleconferencing to ensure all CSE members participate in IEP meetings.  While the attendance of all members and the parent is preferable and strongly encouraged, the proposed regulation would allow the CSE to conduct the meeting with one or more members participating through alternative means as long as the parent agreed.  Recent advances in technology provide for interactive means for participants to engage in discussions regarding a child’s IEP and such means should be considered as appropriate.  Guidance will be issued to address other comments.

Section 200.5 - Due Process Procedures

49. COMMENTS:

          Meeting notice: Proposed section 200.5 should quantify the number of school days for prior written notice for meetings to be given to parents so that parents have sufficient time to arrange work schedules to attend meetings.

DEPARTMENT RESPONSE:

          No revisions to the proposed regulation has been made to address this comment since current regulations establish a time period of at least five days before the meeting for the written meeting notice to be provided to the parent, unless the parent and the school district agree to a meeting that will occur within five days. 

50. COMMENTS:

          Prior Notice and Parental Consent: The proposed regulations should be revised to obligate school districts to provide services when a child is determined eligible, regardless of a parent’s lack of or refusal of consent for services to a child who needs special education services; require informed consent be in easily understood language, describe the proposed actions fully and without ambiguity, and include a statement from the parent that s/he has had the time and information necessary to make the decision; require that no member of the team or staff of the school district may attempt to coerce the parent into signing any document that the parent does not fully understand; and, in proposed section 200.5(b)(4)(ii),  clarify the circumstances when a school district is not required to convene a CSE meeting when a parent does not consent to services.

Section 200.5(b)(5), relating to consent for a ward of the State, should define  "reasonable efforts"  to locate the parent to include consultation with the local Department of Social Services or other agency responsible for the care of the child and should reference consent for reevaluations and services as well as for initial evaluations.  The phrase "or surrendered" should be inserted in section 200.5(b)(4)(i)(a)-(c).  The regulations should be revised to clarify that consent for a ward of the State must still be obtained from a surrogate parent, and that if the school district does not receive a response from the parent after making reasonable outreach efforts, it must proceed to appoint a surrogate parent.  Regulations should allow a judge to reinstate a parent’s educational decision-making rights.

          Section 200.5(b)(1)(ii) should be amended to delete the word '"‘initial"  to clarify that the consent to provision of services applies at all times and so that a parent’s failure to consent to ongoing provision of services would deobligate a district from providing FAPE.

          Section 200.5(b)(5),  relating to consent for an unaccompanied homeless youth, should be revised to clarify the responsibilities of the surrogate parent and the employee of the temporary housing facility to ensure the rights of the homeless youth are protected.

DEPARTMENT RESPONSE:

          No revisions to the proposed regulations were made to allow a school district to use due process to override a parent's lack of or refusal of consent for services since IDEA 2004 prohibits a State or local educational agency from overriding a parent’s refusal of consent by utilizing the due process procedures.  No revision to  section 200.5(b)(4)(relettered as section 200.5(b)(5) in the revised rule), relating to consent for a ward of the State, was made to require consultation with local social services agencies in a district’s efforts to locate the parent of a student who is a ward of the State; however, this change was made in proposed section 200.5(n).  No revision has been made to require parent consent for ongoing provision of services or to relieve a school district of its obligation to provide FAPE to a student whose parents do not consent for ongoing services since such a change could be inconsistent with federal requirements and since a school district or a parent can request mediation or a due process hearing concerning issues of FAPE. 

          Proposed section 200.5(b)(5), regarding consent for an unaccompanied homeless youth, has been deleted in the revised regulations and will be reconsidered upon promulgation of final federal regulations.  No revisions to the proposed regulations were made relating to written prior notice, since current regulations require that whenever a school district requests consent from the parent, the parent must be given a written notice (written prior notice) a reasonable period of time before the district will take a particular action.  Regulations require the written prior notice be in language understandable to the general public and provided in the native language of the parent or other mode of communication of the parent and that school districts take steps to ensure the parent understands the content of the notice.  The definition of consent in section 200.1(l) requires the parent to be fully informed of all information relevant to the activity.

51. COMMENTS:

          BOE Notice: The requirement for a separate BOE notice should be eliminated, and instead the regulations should require the prior notice from the CSE to state that the decision must be reviewed by the BOE.

DEPARTMENT RESPONSE:

The requirement that the BOE send a notice to the parent is in NYS Education Law.  Since this is a statutory requirement, no revisions to the proposed regulations have been made.

52. COMMENTS:

          Procedural Safeguards Notice:  Support was noted for the proposed regulation that reduces the number of times that the due process notice must be sent to parents.  The proposed regulation to repeal the requirement for a copy of the notice with each IEP meeting will only be a problem if parents are unaware of their right to request a copy if they need one. 

DEPARTMENT RESPONSE:

          No revisions to the proposed regulation has  been made in response to this comment, as none are necessary.  The proposed regulation requires the parent to be given a copy of the procedural safeguards notice at least one time per year.

53.  COMMENTS:

          Regulations should clarify timelines when parties choose mediation but fail to reach resolution within 30 days and clarify whether mediation tolls the statute of limitations for requesting impartial hearings

DEPARTMENT RESPONSE:

          The Department will await promulgation of final federal regulations to address these comments.

54.  COMMENTS:

 

          Appointment of an impartial hearing officer (IHO):  Proposed  section 200.5(j)(3)(i)(b), relating to the IHO accepting an appointment, should be revised since it implies that the impartial hearing must start within 14 days of the IHO being appointed, which is inconsistent with the requirements for a resolution session.  Regulations should allow the parent to report the failure of the resolution session so that school districts do not delay hearings indefinitely by not reporting to the IHO the failure to reach an agreement in the resolution session.

DEPARTMENT RESPONSE:

          Proposed section 200.5(j)(3)(i)(b) and (iii) has been revised to require the impartial hearing to commence within the first 14 days after the date upon which the parent and school district agree in writing to waive the resolution session or the date upon which the school district informs the IHO that a resolution session was held but not agreement reached or the expiration of the 30-day period, whichever occurs first.

55. COMMENTS:   

          Due Process Complaint Notice:  The proposed requirements to filing a due process complaint notice will be viewed as complex for many parents and may be a disincentive for them to follow through. 

DEPARTMENT RESPONSE:

          The Department has developed a sample form for parents and school districts to use when filing a due process complaint notice and will issue additional information for parents in guidance to promote their understanding of the new federal requirements.

56. COMMENTS:

          Resolution Session:  The proposed regulations should be revised to ensure that the resolution session does not operate as an automatic 30-day delay on resolution of hearing requests and to require notification to the parent within three days of their right to waive the resolution session and proceed to a hearing. 

DEPARTMENT RESPONSE:

          Since school districts are required to convene a resolution session within 15 days of receiving the due process complaint notice, the proposed regulations do not authorize a school district to automatically delay an impartial hearing for 30 days.  Revised proposed section 200.5(j)(3) would require an impartial hearing to commence not later than 14 days after the date upon which the IHO receives the parties’ written waiver of the resolution session, or the date upon which the IHO receives the parties’ written confirmation that a resolution session was held but no agreement could be reached, or the expiration of the 30-day period beginning with receipt of the due process complaint notice, whichever occurs first.  The proposed regulations would require the school district to give a copy of the procedural safeguards notice to the parent upon the parent’s first filing in that year for an impartial hearing.  The procedural safeguards notice includes the parent’s right to agree with the school district to waive the resolution session. 

57.  COMMENTS:

          Mediation and Written Settlement Agreements:  Regulations should clarify that parties retain the right to seek enforcement of these agreements through the State complaint procedures.  Parents have limited access to attorneys to bring contract enforcement actions in court.  Providing for administrative enforcement would decrease the need for litigation.

DEPARTMENT RESPONSE:

          No revisions to the proposed regulations have been made, since IDEA requires that a written settlement agreement to resolve a complaint must be executed in a legally binding agreement that is enforceable in any State court of competent jurisdiction or in a district court of the United States.  State complaint investigations are limited to alleged violations of a federal or State law or regulation relating to the education of students with disabilities. 

58.COMMENTS:

          Statute of Limitations:  The proposed regulations should be revised to clarify what is meant by “should have known” that an IDEA violation has occurred.   The proposed regulations should be revised to provide the same statute of limitations to request an impartial hearing (two years) as parents from other parts of the country.  NYS should retain the four-month statute of limitations for appeals to court from the State Review Office. 

DEPARTMENT RESPONSE:

          Consistent with  Education Law section 4404, as amended by Chapter 352 of the Laws of 2005, the proposed regulation has been revised to establish a two-year statute of limitations, with exceptions, for a request for an impartial hearing.  No change has been made to the timeline to appeal an administrative decision to court. 

59.  COMMENTS:

          Attorneys’ Fees:  School districts may use the new IDEA provisions on frivolous or unnecessary due process hearings to intimidate parents from requesting impartial hearings.   Parents will be deterred from exercising due process because of the limitations on attorneys’ fees and the possibility that parents may have to pay school attorneys’ fees.

DEPARTMENT RESPONSE:

          There are no proposed regulations relating to reimbursement of attorney’s fees.  However, the IDEA 2004 rules relating to reimbursement of attorneys’ fees should not deter a parent who exercises his or her due process rights for just cause.

60. COMMENTS:

          Appointment of Surrogate Parents:  Since not all wards of the State require surrogate parents, limiting language must be added to the regulation to specify that a surrogate parent must be appointed if a parent's right to make educational decisions has been subrogated by a judge; and to clarify that a foster parent is not prohibited from serving as a surrogate parent for a child under his or her care if the foster parent happens to be an employee of an agency involved in the education or care of the student.  For wards of the State,  the CSE should be required to send notice of the possible need for a surrogate parent to the local department of social services or other agency responsible for the care of the child.  Regulations should set a timeline within which the CSE must make a determination as to whether a surrogate parent is necessary and should state that, in the case of a child who is a ward of the State, the surrogate parent alternately may be appointed by the judge overseeing the child case and that the individual selected by the judge to serve as a surrogate need not be selected from the list maintained by the BOE.  Regulations should give priority to a foster parent who has an ongoing, long-term relationship with the student in the event that the appointment of a surrogate parent is required.

DEPARTMENT RESPONSE:

          The proposed  regulations have been revised to clarify that a ward of the State would need a surrogate parent appointed if the student does not have a parent as defined in section 200.1(ii) of the Commissioner’s Regulations 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; to add that, where the student is known to the school district to be a ward of the State, the district must consult with the local social services district or other agency responsible for the care of the child; to require a determination of a student’s need for a surrogate parent within a reasonable time following the receipt of a referral for an initial, reevaluation or services; and adding that a surrogate may alternatively be appointed by the judge overseeing the child’s case.

Section 200.6 – Continuum of Services

61. COMMENTS:

          Support was given to adding interim alternative educational settings to the continuum of services.

DEPARTMENT RESPONSE:

          Because of the nature of the comment, no response is necessary.

Section 200.16 – Educational Programs for Preschool Children with Disabilities

62.  COMMENTS:

          Transition from CPSE to CSE:  The proposed regulations should be revised to require a CSE meeting for every student transitioning from the CPSE without requiring the parent to initiate a new written referral. 

DEPARTMENT RESPONSE:

          No revision to the proposed regulations are necessary to address this comment since there is no requirement that a parent initiate a new referral for a student with a disability transitioning from the CPSE to the CSE.

63. COMMENTS:

          Proposed section 200.16(e)(3)(iii), requiring that  the location arranged by the parent at which a preschool child’s related or itinerant services are to be provided be indicated on the IEP, should be deleted.  This is not required by IDEA and  parents may not know at the time of the IEP meeting where they would like services to be provided, or the location requested by the parents may change during the course of the year, requiring additional IEP meetings and paperwork.  Regulations should indicate that the site for service delivery may change and that the inclusion of the program site on the IEP does not obligate the school district to maintain the child at the indicated site in order to deliver other mandated preschool services.

DEPARTMENT RESPONSE:

          Education Law section 4410 requires the IEP of a preschool child to identify the initial child care location arranged by the parent, or other site, at which each services will be provided when one or more related services is recommended by the CPSE.  Since this is a statutory requirement, no revisions to the proposed regulations have been made.

Part 201 – Procedural Safeguards for Students with Disabilities Subject to Discipline

64. COMMENTS:

          Manifestation determination:  Some stated that the proposed amendment in section 201.4(b) should be adopted without modification.  Many commented that the manifestation determination would require parents, rather than schools, to have the burden of presenting evidence that a student’s behavior was directly related to the child’s disability.  Some commented that the proposed regulation should be revised to require a school psychologist on the manifestation team since school psychologists have background and knowledge in developmental psychopathology, including mental health and behavioral disorders, and are trained in identifying and assessing serious emotional disturbance and social maladjustment.  It was recommended that the proposed regulations be revised to retain the requirement that the appropriateness of the student’s IEP be considered at a manifestation hearing.  Proposed regulations require only two members of a manifestation team, the parent and school district representative, and should be revised to required at least one of the student’s teacher.   Regulations should identify specific qualifications for the district representative, since “knowledgeable about the interpretation of information about child behavior” is vague.

          Regulations should be revised to require evaluations be considered in a manifestation determination and delete the requirement that the student’s file be considered.  The behavior should be considered a manifestation of the student’s disability where the conduct in question was the direct result of the school’s failure to provide an appropriate program, not the school’s failure to implement the IEP.  Regulations should require the immediate return of the student to the placement from which the student was removed when there is a manifestation finding.

DEPARTMENT RESPONSE:

          The proposed regulations place responsibility on the entire manifestation team, upon review of the student’s IEP, any teacher observations and any relevant information provided by the parent and do not place the burden on the parent to present evidence that would convince the team that the behavior is or is not a manifestation of the student’s disability.  The proposed regulations would require 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.  The proposed regulations were not revised to retain the requirement that the appropriateness of the student’s IEP be considered at the manifestation hearing since the manifestation team is not the CSE, and only the CSE can determine the appropriateness of the IEP.  While the proposed regulation clarifies that not all members of the CSE need participate in a manifestation determination, it is expected that in every situation, the manifestation team will include the parent, the district representative and one or more members of the CSE who can bring relevant information to the meeting to assist in the manifestation determination. 

          The proposed regulations are consistent with federal law, which establishes the criteria for making a manifestation determination and requires a review of the student’s file in a manifestation review.  Any evaluations conducted for the student must be included in the student’s file.  It is implicit in the proposed rule that a student’s return to his or her former placement must be immediate when there is a manifestation finding.

65. COMMENTS:

Functional behavioral assessment (FBA) and behavioral intervention plans.  Some individuals recommended the proposed regulation be revised to require all students with a documented problem behavior to have a FBA conducted on an annual basis and a behavioral intervention plan implemented; to require all staff to be adequately training in dealing with students’ behaviors; to require the parent to be part of the team decision before a student is removed; to require all IEPs to include parent counseling and training to assist the parent in understanding their child’s needs; and to delete the qualifier, “as appropriate,” from the requirement to provide a FBA and behavior intervention plan.  Regulations should be revised to delete the language that requires a FBA and behavior intervention plans only where there is a manifestation determination, since a FBA is needed to determine manifestation.  Regulations should be revised to add a timeline of 10 school days of the removal to complete the FBA and delete the phrase “before the behavior that resulted in the change of placement” as it is confusing and unclear.

DEPARTMENT RESPONSE:

          No changes to the proposed regulations are necessary since section 200.4 of the Commissioner’s Regulations requires a FBA as a component of the initial evaluation of each student whose behavior impedes his or her learning or that of others and the CSE must annually consider strategies, including positive behavioral interventions and supports to address that behavior; section 100.2(l) of the Commissioner’s Regulations requires school districts to establish guidelines and programs for in-service education programs for all district staff members to ensure effective implementation of its policy on school conduct and discipline; parents have a right to attend an informal conference and/or a superintendent’s hearing for discipline removals and the parent is a member of the manifestation team; and parent counseling and training as a related service is recommended based on an individual student’s needs.  Federal law only requires a FBA in discipline situations when there is a manifestation and repealed the timeline to complete the FBA.  Therefore, no revisions to the proposed  regulations have been made.  Other comments will be addressed in guidance.

66. COMMENTS:

          Interim Alternative Educational Setting (IAES):  The proposed amendment makes necessary modifications to implement IDEA and the inclusion of the definition of serious bodily injury would promote effective and uniform implementation.  The proposed amendment should be revised to add that the student must continue to receive those services and modifications described on the IEP.  Proposed regulations should be revised to add that an IAES is a temporary placement than cannot exceed 45 calendar days.

DEPARTMENT RESPONSE:

          Because of the nature of the first comment, no response is necessary.  No revision has been made to require the student to receive services on the student’s current IEP since the proposed regulation is consistent with federal law.  Since a student who has been suspended for more than 45 school days for a behavior that is not a manifestation of his or her disability may be placed in an IAES and because proposed regulations limit such a placement to 45 school days when a behavior is a manifestation of the student’s disability, no revision to the proposed regulation has been made.

67.  COMMENTS:   

Special circumstances. The proposed regulations should retain the 45 calendar days for removals and not change to 45 school days, which would mean that a student with a disability could be removed from his or her school program for up to nine school weeks.  This places a nearly impossible burden on working parents and seriously undermines the progress of the child with a disability.  One individual recommended the proposed regulations clearly indicate that students with disabilities must comply with the code of conduct and may not incur any injury, as opposed to a serious bodily injury, to another person.  Additional clarification regarding unique circumstances is needed. 

DEPARTMENT RESPONSE:

          The proposed regulations are consistent with federal and State law, which authorize the removal of a student for up to 45 school days for special circumstances; and authorize school personnel to suspend a student for violations of the school district’s conduct and discipline policy.  The change in the number of days should not place an additional burden on parents, since students removed for this length of time should be placed in an IAES and not at home.  Further clarification will be provided in guidance.

68.  COMMENTS:    

          Pendency.  The proposed regulations should require a child to return to his or her school program during an appeal of a discipline decision.  The change in pendency for discipline appeals means that children with special needs will no longer be protected from removal from their classrooms while their parents are appealing removal decisions of school districts.

DEPARTMENT RESPONSE:

          No revision has been made since the proposed regulations are consistent with federal and State law.

69. COMMENTS: 

          Services.  The proposed regulations should be revised to track federal IDEA language for the services the student must receive in an IAES or other setting; to identify who determines services when the student is removed for more than 10 days when the removal is not a disciplinary change of placement; to ensure the regulations do not link services only to an IAES; to require FBAs and behavioral intervention plans consistent with IDEA; and to add “under the jurisdiction of the State or local educational agency” to section 201.7(e)(ii) and (iii).

DEPARTMENT RESPONSE:

          The proposed regulations have been revised consistent with the above comments, except that clarification as to who determines services when a student is removed or suspended for more than 10 days in a school year when the removal is not a disciplinary change in placement will be provided upon adoption of final federal regulations.

70. COMMENTS:

          The proposed section 201.5(c), relating to protections for children not yet eligible for special education, should be retained as written.  Others recommended retaining current language that stated that a student could be presumed to have a disability where the behavior or performance of the student demonstrates the need for special education services.

DEPARTMENT RESPONSE:

          Because of the nature of the first comment, no response is necessary.  The proposed rule is consistent with federal law that repealed the previous standard that a student must be presumed to have a disability if the student’s behavior or performance demonstrated the need for special education services.

71. COMMENTS:

          Authority of a Hearing Officer:  Proposed section 201.8(a) is inconsistent with federal law, which does not require the IHO to consider the child’s current placement or the district’s efforts to minimize risk of harm. 

DEPARTMENT RESPONSE:

          Since the requirements in proposed section 201.8(a) have not yet been repealed from federal regulations and are not inconsistent with federal law, they have been retained.  There may be a need to further review this comment when final federal regulations are promulgated.

AMENDMENT TO THE REGULATIONS OF THE COMMISSIONER OF EDUCATION

                              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), (v) and (vi) of paragraph (7) of subdivision (x) of section 100.2 are amended, effective September 13, 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.

                              (v)      Local education agency liaison.  Each school district shall:

                              (a)      . . . .

                              (b)      in the case of an unaccompanied youth, ensure that the local educational agency liaison assists in placement or enrollment decisions under this paragraph, including coordination with the committee on special education for students with disabilities pursuant to section 200.4 of this Title, considers the views of such unaccompanied youth, and provides notice to such youth of the right to appeal pursuant to 42 U.S.C. section 11432(g)(3)(E)(ii) (Public Law 107-110, title X, section 1032, 115 STAT. 1998: Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402-9328; 2002; available at the Office of Counsel, State Education Building, Room 148, Albany, NY 12234); and

                              (c)      . . . .

                              (vi)      Coordination.  Each school district shall coordinate:

                              (a)      the provision of services provided pursuant to subtitle B of title VII of the Mc-Kinney-Vento Homeless Education Assistance Act, as amended, (42 U.S.C. sections 11431 et. seq.) with local social services agencies and other agencies or programs providing services to homeless children and youths and their families, including services and programs funded under the Runaway and Homeless Youth Act (42 U.S.C. sections 5701 et. seq.); [and]

                              (b)      [coordinate] with other school districts on interdistrict issues, such as transportation or transfer of school records; and

                              (c)      implementation of this subdivision with the requirements of the Individuals with Disabilities Education Act (20 U.S.C. 1400 et. seq.).

                              2.       Subparagraph (iii) of paragraph (1) of subdivision (dd) of section 100.2 of the Regulations of the Commissioner of Education is amended, effective September 13, 2005, as follows:

                              (iii)      A school district or BOCES [may] shall include [the local special education comprehensive system of personnel development (CSPD) plan, developed pursuant to 34 CFR 300.221,] as part of its professional development plan 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[, provided that such professional development plan meets all requirements set forth in this subdivision and provided that such local CSPD plan meets all other requirements of Federal or State statute, regulation or policy].

                              3.       Part 101 of the Regulations of the Commissioner of Education is repealed, effective September 13, 2005.

                              4.       Subdivisions (e), (s), (t),(x), (dd), (ii), (oo), (qq), (ss), (ww), (zz), (ccc) and (fff) of section 200.1 of the Regulations of the Commissioner of Education are amended, and new subdivisions (hhh), (iii) (jjj) and (kkk) of section 200.1 of the Regulations of the Commissioner of Education are added, effective September 13, 2005, as follows:

                              (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) and (h) and of section 200.2 of the Regulations of the Commissioner of Education are amended and a new subdivision (j) is added, effective September 13, 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).  (a) 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)      . . . .

                              (2)      . . . .

                              (3)      . . . .

                              (4)      . . . .

                              (5)      . . . .

                              (b)      Responsibility to identify and take measurable steps to recruit, hire, train and retain highly qualified personnel.  Each BOCES shall identify and take steps 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 September 13, 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 September 13, 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 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)] (a) [consider] the strengths of the student[,];

                              (b)      the concerns of the parents for enhancing the education of their child[,];

                              (c)      the results of the initial or most recent evaluation of the student[,];

                              (d)      as appropriate, the results of the student's performance on any general State or district-wide assessment programs[,];

                              (e)      the academic, developmental and functional needs of the student;

                              (f)       the special factors described in paragraph (d)(3) of this section[,]; and

                              (g)      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)      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)      the results of any reevaluation conducted pursuant to this Part and any information about the student provided to, or by, the parents;

                              (c)      the student’s anticipated needs;

                              (d)      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:

                              (a)      the parent shall receive prior written notice of any changes to the IEP pursuant to section 200.5(a) of this Part; and

                              (b)      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 September 13, 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) . . . .

                              [(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,:

                              (a)      despite reasonable efforts to do so, the school district cannot discover the whereabouts of the parent of the student; or

                              (b)      the rights of the parents of the student have been terminated in accordance with State law; or

                              (c)      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:

                              (a)      the name of the student;

                              (b)      the address of the residence of the student (or available contact information in the case of a homeless student);

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

                              (d)      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

                              (e)      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.  (i) 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.  (a) 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.

                              (b)      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.  (a) A party may amend its due process complaint notice only if:

                              (i)       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

                              (ii)      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.

                              (b)      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.  (a) In general.  Subject to subparagraph (b), 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.

                              (b)      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 September 13, 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 September 13, 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 September 13, 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 September 13, 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:

                              [(i)      identify an appropriate program and/or service selected from the lists of preschool programs and services established pursuant to section 4410 of the Education Law;

                              (ii)      indicate the recommended program option from those options set forth in this section;

                              (iii)      if the recommendation is for one or more related services selected from the list maintained by the municipality, or itinerant services, indicate the child care location arranged by the parent or other site, at which each service shall be provided;

                              (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

                              [(v)     define the extent to which the preschool student’s parents will receive parent counseling and training as defined in section 200.1(kk) of this Part, when appropriate; 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.     Subdivision (k) 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 September 13, 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.

                              (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 September 13, 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.

                              15.     Section 201.4 of the Regulations of the Commissioner is amended, effective September 13, 2005, as follows:

                              201.4 [CSE responsibilities for manifestation] Manifestation determinations.

                              (a)      General requirement for manifestation review.  [The committee on special education shall conduct a] A review of the relationship between the student's disability and the behavior subject to disciplinary action to determine if the conduct is a manifestation of the disability must be made immediately, if possible, but in no case later than 10 school days after:

                              (1)      . . . .

                              (2)      . . . .

                              (3)      . . . .

                              (b)      Individuals to carry out review.  A review described in subdivision (a) of this section shall be conducted by [the CSE and other qualified personnel] a manifestation team in a meeting, which shall include a representative of the school district knowledgeable about the student and the interpretation of information about child behavior, the parent and relevant members of the CSE as determined by the parent and the school district.  The parent must receive written notification prior to any manifestation team meeting to ensure that the parent has an opportunity to attend.  The notification shall inform the parent of the purpose of the meeting, the names of the individuals expected to attend and inform the parent of his or her right to have relevant members of the CSE participate at the parent’s request.

                              (c)      Conduct of review.  The [CSE, with other qualified personnel,] manifestation team shall review [may determine that the behavior of the student was not a manifestation of the student’s disability only if they:

                              (1)      first consider] all relevant information in the student's file [pertaining to the behavior subject to disciplinary action,] including[:

                              (i)       evaluation and diagnostic results, including the results or other relevant information supplied by the parents of the student;

                              (ii)      observations of the student; and

                              (iii)      the student’s IEP and placement;] the student's IEP, any teacher observations, and any relevant information provided by the parents to determine if:

                              [(2)     then determine that:

                              (i)       in relationship to the behavior subject to disciplinary action, the student's IEP and placement were appropriate and the special education services, supplementary aids and services and behavioral intervention strategies were provided consistent with the student's IEP and placement; 

                              (ii)      the student's disability did not impair the ability of the student to understand the impact and consequences of the behavior subject to disciplinary action; and

                              (iii)      the student's disability did not impair the ability of the student to control the behavior subject to disciplinary action.]

                              (1)      the conduct in question was caused by or had a direct and substantial relationship to the student’s disability; or

                              (2)      the conduct in question was the direct result of the school district's failure to implement the IEP.

                              (d)      [Decision] Determination.  (1) If the [CSE and other qualified personnel] manifestation team [determine] determines that either paragraph (1) or (2) of subdivision (c) of this section is applicable for the student, [any of the standards in subdivision (c) of this section are not met,] the behavior shall be considered a manifestation of the student’s disability.

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

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

                              (ii)      except as provided in subdivision (e) of section 201.7 of this Part, return the student to the placement from which the student was removed, unless the parent and the school district agree to a change of placement as part of the modification of the behavioral intervention plan.

                              [(e) . . . .]

                              [(f)]  (e) . . . .

                              16.  Section 201.5 of the Regulations of the Commissioner of Education is amended, effective September 13, 2005, as follows:

                              201.5 Students presumed to have a disability for discipline purposes.

                              (a)      . . . .

                              (b)      Basis of knowledge.  Except as otherwise provided in subdivision (c) of this section, a school district shall be deemed to have knowledge that such student had a disability if prior to the time the behavior occurred:

                              (1)      the parent of such student has expressed concern [to school district personnel] in writing to supervisory or administrative personnel of the appropriate educational agency or to a teacher of the student that the student is in need of special education, provided that such expression of concern may be oral if the parent does not know how to write or has a disability that prevents a written statement;

                              (2)      [the behavior or performance of the student demonstrates the need for special education in accordance with section 200.1(mm), (ww) and (zz) of this Title; (3)] the parent of the student has requested [that] an [individual] evaluation of the student [be conducted] pursuant to section [200.4(b)] 200.4 or 200.16 of this Title; or

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

                              (c)      [Notwithstanding the provisions of subdivision (b) of this section, a] Exception.  A student [shall not be considered] is not a student presumed to have a disability for discipline purposes if, as a result of receiving the information specified in subdivision (b) of this section, [the school district either]:

                              (1)      the parent of the student has not allowed an evaluation of the student pursuant to section 200.4 of this Part; or

                              (2)      the parent of the student has refused services under this Part; or

                              (3)      it was determined [conducted an individual evaluation and determined] that the student is not a student with a disability pursuant to sections 200.4 or 200.16 of this Title[; or

                              (2)      determined that an evaluation was not necessary and provided notice to the parents of such determination in accordance with section 200.5(a) of this Title].

                              (d)      . . . .

                              (e)      . . . .

                              17.  Subdivisions (d) and (e) are amended and a new subdivision (f) is added to section 201.7 of the Regulations of the Commissioner of Education, effective September 13, 2005, as follows:

                              (d)      Exception for pattern of suspensions or removals.  A student with a disability may not be removed pursuant to subdivision (b) or (c) of this section if imposition of the 5 school day or 10 school day suspensions or removal would result in a disciplinary change of placement based on a pattern of suspensions or removals as determined by school personnel in accordance with the criteria set forth in section 201.2(e)(2) of this Part, except where the [CSE] manifestation team pursuant to section 201.4 of this Part has determined [in accordance with section 201.4 of this Part] that the behavior was not a manifestation of such student’s disability, or the student is placed in an IAES as authorized under subdivision (e) of this section.

                              (e)      Change in placement to an IAES for behavior involving serious bodily injury, weapons, illegal drugs or controlled substances.  (1) A superintendent of schools, either directly or upon recommendation of a hearing officer designated to conduct a superintendent’s hearing pursuant to Education Law section 3214 (3)(c), may order the change in placement of a student with a disability to an appropriate IAES, to be determined by the CSE, for up to 45 school days, but not to exceed the period of suspension ordered by the superintendent in accordance with Education Law section 3214(3), where the student:

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

                              (ii) carries or possesses a weapon to or at school, on school premises, or to or at a school function under the jurisdiction of the educational agency; or

                              (iii) knowingly possesses or uses illegal drugs or sells or solicits the sale of a controlled substance while at school, on school premises or at a school function under the jurisdiction of the educational agency.

                              (2)      The period of suspension or removal ordered by the superintendent may not exceed the amount of time that a nondisabled student would be suspended for the same behavior.

                              (f)       School personnel may consider any unique circumstances on a case-by-case basis when determining whether to order a change in placement under this Part for a student with a disability who violates a code of student conduct.

                              18.     Section 201.8 of the Regulations of the Commissioner of Education is amended, effective September 13, 2005, as follows:

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

                              (a)      An impartial hearing officer appointed pursuant to Education Law section 4404(1), in an expedited due process hearing conducted pursuant to section 201.11 of this Part, may order a change in placement of a student with a disability to an appropriate interim alternative educational setting (IAES) for not more than 45 school days, if the hearing officer:

                              (1)      . . . .

                              (2)      . . . .

                              (3)      . . . .

                              (4)      . . . .

                              (b)      . . . .

                              (c)      An IAES ordered pursuant to this section shall be determined by the [impartial hearing officer based on consideration of a setting proposed to the impartial hearing officer by school personnel who have consulted with the student's special education teacher] CSE.

                              (d)      . . . .

                              (e)      . . . .

                              (f)       A [CSE] determination that the student's behavior is a manifestation of the student's disability shall not preclude an impartial hearing officer from ordering a change in placement to an IAES pursuant to this section.

                              19.     Subdivisions (b) and (c) of section 201.9 of the Regulations of the Commissioner of Education are amended, effective September 13, 2005, as follows:

                              (b)      Procedures for removals other than suspensions.  A removal of a student with a disability, as defined in section 201.2(l) of this Part, to which the provisions of paragraphs (a) through (d) of subdivision 3 of section 3214 of the Education Law do not apply, other than a change in placement to an IAES, shall be conducted in accordance with the due process procedures applicable to such removals of nondisabled students, except that school personnel may not impose such removal for more than 10 consecutive days or for a period that would result in a disciplinary change in placement, unless [the CSE has determined] there has been a determination that the behavior is not a manifestation of the student's disability.  The removal of a student with a disability to an IAES shall be conducted in accordance with the applicable provisions of section 201.7(e) of this Part and paragraph (c)(3) of this section, or of section 201.8 of this Part.

                              (c)      Procedures for suspensions of more than five school days (superintendent's hearings).  Superintendent's hearings on disciplinary charges against students with disabilities and students presumed to have a disability for discipline purposes shall be bifurcated into a guilt phase and a penalty phase and conducted in accordance with the following procedures:

                              (1)      The superintendent of schools or hearing officer in the superintendent's hearing shall proceed with the guilt phase and determine whether the student is guilty of the alleged misconduct.  If it is determined that the student is guilty of the alleged misconduct, the superintendent of schools or hearing officer in the superintendent's hearing shall make a threshold determination of whether a suspension or removal in excess of 10 consecutive school days or that would otherwise constitute a disciplinary change in placement should be considered.  If the threshold determination is that such a suspension or removal should be considered, before the superintendent of schools orders or the hearing officer in the superintendent's hearing recommends any such removal, the superintendent's hearing shall be adjourned until a manifestation determination is made by the [committee on special education] manifestation team, except as otherwise provided in paragraph (3) of this subdivision.  If the superintendent of schools or hearing officer in the superintendent's hearing determines that a suspension or removal that would constitute a disciplinary change in placement should not be considered, the hearing shall proceed to the penalty phase.

                              (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 September 13, 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 September 13, 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) . . . .