|
|
THE STATE
EDUCATION DEPARTMENT / THE UNIVERSITY
OF THE STATE OF |
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TO: |
The Honorable the Members of the Board
of Regents
EMSC-VESID Committee |
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FROM: |
Rebecca H. Cort |
|
SUBJECT: |
Proposed Amendment to the Regulations of the
Commissioner of Education Relating to the 2004 Reauthorization of the
Individuals with Disabilities Education Act |
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DATE: |
February 27, 2007 |
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STRATEGIC GOAL: |
Goals 1 and 2 |
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AUTHORIZATION(S): |
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Summary
Issue for
Discussion
Proposed amendment of sections 100.2, 120.6, 200.1 through 200.9, 200.13,
200.14, 200.16, and 201.2 through 201.11 of the Regulations of the Commissioner
of Education.
Reason for Consideration
To conform State regulations to the Individuals with Disabilities
Education Act (IDEA 2004), as amended by Public Law 108-446, and Part 300 of the
Code of Federal Regulations.
Proposed
Handling
The proposed amendment is before the Committee for discussion in March
and will be submitted for action at the June meeting.
Procedural
History
The federal regulations to implement IDEA 2004 were issued in August 2006 and became effective October 13, 2006. The State must amend its laws and regulations to conform to federal regulations by June 30, 2007 as a condition of receipt of federal funds.
Background Information
The substantive proposed amendments to conform to IDEA federal regulations relate to the following:
· Individual evaluations, including independent educational evaluations
· Identification of students with learning disabilities
· Parent consent for evaluations, services, use of public insurance and release of confidential student record information
· Procedural safeguards notice
· Timelines and procedures for State complaints, mediation and due process hearings
· Discipline procedures
We have also proposed amendments that, while not required by IDEA, are expected to improve results for students with disabilities. These recommendations were first discussed with the EMSC-VESID Committee in 2004 after which several public discussion groups were held throughout the State. Information on the Department’s recommendations was provided to the Board of Regents in September 2006. These proposed amendments would:
· clarify the Board of Education’s responsibility to ensure that preschool students with disabilities are provided timely evaluations and placements;
· require schools to use State-mandated forms for individualized education programs (IEPs), prior written notice and meeting notice;
· expand the continuum of special education services with a new option for an integrated, co-teaching class model;
· allow a combination of resource room and consultant teacher services to meet the minimum level of service requirement for either service; and
· authorize preschool programs in New York City that are at maximum enrollment to temporarily enroll an additional preschool child, with the assignment of additional staff, when there is no other appropriate program available to serve the child.
A notice of Proposed Rulemaking will be published in
the State Register no later than March 28, 2007. Public hearings are scheduled to be
conducted on April 16, 19, and 23, 2007 in
Recommendations
The Board of Regents should discuss the proposed amendment in March and
take action in June in order to ensure consistency of the Regulations of the
Commissioner of Education with IDEA and Part 300
Regulations.
Timetable for Implementation
The proposed amendment is before the Committee for discussion in March
and, following the receipt of public comment, will be submitted for action at
the June meeting.
AMENDMENT OF THE REGULATIONS OF THE COMMISSIONER OF
EDUCATION
Pursuant to Education Law sections 207, 3208, 3209, 3214, 3602-c, 3713,
4002, 4308, 4355, 4401, 4402, 4403, 4404, 4404-a and 4410
1. Subdivision
(ii) is added to section 100.2 of the Regulations of the Commissioner of
Education, effective July 19, 2007, as follows:
(ii)
Response to intervention programs.
A school district may establish a process to determine if a student
responds to scientific, research-based intervention in accordance with the
following minimum requirements:
(1)
research-based instruction provided to all students in the class by
qualified personnel,
(2)
instruction matched to student need with increasingly intensive levels of
targeted intervention and instruction for students who do not make satisfactory
progress in their levels of performance and/or in their rate of
learning,
(3)
frequent screenings and repeated assessments of student achievement,
(4)
the application of information about the student’s response to
instruction to make educational decisions about changes in goals, instruction
and/or services and the decision to make a referral for special education
programs and/or services, and
(5)
written notification to the parents when the student requires an
intervention beyond that provided to all students in the general education
classroom that provides information about:
(i) the amount and nature of student performance data that will be collected and the general education services that will be provided pursuant to this paragraph;
(ii) strategies for increasing the student’s rate of learning; and
(iii)
the parents’ right to request an evaluation for special education
programs and/or services;
2.
Subdivision (a) of section 120.6 of the Regulations of the Commissioner
of Education is amended, effective July 19, 2007, as
follows:
(a)
For the purpose of compliance with the NCLB, a local educational agency
shall ensure that its teachers of core academic subjects are highly qualified in
accordance with the requirements and definitions prescribed in 34 CFR
200.55, [and] 200.56 (Code of Federal Regulations, revised as of July 1,
2003, title 34, volume 1, Superintendent of Documents, U.S. Government Printing
Office, Washington, DC 20402-0001, 2003; available at the NYS Education
Department, Office of Higher Education, 2M West Wing, Education Building, 89
Washington Avenue, Albany, NY 12234.) For the purpose of compliance with the
Individuals with Disabilities Education Act (IDEA) and the NCLB, a local
educational agency shall ensure that special education teachers who teach core
academic subjects are highly qualified in accordance with 34 CFR 300.18 (Code of
Federal Regulations, 2006 edition, title 34, section 300.18, Federal Register/
Vol. 71, No. 156/ August 14, 2006/ pp. 46758-46759 – Office of the Federal
Register, National Archives and Records Administration, 800 North Capitol
Street, NW, Suite 700, Washington, DC 20001; available at the Office of
Vocational and Educational Services for Individuals with Disabilities, Room
1624, One Commerce Plaza, Albany, NY 12234). A local educational agency shall provide
a teacher of core academic subjects who is not new to the profession the
opportunity to meet the NCLB and IDEA [requirement] requirements
to be highly qualified, in part, through passing the high objective uniform
State standard of evaluation (HOUSSE).
The HOUSSE shall be an evaluation, prescribed by the department and
conducted locally either during a pre-employment review or at the time of an
annual professional performance review prescribed in section 100.2(o) of this
Title, that enables a teacher who is beyond the first year of the effective date
of the teacher’s first teaching certificate, or in accordance with the
provisions of 34 CFR 300.18, to demonstrate subject matter competency in all
core academic subjects that the teacher teaches. The evaluation shall be based upon
objective, coherent information as prescribed by the department, and shall
include, but not be limited to, information on the teacher’s education,
credentials, professional experience, and professional
development.
3.
Subdivisions (m),(p),(s), (ii),(nn), (qq), (zz), (bbb), (eee), (fff), of section 200.1 of
the Regulations of the Commissioner of Education are amended, and a new
subdivision (nnn) of section 200.1 of the Regulations of the Commissioner of
Education is added, effective July 19, 2007, as follows:
(m)
Consultant teacher services means direct and/or indirect services, as
defined in this subdivision, provided to a student with a disability [who
attends] in the student’s regular education classes and/or to such
student's regular education teachers.
(1)
. . .
(2)
. . .
(p)
Full-day preschool program means an approved special education program
for preschool students with disabilities that provides instruction for a
full-day session as defined in subdivision (q) of this section, provided however
that in the event a program is approved by the commissioner to provide
instruction for less than a full-day session but more than a half-day session,
such program shall be deemed a full-day program solely for purposes of
development of a recommendation by the preschool committee on special education
pursuant to subparagraph (i) of paragraph b of subdivision 5 of section 4410 of
the Education Law and section [200.16 (d)(3)] 200.16(e)(3) of this
Part.
(s)
Guardian ad litem means a person familiar with the provisions of this
Part who is appointed from the list of surrogate parents or who is a pro bono
attorney appointed to represent the interests of a student in an impartial
hearing pursuant to section [200.5(j)(3)(vii)] 200.5(j)(3)(ix) of this Part and, where appropriate,
to join in an appeal to the State Review Officer initiated by the parent or
board of education pursuant to section 200.5(k) of this Part. A guardian ad litem shall have the right
to fully participate in the impartial hearing to the extent indicated in section
[200.5(j)(3)(ix)] 200.5(j)(3)(xii) of this Part.
(ii)
(1) Parent means a birth
or adoptive parent, a legally
appointed guardian generally authorized to act as the child’s parent or
authorized to make educational decisions for the child, a person in parental
relationship to the child as defined in Education Law, section 3212, an
individual designated as a person in parental relation pursuant to title 15-A of
the General Obligations Law including an individual so designated who is acting
in the place of a birth or adoptive parent (including a grandparent, stepparent,
or other relative with whom the child resides), or a surrogate parent who has
been appointed in accordance with section 200.5(n) of this Part. The term does not include the State if
the student is a ward of the State.
(2) .
. .
(3) .
. .
(4) .
. .
(nn) Preschool
program means a special education program approved pursuant to section 4410 of
the Education Law to provide special education programs and services, from the
continuum of services set forth in section [200.16(h)] 200.16(i) of this
Part, and to conduct evaluations of preschool students with disabilities if such
program has a multidisciplinary evaluation component.
(qq) Related
services means developmental, corrective, and other supportive services as are
required to assist a student with a disability and includes speech-language pathology, audiology
services, interpreting services, psychological services, physical therapy,
occupational therapy, counseling services, including rehabilitation counseling
services, orientation and mobility services, medical services as defined in this
section, parent counseling and training, school health services, school social
work, assistive technology services,
appropriate access to recreation,
including therapeutic recreation, other appropriate developmental or
corrective support services, and other appropriate support services and includes
the early identification and assessment of disabling conditions in students.
[The term does not include a
medical device that is surgically implanted, or the replacement of such
device.]
(1) Services that apply to children with surgically implanted devices, including cochlear implants. Related services do not include a medical device that is surgically implanted, the optimization of that device’s functioning (such as mapping), maintenance of that device, or the replacement of that device, provided that nothing in this paragraph:
(i) limits the right of a student with a surgically implanted device to receive related services that are determined by the CSE or CPSE to be necessary for the student to receive a free appropriate public education; or
(ii) limits the responsibility of a school district to appropriately monitor and maintain medical devices that are needed to maintain the health and safety of the student, including breathing, nutrition, or operation of other bodily functions, while the student is transported to and from school or is at school; or
(iii) prevents the routine checking of an external component of a surgically implanted device to make sure it is functioning properly.
(zz)
Student with a disability means a
student with a disability as defined in section 4401(1) of Education Law,
who has not attained the age of 21 prior to September 1st and who is entitled to
attend public schools pursuant to section 3202 of the Education Law and who,
because of mental, physical or emotional reasons, has been identified as having
a disability and who requires special services and programs approved by the
department. The terms used in this
definition are defined as follows:
(1)
. . .
(2)
. . .
(3)
. . .
(4)
. . .
(5)
. . .
(6)
Learning disability means a disorder in one or more of the basic
psychological processes involved in understanding or in using language, spoken
or written, which manifests itself in an imperfect ability to listen, think,
speak, read, write, spell, or to do mathematical calculations, as determined in
accordance with section [200.4(c)(6)] 200.4(j) of this Part. The term includes such conditions as
perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia and
developmental aphasia. The term
does not include learning problems that are primarily the result of visual,
hearing or motor disabilities, of mental retardation, of emotional disturbance,
or of environmental, cultural or economic disadvantage.
(7)
. . .
(8) .
. .
(9)
. . .
(10) . .
.
(11) . .
.
(12) . .
.
(13) . .
.
(bbb) Supplementary aids and
services means aids, services, and other supports that are provided in regular
education classes, [or] other education-related settings and in
extracurricular and nonacademic settings to enable students with
disabilities to be educated with nondisabled students to the maximum extent
appropriate in accordance with the least restrictive environment.
(eee) Twelve-month special
service and/or program means a special education service and/or program provided
on a year-round basis, for students determined to be eligible in accordance with
sections [200.6(j)(1)] 200.6(k)(1) and [200.16(h)(3)(v)]
200.16(i)(3)(v) of this Part whose disabilities require a structured
learning environment of up to 12 months duration to prevent substantial
regression. A special service
and/or program shall operate for at least 30 school days during the months of July and
August, inclusive of legal holidays, except that a program consisting solely of
related service(s) shall be provided with the frequency and duration specified
in the student's individualized education program.
(fff)
Transition Services means a coordinated set of activities for a student
with a disability, designed within a results-oriented process, that is focused
on improving the academic and functional achievement of the student with a
disability to facilitate the student’s movement from school to post-school
activities, including, but not limited to, post-secondary education, vocational
education, integrated competitive employment (including supported employment),
continuing and adult education, adult services, independent living, or community
participation. The coordinated set
of activities must be based on the individual student's needs, taking into
account the student's strengths, preferences and interests, and shall include
needed activities in the following areas:
(1) .
. .
(2) .
. .
(3) .
. .
(4) .
. .
(5)
when appropriate, acquisition of daily living skills and provision of
a functional vocational evaluation.
(nnn) Interpreting
services means oral transliteration services, cued language transliteration
services, sign language transliteration and interpreting services and
transcription services, such as communication access real-time translation,
C-Print and TypeWell for students who are deaf or hard of hearing; and special
interpreting services for students who are deaf-blind.
4.
Section 200.2 of the Regulations of the Commissioner of Education is
amended, effective
July 19, 2007, as follows:
(a)
Census and register of students with disabilities.
(1) .
. .
(2) .
. .
(3) .
. .
(4) .
. .
(5) .
. .
(6) .
. .
(7)
Procedures to locate, identify, and evaluate all nonpublic private
elementary and secondary school students with disabilities, including
religious-school children as required by the Education Law must be established
to ensure the equitable participation of parentally placed private school
students with disabilities and an accurate count of such students. The child find activities must be similar
to activities undertaken for students with disabilities in public schools and
must be completed in a time period comparable to that for other students
attending public schools in the school district. The school district shall consult with
representatives of private schools and representatives of parents of parentally
placed private school students with disabilities on the child find
process.
(i)
If a student is parentally-placed, or is going to be parentally-placed in
a private elementary or secondary school that is not located in the student’s
school district of residence, parental consent, or consent of a student 18 years
of age or older, must be obtained before any personally identifiable information
about the student is released between officials in the district where the
private school is located and officials in the parent’s district of
residence.
(ii)
The school district shall maintain in its records and report to the
commissioner, in a manner prescribed by the commissioner, on the number of
students enrolled in such private schools by their parents who are evaluated to
determine if they are students with disabilities, the number of such students
who are determined to have a disability and the number of such students who
received special education services under this Part.
(b)
Written policy. Each board
of education or board of trustees shall adopt written policy that establishes
administrative practices and procedures:
(1)
[establishes administrative practices and procedures] to ensure that
students with disabilities residing in the district have the opportunity to
participate in school district programs, to the maximum extent appropriate to
the needs of the student including nonacademic and extracurricular
programs and activities, which are available to all other students enrolled in
the public schools of the district, which may include counseling services,
athletics, transportation, health services, recreational activities, special
interest groups or clubs sponsored by the school district, referrals to agencies
that provide assistance to individuals with disabilities and employment of
students, including both employment by the school district and assistance in
making outside employment available;
(2)
[establishes administrative practices and procedures] to ensure that each
preschool student with a disability residing in the district has the opportunity
to participate in preschool programs, including timely evaluation and
placement.
(3)
[establishes administrative practices and procedures] for appointing and
training appropriately qualified personnel, including the members and
chairpersons of the committee on special education and the committee on
preschool special education, to carry out the functions identified in this Part;
(4)
[establishes policies and
administrative practices and procedures] to implement the provisions of
section 200.6(a) of this Part and to provide special services or programs, to
the extent appropriate to the needs of the student, to enable the student to be
involved in and progress in the general education curriculum;
(5)
[establishes administrative practices and procedures] for the purpose of
ensuring that parents have received and understand the request for consent for
evaluation of a preschool student;
(6)
[establishes administrative practices and procedures] for the purpose of
ensuring the confidentiality of personally identifiable data, information or
records pertaining to a student with a disability. Such personally identifiable
information shall not be disclosed by any officer or employee of the State
Education Department or any school district, or member of a committee on special
education or committee on preschool special education to any person other than
the parent of such student, except in accordance with [sections] section
300.500 and [300.560 through
300.577] sections 300.610 through 300.625 and Part 99 of title 34 of the
Code of Federal Regulations (Code of Federal Regulations, 2006 edition, title
34, section 300.500, Federal Register/ Vol.71, No.156/ August 14, 2006/ p.46791;
title 34, sections 300.610-300.625, Federal Register/ Vol.71, No.156/ August 14,
2006/ pp.46802-46804 - Office of the Federal Register, National Archives and
Records Administration, 800 North Capitol Street, NW Suite 700, Washington DC
20001; Code of Federal Regulations, [1999] 2005 edition, title 34,
Part 99, Superintendent of Documents, U.S. Government Printing Office,
Washington, DC 20402-0001[: 1999] - available at the Office of Vocational
and Educational Services for Individuals with Disabilities, Room 1624, One
Commerce Plaza, Albany, NY 12234);
(7)
[establishes a plan and policies] for implementing schoolwide
approaches, which may include a response to intervention process pursuant to
section 100.2(ii) of this Title, and prereferral interventions in order to
remediate a student’s performance prior to referral for special education;
(8)
[establishes plans and policies] for the appropriate declassification of
students with disabilities which must include:
(i)
. . .
(ii)
. . .
(iii)
the provision of educational and support services to the student upon
declassification; [and]
(9)
[establishes administrative procedures] for the selection and board
appointment of an impartial hearing officer consistent with the procedures in
paragraph (e)(1) of this section and section 200.5(j) of this Part.
(10) and
establishes a plan, pursuant to sections 1604(29-a), 1709(4-a), 2503(7-a) and
2554(7-a) of the Education Law, to ensure that all instructional materials to be
used in the schools of the district are available in a usable alternative
format, which shall meet National Instructional Materials Accessibility Standard
[as defined in 20 U.S.C. section 1474(e)(3)(B) (Public Law section 108-446,
section 674, 118 STAT. 2792; Superintendent of Documents, U. S. Government
Printing Office, Stop SSOP, Washington, DC 20402-0001; 2004] in accordance
with Appendix C to Part 300 of Title 34 of the Code of Federal Regulations (Code
of Federal Regulation, 2006 edition, title 34, Part 300, Appendix C, Federal
Register/ Vol. 71, No. 156/ August 14, 2006/ pp. 46814-46817 – Office of the
Federal Register, National Archives and Records Administration, 800 North
Capitol Street, NW, Suite 700, Washington, DC 20001; available at the Office
of Vocational and Educational Services for Individuals with Disabilities, Room
1624, One Commerce Plaza, Albany, NY 12234), for each student with a disability
in accordance with the student's educational needs and course selections at the
same time that such materials are available to non-disabled students. For purposes of this paragraph,
"alternative format" is defined as any medium or format for the presentation of
instructional materials, other than a traditional print textbook, that is needed
as an accommodation for a student with a disability enrolled in the school
district, including but not limited to Braille, large print, open and closed
captioned, audio, or an electronic file. An electronic file must be compatible
with at least one alternative format conversion software program that is
appropriate to meet the needs of the individual student. The plan shall:
(i)
. . .
(ii)
. . .
(iii)
. . .
(iv)
. . .
(v) .
. .
(11) [establishes
administrative practices and procedures] to ensure that:
(i)
. . .
(a)
. . .
(ii)
. . .
(iii)
. . .
(12) that
[identifies] identify the measurable steps it shall take to recruit,
hire, train and retain highly qualified personnel, as defined in section
120.6 of this Title and 34 CFR
300.18 (Code of Federal Regulations, 2006 edition, title 34, section 300.18,
Federal Register/ Vol. 71, No. 156/ August 14, 2006/ pp. 46758-46759 – Office of
the Federal Register, National Archives and Records Administration, 800 North
Capitol Street, NW, Suite 700, Washington, DC 20001; available at the Office of
Vocational and Educational Services for Individuals with Disabilities, Room
1624, One Commerce Plaza, Albany, NY 12234), to
provide special education programs and services;
(13) that
[describes] describe the guidelines for the provision of appropriate
accommodations necessary to measure the academic achievement and functional
performance of the student in the administration of districtwide assessments;
[and]
(14) that
[identifies] identify how the district, to the extent feasible, will use
universal design principles in developing and administering any districtwide
assessment programs; and
(15) to ensure
that the school district publicly reports on revisions to its policies,
procedures and/or practices upon a finding by the Department that the district
has inappropriate policies, procedures or practices resulting in a significant
disproportionality by race/ethnicity in the suspension, identification,
classification and/or placement of students with
disabilities.
(e)
Maintenance of lists. The
board of education or trustees of each school district shall establish a list
of:
(1)
the name and statement of the qualifications of each impartial hearing
officer who is:
(i)
certified by the Commissioner of Education pursuant to section
[220.1(x)(2)] 200.1(x)(4) of this Part; and
(ii)
. . .
(2)
. . .
(3)
. . .
(f)
. . .
(g)
. . .
(h)
. . .
(i)
Responsibility of boards of cooperative educational services
(BOCES). (1) Responsibility for
ensuring the availability of instructional materials in alternative formats for
students with disabilities. By July
1, 2002, each BOCES shall establish a plan to ensure that all instructional
materials to be used in the programs of the BOCES are available in a usable
alternative format, which shall meet National Instructional Materials
Accessibility Standard [as defined in 20 U.S.C. section 1474(e)(3)(B) (Public
law section 108-446, section 674, 118 STAT. 2792; Superintendent of Documents,
Stop SSOP, U. S. Government Printing Office, Washington, DC 20402-0001; 2004]
in accordance with Appendix C to Part 300 of Title 34 of the Code of Federal
Regulations (Code of Federal Regulations, 2006 edition, title 34, Part 300,
Appendix C, Federal Register/ Vol.71, No.156/ August 14, 2006/ pp. 46814-46817 -
Office of the Federal Register, National Archives and Records Administration,
800 North Capitol Street, NW Suite 700, Washington DC 20001; available at
the Office of Vocational and Educational Services for Individuals with
Disabilities, Room 1624, One Commerce Plaza, Albany, New York 12234), for each
student with a disability in accordance with the student's educational needs and
course selections at the same time that such materials are available to
non-disabled students. For purposes
of this subdivision, "alternative format" is defined as any medium or format for
the presentation of instructional materials, other than a traditional print
textbook, that is needed as an accommodation for a student with a disability
enrolled in a program of the BOCES, including but not limited to Braille, large
print, open and closed captioned, audio, or an electronic file. An electronic file must be compatible
with at least one alternative format conversion software program that is
appropriate to meet the needs of the individual student. The plan shall:
(i)
. . .
(ii)
. . .
(iii)
. . .
(iv)
. . .
(v)
. . .
(2)
. . .
5.
Subparagraph (v) of paragraph (2) of subdivision (c) and subdivision (d)
of section 200.3 of the Regulations of the Commissioner of Education are
amended, effective July 19, 2007,
as follows:
(v) a
school psychologist, whenever a new psychological evaluation is reviewed or a
change to a program option with a more intensive staff/student ratio, as set
forth in section [200.6(g)(4)] 200.6(h)(4) of this Part, is considered;
(d)
The regular education teacher of the student with a disability must, to
the extent appropriate, participate in the development, review and revision of a
student's IEP, including assisting in the determination
of:
(1)
appropriate positive behavioral interventions and supports and
other strategies for the student; and
(2)
supplementary aids and services, program modifications [or] and
supports for school personnel that will be provided for the student, consistent
with section 200.4(d) of this Part.
6.
Section 200.4 of the Regulations of the Commissioner of Education is
amended, effective July
19, 2007, as
follows:
(a)
Referral. A student
suspected of having a disability shall be referred in writing to the chairperson
of the district's committee on special education or to the building
administrator of the school which the student attends or is eligible to attend
for an individual evaluation and determination of eligibility for special
education programs and services.
(1)
. . .
(2) . .
.
(3) . .
.
(4) . .
.
(5) . .
.
(6) . .
.
(7) . .
.
(8)
Except as otherwise provided in section 200.5(b)(6) of this Part,
[In] in the absence of a written agreement to withdraw a referral, as
described in paragraph (7) of this subdivision, and in the event that parental
consent to an initial evaluation is not obtained within 30 days of the
date of receipt of referral, the chairperson shall document attempts made by the
chairperson or other representatives of the committee to obtain parental
consent, and shall notify the board of education that they may utilize the due
process procedures described in section 200.5 of this Part to permit the
district to conduct an evaluation of the student without the consent of the
parent.
(9)
The building administrator, upon receipt of a referral or copy of a
referral, may request a meeting with the parent or person in parental
relationship to the student, and the student, if appropriate, to determine
whether the student would benefit from additional general education support
services as an alternative to special education, including the provision of
educationally related support services, speech and language improvement
services, academic intervention services, and any other services designed to
address the learning needs of the student and maintain a student's placement in
general education with the provision of appropriate educational and support
services.
(i) If the
person making the referral is a professional staff member of the school district
in which the student resides, that person shall attend such meeting. The
building administrator shall ensure that the parent understands the proceedings
of the meeting and shall arrange for the presence of an interpreter, if
necessary. Any other person making
a referral shall have the opportunity to attend such meeting. If at such meeting the parent or person
in parental relationship and the building administrator agree in writing that,
with the provision of additional general education support services, the
referral is unwarranted, the referral shall be deemed withdrawn, and the
building administrator shall provide the chairperson of the committee on special
education, the person who made the referral if a professional staff member of
the school district, the parent or person in parental relationship to the
student, and the student, if appropriate, with copies of the
agreement.
(ii)
The copy of the agreement provided to the parent or person in parental
relationship shall be in the native language of such person. Such agreement shall contain a
description of the additional general education support services to be
provided, instructional strategies to be used and student centered data to be
collected and the proposed duration of such program. A copy of the agreement shall also be
placed in the student's cumulative education record file.
(iii)
The meeting:
[(i)](a) shall be conducted
within 10 school days of the building administrator's receipt of the referral;
and
[(ii)](b)
shall not impede a committee on special education from continuing its
duties and functions under this Part.
(b)
Individual evaluation and reevaluation. (1) Unless a referral for an
evaluation submitted by a parent or a school district is withdrawn pursuant
to paragraph (a) (7) or (9) of this section after parental consent has been
obtained or a parental refusal to consent is overridden, an individual
evaluation of the referred student shall be initiated by a committee on special
education and shall include a variety of assessment tools and strategies,
including information provided by the parent, to gather relevant functional,
developmental and academic information about the student that may assist in
determining whether the student is a student with a disability and the content
of the student’s individualized education program, including information related
to enabling the student to participate and progress in the general education
curriculum (or for a preschool child, to participate in appropriate activities).
The individual evaluation must be
at no cost to the parent, and the initial evaluation must include at least:
(i)
. . .
(ii)
. . .
(iii)
. . .
(iv)
an observation of the student in the [current educational placement]
student’s learning environment (including the regular classroom setting) or,
in the case of a student of less than school-age or out of school, an
environment appropriate for a student of that age, to document the student’s
academic performance and behavior in the areas of difficulty; and
(v)
. . .
(2) . .
.
(3) . .
.
(4) . .
.
(5) . .
.
(6)
School districts shall ensure that:
(i)
. . .
[(ii) if an
assessment is not conducted under standard conditions, a description of the
extent to which it varied from standard conditions (e.g., the qualifications of
the person administering the test, or the method of test administration) must be
included in the evaluation report;]
[(iii)](ii) [tests]
assessments and other evaluation materials include those tailored to
assess specific areas of educational need and not merely those which are
designed to provide a general intelligence quotient;
[(iv)](iii) [tests]
assessments are selected and administered to ensure that, when [a test]
an assessment is administered to a student with impaired sensory, manual
or speaking skills, the [test] assessment results accurately reflect the
student's aptitude or achievement level or whatever other factors the test
purports to measure, rather than reflecting the student's impaired sensory,
manual or speaking skills, except where those skills are factors which the test
purports to measure;
[(v)](iv) .
. .
[(vi)](v) . .
.
[(vii)](vi) . .
.
[(viii)](vii) . .
.
[(ix)](viii) . .
.
[(x)](ix) . .
.
[(xi)](x) .
. .
[(xii)](xi) . .
.
[(xiii)](xii) for
purposes of eligibility and continuing eligibility determinations, a copy of the
evaluation report and the documentation of determination of eligibility are
provided at no cost to the parent;
[(xiv)](xiii) the
procedures for evaluating students suspected of having a learning disability are
in accordance with [sections 300.540 through 300.543 of title 34 of the Code of
Federal Regulations (Code of Federal Regulations, 1999 edition, Superintendent
of Documents, U.S. Government Printing Office, Washington, D.C. 20402: 1999 -
available at the Office of Vocational and Educational Services for Individuals
with Disabilities, Room 1624, One Commerce Plaza, Albany, NY 12234)]
subdivision (j) of this section;
[(xv)](xiv) the
procedures for conducting expedited evaluations are conducted pursuant to [Part
201] section 201.6 of this Title;
[(xvi)](xv) . .
.
[(xvii)](xvi)
assessments of students with disabilities who transfer from
one school district to another school district in the same [academic]
school year are coordinated with such student's prior and subsequent
schools, as necessary, and as expeditiously as possible to ensure prompt
completion of full evaluations.
(7)
. . .
(8)
. . .
(9)
. . .
(c)
Eligibility determinations.
(1) [Upon completing the administration of tests and other evaluation
materials,] In interpreting evaluation data for the purpose of determining if
a student is a student with a disability, as defined in sections 200.1(mm) or
(zz) of this Part, and determining the educational needs of the student, the
committee on special education and other qualified individuals must [determine
whether the student is a student with a disability, as defined in sections
200.1(mm) or 200.1(zz) of this Part] draw upon information from a variety of
sources, including aptitude and achievement tests, parent input, and teacher
recommendations, as well as information about the student’s physical condition,
social or cultural background, and adaptive behavior; and ensure that
information obtained from all these sources is documented and carefully
considered. [and the] The school district must provide a copy of the
evaluation report and the documentation of eligibility to the student's parent.
(2) A
student shall not be determined eligible for special education if the
determinant factor is:
(i)
. . .
(ii)
lack of appropriate instruction in math; or
(iii)
. . .
(3)
. . .
(4) . .
.
(5) . .
.
(6)
[Learning disabilities. In
determining whether] The determination that a student has a learning
disability as defined in section 200.1(zz)(6) of this Part shall be made
pursuant to subdivision (j) of this section.[, the school
district:
(i)
may use a process that determines if the student responds to scientific,
research-based intervention as part of the evaluation procedures pursuant to
paragraph (b) of this section; and
(ii)
is not required to consider whether a student has a severe discrepancy
between achievement and intellectual ability in oral expression, listening
comprehension, written expression, basic reading skill, reading comprehension,
mathematical calculation or mathematical reasoning.]
(d)
Recommendation. For a student not previously identified as having a
disability, the committee on special education shall provide a recommendation to
the board of education, which shall arrange for the appropriate special
education programs and services to be provided to the student with a disability
within 60 school days of the receipt of consent to evaluate. For a student with
a disability referred for review pursuant to subdivision (f) of this section, a
recommendation shall be provided to the board of education, which shall arrange
for the appropriate special education programs and services to be provided to
the student with a disability within 60 school days of the referral for review
of the student with a disability. Prior to the development of a recommendation,
the committee shall ensure that the appropriateness of [the] reading and math
instruction and other resources of the regular education program, including
educationally related support services, and academic intervention services, has
been considered.
(1) . .
.
(2)
Individualized education program (IEP). If the student has been
determined to be eligible for special education services, the committee shall
develop an IEP. IEPs developed
on or after July 1, 2008, shall be on a form prescribed by the
Commissioner. In developing the
recommendations for the IEP, the committee must consider the results of the
initial or most recent evaluation; the student’s strengths; the concerns of the
parents for enhancing the education of their child; the academic, developmental
and functional needs of the student, including, as appropriate, the results of
the student's performance on any general State or districtwide assessment
programs; and any special considerations in paragraph (3) of this subdivision.
The IEP recommendation shall
include the following:
(i)
. . .
(ii)
. . .
(iii)
Measurable annual goals.
(a)
The IEP shall list measurable annual goals, including academic and
functional goals, consistent with the student's needs and abilities. The measurable annual goals[, including
benchmarks or short-term objectives,] must relate to:
(1)
. . .
(2)
. . .
(b)
. . .
(c)
. . .
(iv)
. . .
(v)
Special education program and services.
(a)
The IEP shall indicate the recommended special education program and
services as defined in section 200.1(qq) and 200.1(ww) of this Part from the
options set forth in section 200.6 of this Part or, for preschool students from
those options set forth in section [200.16(h)] 200.16(i) of this Part,
and the supplementary aids and services as defined in section 200.1(bbb) of this
Part that will be provided for the student:
(1)
. . .
(2)
. . .
(3)
. . .
(b)
. . .
(vi)
. . .
(vii) . .
.
(viii)
Participation in regular [programs] class. The IEP shall provide:
(a)
an explanation of the extent, if any, to which the student will not
participate in regular [education programs] class; or
(b) . .
.
(c) . .
.
(d) . .
.
(ix)
. . .
(x) . .
.
(xi)
. . .
(xii) . .
.
(3) . .
.
(4)
Such recommendations shall
(i)
be developed in meetings of the committee on special education.
(a) . .
.
(b)
where a child is determined to be at risk of a future placement in a
residential school, the committee must, with parental consent or consent of a
student 18 years of age or older, request in writing that a designee of the
appropriate county or State agency participate in any proceeding of the
committee to make recommendations concerning the appropriateness of residential
placement and other programs and placement alternatives, including but not
limited to, community support services that may be available to the family.
The committee must notify the local
social services district when a student who is in a foster care placement is at
risk of a future placement in a residential school. A copy of such request must be forwarded
to the Office of Mental Health and the Office of Mental Retardation and
Developmental Disabilities. In the
event that such persons are unable to attend such meetings, the committee shall
attempt alternative means allowing for their participation, such as individual
or conference telephone discussions, and such attempts shall be documented;
(c)
if the purpose of the meeting is to consider [the need for transition
services] the postsecondary goals for the student and the transition services
needed to assist the student in reaching those goals, the school district
shall invite the student [and a representative of the agencies likely to be
responsible for providing or paying for transition services]. If the student does not attend, the
district shall take steps to ensure that the student's preferences and interests
are considered. To the extent
appropriate and with parental consent or consent of a student 18 years of age or
older, the school district must invite a representative of any participating
agency that is likely to be responsible for providing or paying for transition
services. If an agency invited
to send a representative to a meeting does not do so, the district [shall]
should take steps to involve the other agency in the planning of any
transition services;
(d) . .
.
(ii)
. . .
(5) . .
.
(6) . .
.
(e)
IEP implementation. (1)
. . .
(2)
. . .
(3)
. . .
(4)
. . .
(5)
. . .
(6)
. . .
(7)
. . .
(8)
Students with disabilities who transfer school districts. (i) Transfer within
(ii)
Transfer from outside
(iii)
. . .
(9)
. . .
(f)
. . .
(g)
Amendments to the IEP. Amendments to an IEP made after the
annual review [by the CSE] may be made by rewriting the IEP or by developing a
written document to amend or modify the student’s current IEP, provided
that:
(1) . .
.
(2) . .
.
(h)
Requests to the committee on special education pursuant to section 4005
of the Education Law. (1) If,
pursuant to section 4005 of the Education Law, a committee on special education
receives a written request for evaluative information and program
recommendations for a student from a Family Court judge, a probation department,
a social services district, the Office of Child and Family Services, or a
preadmission certification committee established pursuant to section 9.51(d) of
the Mental Hygiene Law, the committee shall, with parental consent or consent
of a student 18 years of age or older, provide such information and
recommendation to the requesting agency within 42 days of the date of receipt of
such a request, provided that the committee on special education can obtain the
consent of the student's parent to conduct an evaluation.
(2)
. . .
(3)
. . .
(i)
Written notice upon graduation or aging out. Pursuant to Education Law,
section 4402(1)(b)(5), the committee on special education or, in the case of a
State-operated school, the multidisciplinary team, shall provide written notice
to the parents or guardian of each student specified in subparagraphs (1)(i) and
(ii) of this subdivision and, if such student is 18 years of age or older, to
the student, of the date upon which the student will no longer be entitled to
receive tuition free educational services by reason of receipt of a high school
diploma or in accordance with Education Law, section 4402(5), whichever is
earlier.
(1)
. . .
(2)
. . .
(3)
In addition to the requirements of paragraph (2) of this subdivision, the
notice to the parent, or student, where appropriate, shall:
(i)
. . .
(ii)
. . .
(iii)
provide assurances of the confidentiality of personally identifiable data
which shall be in accordance with section 200.5(e) of this Part and section
[247.4] 247.5 of this Title, as applicable.
(4)
. . .
(5)
. . .
(j)
Additional procedures for identifying students with learning
disabilities.
(1) Referral. If, prior to a referral, a student has not made adequate progress after an appropriate period of time when provided instruction, as described in paragraph (4)(ii)(a) and (b) of this subdivision, and whenever a student is referred for an evaluation, the school district must promptly request parental consent to evaluate the student to determine if the student needs special education and related services, and must adhere to the timeframes described in section 200.4(b)(4) and (7) of this Part, unless extended by mutual written agreement of the student’s parents and the CSE.
(2) Individual
evaluation. An individual
evaluation of a referred student shall be initiated by the CSE consistent with
subdivision (b) of this section.
The individual evaluation shall include a variety of assessment tools and
strategies pursuant to subdivision (b) of this section and may not rely on any
single procedure as the sole criterion for determining
eligibility.
(i)
Observation. The CSE, in
determining whether a student has a learning disability, shall:
(a) use information
from an observation in routine classroom instruction and monitoring of the
student’s performance that was done before the student was referred for an
evaluation; or
(b) arrange to have
an observation of the student’s academic performance in the regular classroom
after the student has been referred for an evaluation and parental consent,
consistent with section 200.5(b) of this Part, is obtained. Such observation shall be conducted by
an individual specified in paragraph (4)(i) of this subdivision.
(3)
Process for determining eligibility. In determining whether a student has a
learning disability, the school district shall, consistent with the criteria in
paragraph (4) of this subdivision, use:
(i)
a process based on the student’s response to scientific, research-based
intervention pursuant to section 100.2(ii) of this Title; or
(ii)
an alternative research-based procedure to determine if a student has a
learning disability as defined in section 200.1(zz)(6) of this Part; or
(iii)
a severe discrepancy between achievement and intellectual ability in oral
expression, listening comprehension, written expression, basic reading skill,
reading fluency skills, reading comprehension, mathematical calculation and/or
mathematical problem solving, provided that after July 1, 2010, a school
district shall not use the severe discrepancy criteria to determine that a
student in kindergarten through grade four has a learning disability as defined
in section 200.1(zz)(6) of this Part.
(4)
Criteria for determining the existence of a learning disability.
(i)
The CSE, which shall include the student’s regular education teacher as
defined in section 200.1(pp) of this Part and at least one person qualified to
conduct individual diagnostic examinations of students (such as a school
psychologist, teacher of speech and language disabilities, speech/language
pathologist or reading teacher), may determine that a student has a learning
disability, as defined in section 200.1(zz)(6) of this Part, if:
(a)
The student does not achieve adequately for the student’s age or to meet
State-approved grade-level standards in one or more of the following areas, when
provided with learning experiences and instruction appropriate for the student’s
age or State-approved grade–level standards:
(1) Oral expression,
(2) Listening Comprehension,
(3) Written expression,
(4) Basic reading skills,
(5) Reading fluency skills,
(6) Reading comprehension,
(7) Mathematics calculation,
(8) Mathematics problem solving, and
(b) The student:
(1) does not make sufficient progress to meet age or State-approved grade-level standards in one or more of the areas identified in paragraph (4)(i)(a) of this subdivision when using a process based on the student’s response to scientific, research-based intervention; or
(2) The student exhibits a pattern of strengths and weaknesses in performance, achievement, or both, relative to age, State-approved grade-level standards, or intellectual development that is determined by the group to be relevant to the identification of a learning disability, using appropriate assessments consistent with section 200.4(b) of this Part; and
(c) The CSE determines that its findings under paragraph (4)(i)(a) and (b) of this subdivision are not primarily the result of:
(1) a visual, hearing, or motor disability;
(2) mental retardation;
(3) emotional disturbance;
(4) cultural factors;
(5) environmental or economic disadvantage; or
(6) limited English proficiency.
(ii) To ensure that underachievement in a student suspected of having a learning disability is not due to lack of appropriate instruction in reading or mathematics, the CSE must consider, as part of the evaluation procedures pursuant to section 200.4(b) and (c) of this Part:
(a) data that demonstrate that prior to, or as a part of, the referral process, the student was provided appropriate instruction in regular education settings, delivered by qualified personnel; and
(b) data-based documentation of repeated assessments of achievement at reasonable intervals, reflecting formal assessment of student progress during instruction, which was provided to the student’s parents.
(5) Specific documentation for the eligibility determination.
(i) When determining eligibility for a student suspected of having a learning disability, the CSE shall prepare a written report containing a statement of:
(a) whether the student has a learning disability;
(b) the basis for making the determination, including an assurance that the determination has been made in accordance with section 200.4(c)(1) of this Part;
(c) the relevant behavior, if any, noted during the observation of the student and the relationship of that behavior to the student’s academic functioning;
(d) the educationally relevant medical findings, if any;
(e) whether, consistent with paragraph (4)(i)(a) and (b) of this subdivision, the student does not achieve adequately for the student’s age or to meet State-approved grade-level standards; and
(1) the student does not make sufficient progress to meet age or State-approved grade-level standards; or
(2) the student exhibits a pattern of strengths and weaknesses in performance, achievement, or both, relative to age, State-approved grade level standards or intellectual development;
(f)
the determination of the CSE concerning the effects of a visual, hearing,
or motor disability; mental retardation; emotional disturbance; cultural
factors; environmental or economic disadvantage; or limited English proficiency
on the student’s achievement level; and
(g) if the student
has participated in a process that assesses the student’s response to
scientific, research-based intervention:
(1)
the instructional strategies used and the student-centered data
collected; and
(2)
the documentation that the student’s parents were notified in accordance
with section 100.2(ii)(e) of this Title.
(ii) Each CSE member
must certify in writing whether the report reflects the member’s
conclusion. If it does not reflect
the member’s conclusion, the CSE member must submit a separate statement
presenting the member’s conclusions.
7.
Section 200.5 of the Regulations of the Commissioner of Education is
amended, effective July
19, 2007, as
follows:
(a) Prior
written notice (Notice of Recommendation) and other written
notifications. (1) Prior written notice (Notice of
Recommendation) that meets the requirements of section 200.1(oo) of this
Part must be given to the parents of a student with a disability a reasonable
time before the school district proposes to or refuses to initiate or change the
identification, evaluation, educational placement of the student or the
provision of a free appropriate public education to the student. Effective July 1, 2008, the prior
written notice shall be on the form prescribed by the
Commissioner.
(2) . .
.
(3) The
prior written notice must include:
(i)
. . .
(ii)
. . .
(iii)
a description of [any] other options that the [district] committee on
special education considered and the reasons why those options were
rejected;
(iv)
a description of each evaluation procedure, [test] assessment,
record, or report the district used as a basis for the proposed or refused
action;
(v) a
description of [the] other factors that are relevant to the district’s
proposal or refusal;
(vi)
a statement that the parents of a student with a disability have
protection under the procedural safeguards of this Part, and, if this notice
is not an initial referral for an evaluation, the means by which a copy of a
description of the procedural safeguards can be obtained;
and
(vii)
. . .
(4)
. . .
(5) . .
.
(6)
Other required notifications.
A parent of a student with a disability shall also be provided written
notification as follows:
(i)
. . .
(ii)
. . .
(iii)
For students described in section [200.4(h)(1)] 200.4(i)(1),
notice must be provided to the parent and, beginning at age 18 to the student,
in accordance with section [200.4(h)(2) and (3)] 200.4(i)(2) and (3) of
this Part.
(iv)
. . .
(v)
. . .
(7)
. . .
(b)
Consent. (1) The school district must make reasonable efforts to
obtain written informed consent of the parent, as such term is defined in
section 200.1(l) of this Part, and must have a detailed record of its attempts,
and the results of those attempts. Written consent of the parent[, defined
in section 200.1(l) of this Part,] is required:
(i)
prior to conducting an initial evaluation or reevaluation, except
that:
(a)
. . .
(b)
parental consent need not be obtained for a reevaluation if the school
district can demonstrate that it has [taken] made reasonable [measures]
efforts to obtain that consent, and the student’s parents failed to
respond;
[(1) the
school district must have a record of its attempts to obtain parental
consent;]
(c)
in the event the parent of the student to be evaluated does not grant
consent for an initial evaluation, such parent shall be informed by the
committee chairperson that, upon request, the parent will be given an
opportunity to attend an informal conference with the committee or designated
professionals most familiar with the proposed evaluation, the person who
referred the student for such an evaluation, and counsel or an advisor of the
parent’s choice, at which time the parent shall be afforded an opportunity to
ask questions regarding the proposed evaluation. If at this meeting the parent and the
person initiating the referral agree in writing that the referral is not
warranted, the referral shall be withdrawn. Except in the case of a preschool
child, a student who is home instructed pursuant to section 100.10 of this
Title or a student placed in a private school by the parents at their own
expense, if the parent does not request or attend such a conference, or
continues to withhold consent for evaluation otherwise required for a period of
30 days after the date of receipt of a referral, the board of education may
pursue the initial evaluation of the student by utilizing the due process
procedures described in this section;
(ii)
. . .
(iii)
. . .
(iv)
prior to releasing any personally identifiable information as described
in subdivision (e) of this section, in accordance with sections 200.2(b)(6) and
[200.4(g)] 200.4(h) of this Part;
(v)
prior to [each time] the school district [proposes to access]
accessing a parent’s private or public insurance proceeds.
(a)
the parents must be informed that their refusal to permit the school
district to access their public benefits or insurance or private
insurance does not relieve the school district of its responsibility to ensure
that all required services are provided at no cost to the
parents.
(2)
. . .
(3)
If the parents of a student with a disability refuse to give
consent or fail to respond to a request to provide consent for an initial
evaluation or reevaluation, the school district may, but is not required
to, continue to pursue those evaluations by using the due process procedures
described in this section.
The school district does not violate its obligation to locate,
identify, and evaluate a student in accordance with sections 200.2(a) and
200.4(b) and (c) of this Part if it declines to pursue the
evaluation.
(4)
. . .
(5)
Consent for a ward of the State. If the student is a ward of the State
and is not residing with the student's parent, the school district shall make
reasonable efforts to obtain the informed consent from the parent of the student
for an initial evaluation to determine whether the student is a student with a
disability. The school district is
not required to obtain informed consent from the parent of a student, as defined
in section 200.1(ii) of this Part, for an initial evaluation to determine
eligibility for special education services if:
(i)
. . .
(ii)
. . .
(iii)
the rights of the parent to make educational decisions have been
subrogated by a judge in accordance with State law and consent for an initial
evaluation has been given by an individual appointed by the judge to represent
the student.
(6)
Consent for a student who is home instructed, pursuant to section 100.10
of this Title, or placed in a private school by parents at their own
expense. If a parent of student who
is home instructed or placed in a private school by their parents at their own
expense does not provide consent for an initial evaluation or reevaluation, or
the parent fails to respond to a request to provide consent, the school district
may not continue to pursue those evaluations by using the due process procedures
described in this section; and the school district is not required to consider
the student as eligible for special education
services.
(c)
[Notice of meetings] Meeting notice. (1) Whenever the committee on special
education proposes to conduct a meeting related to the development or review of
a student’s IEP, or the provision of a free appropriate public education to the
student, the parent must receive notification in writing at least five days
prior to the meeting. The meeting
notice may be provided to the parent less than five days prior to the meeting to
meet the timelines in accordance with Part 201 of this Title and in situations
in which the parent and the school district agree to a meeting that will occur
within five days. The parent may
elect to receive the notice of meetings by an electronic mail (e-mail)
communication if the school district makes such option available. Effective July 1, 2008, meeting
notice shall be on a form prescribed by the
Commissioner.
(2)
Such notice shall:
(i)
. . .
(ii)
. . .
(iii)
. . .
(iv)
. . .
(v)
. . .
(vi)
. . .
(vii) if
the purpose of the meeting is to consider postsecondary goals and
transition services, the meeting notice must also:
(a)
. . .
(b)
. . .
(c)
. . .
(d)
Parent participation in CSE meetings. (1) . .
.
(2)
. . .
(3)
. . .
(4)
. . .
(5)
. . .
(6)
The parents of a student with a disability must be afforded an
opportunity to inspect and review all education records with respect to the
identification, evaluation, and educational placement of the student and the
provision of a free appropriate public education to the student, in accordance
with the requirements of 34 C.F.R. sections [300.562 through 300.576] 300.613
through 300.625 (Code of Federal Regulations, [1999] 2006 edition,
[Superintendent of Documents, U. S. Government Printing Office, Washington, DC
20402-9328: 1999 -] title 34, sections 300.613 – 300.625, Federal Register/
Vol. 71, No. 156/ August 14, 2006/ pp. 46803-46804, Office of the Federal
Register, National Archives and Records Administration, 800 North Capitol
Street, NW, Suite 700, Washington, DC 20001; available at the Office of
Vocational and Educational Services for Individuals with Disabilities, Room 1624
One Commerce Plaza, Albany, NY 12234).
(7)
. . .
(e)
Confidentiality of personally identifiable data. (1) . .
.
(2)
Each public school, public
agency and approved private school subject to the provisions of this Part
shall preserve the confidentiality of personally identifiable data, information
or records pertaining to students with disabilities. Such confidentiality must be preserved in
a manner consistent with the procedures adopted pursuant to section 200.2(b)(6)
of this Part and/or in accordance with 20 USC 1232(g) and the provisions of Part
99 of title 34 of the Code of Federal Regulations or its successor and
sections 300.610 through 300.625. (United States Code, [1994] 2000
edition, Volume [10] 11, 2001; United States Code, 2000 Edition, Supplement
III, Volume Two, 2005, Superintendent of Documents, U. S. Government
Printing Office, Washington, DC 20402-9328: [1995] 2004; Code of Federal
Regulations, [1999] 2005 edition, title 34, Part 99, Superintendent of
Documents, U. S. Government Printing Office, Stop SSOP, Washington, DC
20402 -0001 [: 1999] ; Code of Federal Regulations, 2006 edition,
title 34, sections 300.610-300.625, Federal Register/ Vol.71, No.156/ August 14,
2006/ pp.46802-46804 - Office of the Federal Register, National Archives and
Records Administration, 800 North Capitol Street, NW Suite 700, Washington DC
20001 – available at the Office of Vocational and Educational Services for
Individuals with Disabilities; Room 1624, One Commerce Plaza, Albany, NY
12234).
(f)
Procedural safeguards notice. (1) . .
.
(2)
. . .
(3) A
copy of such notice must be given to the parents of a student with a disability,
at a minimum one time per year and also:
(i)
. . .
(ii)
upon the first filing of a due process complaint notice to request
mediation or an impartial hearing as described in subdivisions (h) and (j) of
this section; [and]
(iii)
upon request by a parent[.];
(iv)
upon a decision to impose a suspension or removal that constitutes a
disciplinary change in placement pursuant to section 201.2(e) of this Title;
and
(v)
upon first receipt of a State complaint pursuant to section 200.5(l) of
this Part.
(4)
[The procedural safeguards notice must include a full explanation of all
of the procedural safeguards available under this Part relating to
(i)
independent educational evaluation;
(ii)
prior written notice;
(iii)
parental consent;
(iv)
access to educational records;
(v)
opportunity to present and resolve due process complaints, including the
time period in which to request an impartial hearing, the opportunity for the
school district to resolve the complaint and the availability of mediation;
(vi)
the student’s placement during pendency of due process proceedings;
(vii)
procedures for students who are subject to placement in an interim
alternative educational setting;
(viii)
requirements for unilateral placement by parents of students in private
schools at public expense;
(ix)
due process hearings, including requirements for disclosure of evaluation
results and recommendations;
(x)
State-level appeals;
(xi)
civil action, including the time period in which to file such action;
(xii)
attorney’s fees;
(xiii) State
complaint procedures, including a description of how to file a complaint and the
timelines under those procedures; and
(xiv) the
parents’ right to receive information upon request relating to obtaining free or
low-cost legal and other relevant services at no expense to the school
district.]
[(5)](4) . . .
[(6)](5) . . .
(g)
Independent educational evaluations. (1) Requests by parents. If the
parent disagrees with an evaluation obtained by the school district, the parent
has a right to obtain an independent educational evaluation at public
expense. A parent is entitled to
only one independent educational evaluation at public expense each time the
school district conducts an evaluation with which the parent
disagrees.
(i)
. . .
(ii)
The criteria under which the evaluation is obtained, including the
location of the evaluation and the qualifications of the examiner, shall be the
same as the criteria which the school district uses when it initiates an
evaluation, to the extent those criteria are consistent with the parent’s right
to an independent educational evaluation. A school district may not impose
additional conditions or timelines related to obtaining an independent
educational evaluation at public expense.
(iii)
If a parent requests an independent educational evaluation at public
expense, the school district may ask for the parent’s reason why he or she
objects to the public evaluation.
(a)
The explanation by the parent in subparagraph (iii) of this paragraph may
not be required and the school district may not unreasonably delay either
providing the independent educational evaluation at public expense or
[initiating a due process] filing a due process complaint notice to request
a hearing to defend the public evaluation.
(iv)
If a parent requests an independent educational evaluation at public
expense, the school district must, without unnecessary delay, either ensure an
independent educational evaluation is provided at public expense or [initiate an
impartial] file a due process complaint notice to request a hearing to
show that its evaluation is appropriate or that the evaluation obtained by the
parent does not meet the school district criteria.
(v)
[If the hearing officer determines that the evaluation is appropriate, or
that the evaluation obtained by the parent did not meet school district
criteria, the parent has a right to an independent evaluation, but not at public
expense.
(a)
If the parent obtains an independent evaluation at private expense, the
results of the evaluation must be considered by the school district in any
decision made with respect to the provision of a free appropriate public
education to the student; and may be presented as evidence at a hearing under
this section regarding the student.] If the school district files a due
process complaint notice to request an impartial hearing and the final decision
is that the evaluation is appropriate, or that the evaluation obtained by the
parent did not meet school district criteria, the parent has the right to an
independent educational evaluation, but not at public
expense.
(vi)
If the parent obtains an independent educational evaluation at public
expense or shares with the school district an evaluation obtained at private
expense, the results of the evaluation:
(1)
must be considered by the school district, if it meets the school
district’s criteria, in any decisions made with respect to the provision of a
free appropriate public education for the student; and
(2)
may be presented by any party as evidence at an impartial hearing for
that student.
(2)
. . .
(h)
Mediation. (1) Each school
district must ensure that procedures are established and implemented to allow
parties to resolve disputes involving any matter for which an impartial due
process hearing may be brought through a mediation process, including matters
arising prior to the filing of a [request for an impartial hearing pursuant to
subdivisions (j) and (k) of this section] due process complaint notice.
Such procedures must ensure that:
(i)
. . .
(ii)
the mediation process is not used to deny or delay a parent’s right to a
[due process] hearing on the parent’s due process complaint or to deny
any other rights afforded under this Part;
(iii)
the mediation session is conducted by a qualified and impartial mediator,
as defined in section 200.1(dd) of this Part, who is trained in effective
mediation techniques, is knowledgeable in laws and regulations relating to the
provision of special education services and who is selected by the community
dispute resolution center on a random, i.e., rotation basis or, if not selected
on a random basis, then by mutual agreement of both parties[;]. An individual who serves as a mediator
may not be the employee of any school district or State agency that is involved
in the education or care of the student and must not have a personal or
professional interest that conflicts with the individual’s objectivity;
(iv)
. . .
(v)
. . .
(vi)
in the case that a resolution is reached to resolve the complaint through
the mediation process, the parties shall execute a legally binding written
agreement that sets forth the resolution and that states that all discussions
that occurred during the mediation process shall remain [be] confidential
and may not be used as evidence in any subsequent due process hearing or civil
proceeding of any federal or State court. The agreement shall be signed by both the
parent and a representative of the school district who has the authority to bind
the school district. The
written, signed agreement is enforceable in any State court of competent
jurisdiction or in a district court of the
(2)
. . .
(3)
. . .
(4)
. . .
(5)
. . .
(i)
Due process complaint notification requirements. (1) A parent or school district may
[present a] file a due process complaint with respect to any matter
relating to the identification, evaluation or educational placement of a student
with a disability, or a student suspected of having a disability, or the
provision of a free appropriate public education to such student. The party presenting the complaint, or
the attorney representing such party, shall provide a written due process
complaint notice to the party, which shall include:
(i)
. . .
(ii)
the address of the residence of the student [(or available contact
information] or in the case of a homeless student as defined in
section 200.1(hhh) of this Part[);], available contact information for
the student and the name of the school the student is
attending;
(iii)
. . .
(iv)
a description of the nature of the problem of the student relating to
such proposed or refused initiation or change, including facts relating
to such problem; and
(v)
. . .
(2)
. . .
(3)
The due process complaint notice shall be deemed to be sufficient unless
the party receiving the notice notifies the impartial hearing officer,
appointed in accordance with the rotational selection process in section
200.2(e)(1) of this Part and the requirements in subparagraphs (3)(i) and (ii)
of subdivision (j) of this Part, and the other party in writing, within
15 days of the receipt of the due process complaint notice, that the
receiving party believes the notice has not met the requirements of paragraph
(1) of this subdivision. Except
for expedited impartial hearings conducted pursuant to section 201.11 of this
Title, no party may challenge the sufficiency of a due process complaint using
this procedure.
(4)
. . .
(5)
. . .
(6)
. . .
(7)
Amended due process complaint notice. (i) . .
.
(ii)
The applicable timelines for an impartial due process hearing, including
the timelines for [a] the resolution [session] process, shall
recommence at the time the party files an amended due process complaint
notice.
(j)
Impartial due process hearings. (1) A parent or a school district must
submit a complete due process complaint notice pursuant to subdivision (i) of
this section prior to initiation of an impartial due process hearing on matters
relating to the identification, evaluation or educational placement of a student
with a disability, or the provision of a free appropriate public education to
the child.
(i)
. . .
(ii)
. . .
(iii)
[When an impartial due process hearing is requested by either party, the]
The school district shall inform the parent in writing of the
availability of mediation and of any free or low-cost legal and other relevant
services, such as parent centers, available in the
area:
(a)
when an impartial due process hearing is requested;
or
(b)
at the parent’s request.
(2)
Resolution [session] process. (i) [Preliminary] Resolution
meeting. Prior to the opportunity for an impartial due process hearing under
paragraph (1) of this subdivision, the school district shall, within 15 days of
receiving the due process complaint notice from the parent, convene a meeting
with the parents and the relevant member or members of the committee on special
education, as determined by the school district and the parent, who have
specific knowledge of the facts identified in the complaint, which shall include
a representative of the school district who has decision-making authority on
behalf of the school district and may not include an attorney of the school
district unless the parent is accompanied by an attorney, where the parents of
the student discuss their complaint and the facts that form the basis of the
complaint, and the school district has the opportunity to resolve the
complaint.
(ii)
. . .
(iii)
Waiver of resolution [session] process. The parent and the school
district may agree, in writing, to waive the resolution [session] process
or agree to use the mediation process described in subdivision (h) of this
section to resolve the dispute.
(iv)
Written settlement agreement. If, during the resolution process,
the parent and school district reach an agreement to resolve the complaint [at a
resolution session], the parties shall execute a legally binding agreement that
is signed by both the parent and a representative of the school district who has
the authority to bind the school district. Such agreement shall be enforceable in
any State court of competent jurisdiction or in a district court of the
(v)
[Timelines for resolution session] Resolution period. If the
school district has not resolved the due process complaint to the
satisfaction of the parents within 30 days of the receipt of the due process
complaint notice, the impartial due process hearing may occur[, and all the
applicable timelines for an impartial due process hearing under this subdivision
shall commence] consistent with the time period provided in section
200.5(j)(3)(iii) of this Part.
(vi)
Failure to convene or participate. Except where the parties have
jointly agreed to waive the resolution process or use mediation, the failure of
a parent filing a due process complaint to participate in the resolution meeting
will delay the timeline for the resolution process and due process hearing until
the meeting is held.
(1)
If the school district is unable to obtain the participation of the
parent in the resolution meeting after reasonable efforts have been made (and
documented), the school district may, at the conclusion of the 30-day period,
request that an impartial hearing officer dismiss the parents’ due process
complaint.
(2)
If the school district fails to hold the resolution meeting within 15
days of receipt of the parents’ due process complaint or fails to participate in
the resolution meeting, the parent may seek the intervention of the impartial
hearing officer to begin the due process hearing
timeline.
(3)
Initiation of an impartial due process hearing. [In the event that the
complaint is not resolved in a resolution session conducted pursuant to
paragraph (2) of this subdivision] Upon receipt of the parent’s due process
complaint notice, or the filing of the school district’s due process complaint
notice, the board of education shall arrange for an impartial due process
hearing to be conducted in accordance with the following rules:
(i)
Appointment from the impartial hearing officer list must be made in
accordance with the rotational selection process established in section
200.2(e)(1) of this Part and the administrative procedures established by the
board of education pursuant to section 200.2(b)(9) of this Part.
(a)
. . .
(b)
The impartial hearing officer may not accept appointment unless he or she
is available to make a determination of sufficiency of a due process complaint
notice within five days of receiving such a request and to initiate the hearing
within the first 14 days of the time period specified in clause (a)[,] or
(b) [or (c)] of subparagraph (iii) of this
paragraph.
(ii)
. . .
(iii)
Timeline for commencing the hearing or prehearing conference. Unless an extension is granted
pursuant to subparagraph (5)(i) of this subdivision:[, the hearing, or a
prehearing conference, shall commence within the first 14 days
after:
(a)
the date upon which the impartial hearing officer receives the parties’
written waiver of the resolution session; or
(b)
the date upon which the impartial hearing officer receives the parties’
written confirmation that a resolution session was held but no agreement could
be reached; or
(c)
the expiration of the 30-day period beginning with the receipt of the due
process complaint notice, whichever occurs first.]
(a)
when a school district files a due process complaint notice, the hearing
or prehearing conference shall commence within the first 14 days after the date
upon which the impartial hearing officer is appointed.
(b)
when a parent files a due process complaint notice, the hearing or a
prehearing conference shall commence within the first 14 days
after:
(1)
the date upon which the impartial hearing officer receives the parties’
written waiver of the resolution meeting; or
(2)
the impartial hearing officer receives the parties’ written confirmation
that a mediation or resolution meeting was held but no agreement could be
reached; or
(3)
the expiration of the 30-day resolution period, whichever shall occur
first, unless
(4)
the parties agree in writing to continue mediation at the end of the
30-day resolution period, in which case, the hearing or prehearing conference
shall commence within the first 14 days after the impartial hearing officer is
notified in writing that either party withdrew from
mediation.
(iv)
. . .
(v)
. . .
(vi)
. . .
(vii)
. . .
(viii) In the
event the impartial hearing officer requests an independent educational
evaluation as part of a hearing, the cost of the evaluation must be at public
expense.
(ix)
. . .
(x)
. . .
(xi)
. . .
(xii) The
parents, school authorities, and their respective counsel or representative,
shall have an opportunity to present evidence, compel the attendance of
witnesses and to confront and question all witnesses at the hearing. Each party shall have the right to
prohibit the introduction of any evidence the substance of which has not been
disclosed to such party at least five business days before the hearing.
(a)
Additional disclosure of information. [Except as provided for in section
201.11 of this Title, not] Not less than five business days prior to a
hearing, each party shall disclose to all other parties all evaluations
completed by that date and recommendations based on the offering party’s
evaluations that the party intends to use at the hearing. An impartial hearing officer may bar any
party that fails to comply with this requirement from introducing the relevant
evaluation or recommendation at the hearing without the consent of the other
party.
(b)
. . .
(c)
. . .
(d)
. . .
(e)
. . .
(f)
. . .
(g)
. . .
(xiii) . .
.
(xiv) . .
.
(xv) . .
.
(xvi) . .
.
(xvii) . .
.
(4)
Decision of the impartial hearing officer. (i) . .
.
(ii)
. . .
(iii)
Agreement. If the parties
reach agreement on any issue in dispute at any stage of the process, no hearing
decision shall be issued incorporating the terms of such
agreement.
(5)
Timeline to render a decision. Except as provided in section
[200.16(g)(9)] 200.16(h)(9) of this Part and section 201.11 of this
Title, the impartial hearing officer shall render a decision, and mail a copy of
the written, or at the option of the parents, electronic findings of fact and
the decision to the parents, to the board of education, and to the Office of
Vocational and Educational Services for Individuals with Disabilities (VESID) of
the State Education Department, not later than 45 days from the date required
for commencement of the impartial hearing in accordance with subparagraph
(3)(iii) of this subdivision. In
cases where extensions of time have been granted beyond the applicable required
timelines, the decision must be rendered and mailed no later than 14 days from
the date the impartial hearing officer closes the record. The date the record is closed shall be
indicated in the decision. The
record of the hearing and the findings of fact and the decision shall be
provided at no cost to the parents. All personally identifiable information
shall be deleted from the copy forwarded to VESID.
(i)
An impartial hearing officer may grant specific extensions of time beyond
the periods set out in this paragraph, in subparagraph (3)(iii) of this
subdivision, or in section [200.l6 (g)(9)] 200.16(h)(9) of this Part at
the request of either the school district or the parent. Each extension shall be for no more than
30 days. Only one 30-day
extension at a time may be granted. The reason for each extension must be
documented in the hearing record.
(ii)
. . .
(iii)
. . .
(iv)
. . .
(v)
The impartial hearing officer shall determine when the record is closed
and notify the parties of the date the record is closed. The decision of the impartial hearing
officer shall be based solely upon the record of the proceeding before the
impartial hearing officer, and shall set forth the reasons and the factual basis
for the determination. The decision
shall reference the hearing record to support the findings of fact. The impartial hearing officer shall
attach to the decision a list identifying each exhibit admitted into evidence.
Such list shall identify each exhibit by date, number of pages and exhibit
number or letter. In addition, the
decision shall include an identification of all other items the impartial
hearing officer has entered into the record. The decision shall also include a
statement advising the parents and the board of education of the right of any
party involved in the hearing to obtain a review of such a decision by the State
review officer in accordance with subdivision [(j)] (k) of this section.
The decision of the impartial
hearing officer shall be binding upon both parties unless appealed to the State
review officer.
(k)
. . .
(l)
State complaint procedures (1) Filing a complaint.
(i)
An organization or individual, including those from another state,
may file a signed written complaint under the procedures described in this
paragraph.
(ii)
The complaint must include:
(a)
. . .
(b)
. . .
(c)
the signature and contact information for the complainant;
and
(d)
if alleging violations with respect to a specific
student:
(1)
the name and address of the residence of the
student;
(2)
the name of the school the student is
attending;
(3)
in the case of a homeless child or youth as defined in section 200.1(hhh)
of this Part, available contact information for the student, and the name of the
school the student is attending;
(4)
a description of the nature of the problem of the student, including
facts relating to the problem; and
(5)
a proposed resolution of the problem to the extent known and available to
the party at the time the complaint is filed.
(iii)
Limitation of time for filing a complaint.
(a)
The complaint must [be received within] allege a violation that
occurred not more than one year [of the date of the alleged violation,
except that the one-year limitation shall not apply upon a finding that:
(1)
. . .
(2)
the complainant is requesting compensatory services for a violation that
occurred not more than three years prior to the date that the written complaint,
under the procedures described in this subdivision, is received.] prior to
the date that the State complaint is received.
(iv)
. . .
(v)
The party filing the State complaint must forward a copy of the State
complaint to the school district or public agency serving the student at the
same time the party files the State complaint with the State Education
Department.
(vi)
The school district, or public agency when appropriate, must provide a
procedural safeguards notice to the parent filing the State complaint upon
receipt of the parent’s first State complaint in a school
year.
(2)
Complaint process. Upon
receipt of a complaint the State Education Department:
(i)
. . .
(ii)
may require a school district or other public agency to submit a
written reply to the complaint[;] which could include, at the discretion of
the school district or other public agency, a proposal to resolve the complaint
or notification to the Department that the parent who has filed the State
complaint and the school district or other public agency have agreed to
voluntarily engage in mediation;
(iii)
. . .
(iv)
. . .
(v)
. . .
(vi)
shall issue the decision in subparagraph (v) of this paragraph within 60
days of receipt of the complaint except:
(1)
where exceptional circumstances exist with respect to a particular
complaint or
(2)
when the parent and school district or other public agency involved agree
to extend the time to engage in mediation pursuant to 200.5(h) of this
Part;
(vii) .
. .
(viii) . .
.
(3)
. . .
(4)
. . .
(m)
Student’s Status During Proceedings. (1) .
. .
(2)
. . .
(3)
If the complaint involves an application for initial services as a
preschool student with a disability from a child who is transitioning from early
intervention to preschool special education and related services, the school
district is not required to provide the early intervention services that the
child had been receiving. If the
child is found eligible for special education and related services as a
preschool student with a disability and the parent consents to the initial
provision of special education and related services consistent with section
200.16(h)(7) of this Part, then the school district must provide those special
education and related services that are not in dispute between the parent and
the school district.
(n)
Surrogate parents. (1) .
. .
(2)
. . .
(3)
Procedures for assigning surrogates. Assignment of a surrogate parent to
a particular student shall be made in accordance with the following procedures:
(i)
. . .
(ii)
. . .
(iii)
The committee on special education shall determine whether the student’s
parents can be identified or located, or whether the student is a ward of the
State, consistent with paragraph (1) of this subdivision. Where the student is known to the school
district to be a ward of the State, such reasonable efforts to discover the
whereabouts of a parent shall include consultation with the local social
services district or other agency responsible for the care of the student. The determination of the need for a
surrogate parent shall be completed within a reasonable time following the
receipt of a referral for an initial evaluation, reevaluation or services. If the committee on special education
finds that there is a need for a surrogate parent, a surrogate parent who meets
the qualifications identified in paragraph (2) of this section shall be selected
from the list approved by the board of education, except as otherwise provided
in subparagraph (v) [or (vi)] through (vii) of this paragraph, within 10
business days of the date of the determination by the committee of the need for
the surrogate parent.
(iv)
. . .
(v)
. . .
(vi)
. . .
(vii)
Unaccompanied homeless youth.
In the case of a child who is an unaccompanied homeless youth,
appropriate staff of emergency shelters, transitional shelters, independent
living programs and street outreach programs may be appointed as temporary
surrogate parents without regard to paragraph (2) of this section, until a
surrogate can be appointed that meets the appropriate
qualifications.
8.
Section 200.6 of the Regulations of the Commissioner of Education is amended, effective
July
19, 2007, as
follows:
§200.6 Continuum of
services.
(a)
. . .
(b)
. . .
(c)
. . .
(d)
Consultant teacher services. Consultant teacher services, as defined
in section 200.1 (m) of this Part, shall be for the purpose of providing
direct and/or indirect services to students with disabilities [enrolled in]
who attend regular education classes, including career and technical
education classes, and/or to such students’ regular education teachers.
Such services shall be recommended by the committee on special education to meet
specific needs of such students and [shall be included in] the student's
individualized education program (IEP) shall indicate the regular education
classes in which the student will receive consultant teacher services.
Consultant teacher services shall be provided in accordance with the following
provisions:
(1) . .
.
(2)
Each student with a disability requiring consultant teacher services
shall receive direct and/or indirect services consistent with the student's IEP
for a minimum of two hours each week, except that the committee on special
education may recommend that a student with a disability who also needs resource
room services in addition to direct consultant teacher services, may receive a
combination of such services consistent with the student’s IEP for not less than
three hours each week.
(3)
. . .
(e)
. . .
(f)
Resource room programs. Resource room programs shall be for the purpose
of supplementing the regular or special classroom instruction of students with
disabilities who are in need of such supplemental programs.
(1)
Each student with a disability requiring a resource room program shall
receive not less than three hours of instruction per week in such program
except that the committee on special education may recommend that for a student
with a disability who also needs direct consultant teacher services in addition
to resource room services may receive a combination of such services consistent
with the student’s IEP for not less than three hours per week.
(2)
. . .
(3)
. . .
(4) . .
.
(5)
. . .
(6)
. . .
(g)
Integrated co-teaching services.
Integrated co-teaching services means the provision of specially designed
instruction and academic instruction provided to a group of students with
disabilities in a general education classroom.
(i)
In accordance with the students’ individual needs as recommended on their
IEPs, the number of students with disabilities shall not exceed 12 or comprise
more than one-third of the students of the total class
enrollment.
(ii)
School personnel assigned to each class shall minimally include a special
education teacher and a general education teacher.
(iii)
Additional personnel, including supplementary school personnel, assigned
to such classes by the district, may not serve as the special education teacher
pursuant to subparagraph (ii) of this paragraph.
[(g)](h) . . .
[(h)](i) . .
.
[(i)](j) In-state or
out-of-state private schools. (1) State assistance for instruction of public
school students placed in approved private schools. An application by a board of
education for State reimbursement pursuant to section 4405 of the Education Law
for a student in an in-state or out-of-state private school shall be approved by
the commissioner provided that:
(i)
. . .
(ii)
. . .
(iii)
The committee on special education has certified that the student is of
school-age and has a disability or combination of disabilities, and has further
documented that the nature or severity of the student's disability is such that
appropriate public facilities for instruction are not available. This
documentation shall include, but need not be limited to:
(a)
. . .
(b)
documentation of all efforts to enable the student to benefit from
instruction in less restrictive settings using support services and
supplementary aids and special education services as set forth in subdivisions
(d), (e), (f) [and] , (g) and (h) of this section, and/or for
those services not used, a statement of reasons why such services were not
recommended;
(c)
. . .
(d)
. . .
(e)
. . .
(f)
. . .
(iv)
. . .
(2)
. . .
(3)
. . .
(4)
Implementation of placement. (i) It shall be the duty of the local board
of education to implement a board-approved committee on special education
recommendation for placement in an approved private school within the time
prescribed by section [200.4(d)] 200.4(e) of this Part.
(ii)
Neither the filing of an application or revised application for
reimbursement, nor the filing of a request for review, shall be deemed to
relieve the board of education of its responsibility to provide appropriate
special programs and services within 60 school days of receipt of the
recommendation of its committee on special education.
(5)
. . .
[(j)](k) Twelve-month
special service and/or program. (1) Eligibility of students for 12-month special
services and/or programs. Students shall be considered for 12-month special
services and/or programs in accordance with their need to prevent substantial
regression, if they are:
(i)
students whose management needs are determined to be highly intensive and
require a high degree of individualized attention and intervention who are
placed in classes in accordance with subparagraph [(g)(4)(ii)] (h)(4)(ii)
of this section;
(ii)
students with severe multiple disabilities, whose programs consist
primarily of habilitation and treatment and are placed in special classes in
accordance with subparagraph [(g)(4)(iii)] (h)(4)(iii) of this section;
(iii)
. . .
(iv)
. . .
(v)
. . .
(2)
. . .
(3)
. . .
[(k)](l) .
. .
[(l)](m) Levels of
service. (1) The percent of each instructional school day during which a student
is provided any one or combination of the special education programs and
services shall be in keeping with the unique needs of the student and the
standards established in subdivisions (a), (b), (c), (d), (e), (f), (g), (h)
[and] ,(i) and (j) of this section.
(2)
. . .
(3)
. . .
[(m)](n) . .
.
9.
Paragraph (3) of subdivision (b) of section 200.7 of the Regulations of
the Commissioner of Education is amended July
19, 2007, as
follows:
(3)
[School conduct and discipline] Code of conduct. An approved private school, a
State-operated school, and a State-supported school shall develop a [school
conduct and discipline] code of conduct policy. The content of such policy shall be
consistent with the provisions of section 100.2(l)(1)(i)(a)-(d), (f)-(g) of this
Title. The discipline of students
with disabilities attending any school governed by this section shall be
consistent with Part 201 of this Title.
10.
Paragraph (2) of subdivision (c)
of section 200.8 of the Regulations of the Commissioner of Education is
amended July
19, 2007, as follows:
(2)
for services provided to a preschool student with a disability on or
after September 1, 1989, payment by the county or city for such services shall
be paid at least quarterly, pursuant to the provisions of section 4410 of the
Education Law, upon vouchers presented by an approved provider which has
contracted with the municipality to provide those services. Upon receipt of the form provided by the
committee pursuant to section [200.16(c)(7)] 200.16(d)(4) of this Part,
the appropriate municipality in which the preschool student resides shall review
and, if complete, shall sign the form, and shall send one copy to the department
for approval and one to the approved evaluator. A municipality shall not, as a
condition of approval of such claims for reimbursement, require any additional
information other that the information required to be included on such form.
Such vouchers shall be audited in the same manner as other claims against the
municipality.
11. Clause
(c) of subparagraph (ix) of paragraph (2) of subdivision (f) of section 200.9
of the Regulations of the Commissioner
of Education is amended, effective July
19, 2007, as follows:
(c)
Rates for the certified special education teacher providing special
education itinerant services shall be published as half hour rates and billing
by providers to municipalities must be done in half hour blocks of time.
Billable time includes time spent providing direct and/or indirect special
education itinerant services as defined in section [200.16(h)(3)(ii)]
200.16(i)(3)(ii) of this Part in accordance with the student's
individualized education program (IEP). The difference between the total number
of hours employed in the special education itinerant teacher's standard work
week minus the hours of direct and/or indirect special education itinerant
service hours must be spent on required functions. Such functions include but
are not limited to: coordination of
service when both special education itinerant services and related services are
provided to a student pursuant to section 4410(1)(j) of the Education Law;
preparation for and attendance at committee on preschool special education
meetings; conferencing with the student's parents; classroom observation; and/or
travel for the express purpose of such functions as stated above. For the
purpose of this subparagraph, parent conferencing may include parent education
for the purpose of enabling parents to perform appropriate follow-up activities
at home. Billable time shall not be less than 66 percent or more than 72 percent
of any special education itinerant teacher's total employment hours. Providers
shall maintain adequate records to document direct and/or indirect service hours
provided as well as time spent on all other activities related to each student
served.
12.
Subdivisions
(a) and (b) of section 200.13 of the Regulations of the Commissioner of Education are
amended, effective July 19, 2007, as follows:
(a) The functioning
levels of students with autism, based upon the criteria set forth in section
[200.6 (g)(2)] 200.6(h)(2) of this Part, shall govern their individual or
small group instruction.
(1)
. . .
(2)
. . .
(3)
The class size for such students shall be determined in accordance with
section [200.6 (f) and (g)] 200.6(f) and (h) of this Part, provided that
the class size of special classrooms composed entirely of students with autism
shall be in accordance with section [200.6 (g)(4)(ii)(a)] 200.6(h)(4)(ii)(a) of
this Part.
(4)
. . .
(5)
. . .
(6)
. . .
(b) The length of the
school day for students with autism shall be that set forth in section 175.5 of
this [Chapter] Title.
13.
Subdivision
(f) of section 200.14 of the Regulations
of the Commissioner of Education is amended, effective July 19, 2007, as
follows:
(f)
Grouping for instruction. Students with disabilities enrolled in day
treatment programs may be grouped for instruction based on similarity of
individual mental health needs, when such needs prevent the student from
benefiting from instructional groupings pursuant to section [200.6 (g)]
200.6(h) of this Part, as determined by the professional staff of the day
treatment program.
14.
Subparagraph (iv) of paragraph (1) of subdivision (b) of section 200.16
of the Regulations of the Commissioner of Education is amended, effective
July 19, 2007, as follows:
(iv)
A committee chairperson who receives a referral shall immediately notify
the parent pursuant to paragraphs [(g)] (h) (1) and (2) of this section
that a referral has been received and shall request consent for evaluation of
the preschool student.
15.
Subparagraph (i) of paragraph (2) and paragraphs (3) and (9) of
subdivision (h) of section 200.16 of the Regulations of the Commissioner of
Education are amended, effective July 19, 2007, as
follows:
(i)
include a list containing a description of each preschool program which
has been approved by the commissioner to provide evaluations, and is located
within the county in which the preschool student resides and adjoining counties,
or, for students residing in the City of New York, within the City of New York
and adjoining counties, and the procedures which the parent should follow to
select [a] an available program to conduct [an] a timely
evaluation.
(3)
The procedural safeguards notice shall be provided to the parent in
accordance with section 200.5(f) of this Part. [In addition to the requirements
of section 200.5(f)(4) of this Part, the] The procedural safeguards
notice shall also:
(i)
. .
.
(ii) . .
.
(iii) . .
.
(iv)
. .
.
(9)
Impartial due process hearings. Impartial due process hearings shall be
conducted in accordance with section 200.5 (j) of this Part, provided that the
decision of the impartial hearing officer shall be rendered, in accordance with
section 4410 of the Education Law, not later than 30 days after [the receipt by
the board of a request for a hearing] the time period pursuant to section
200.5(j)(3)(iii) of this Part or after the initiation of such hearing by the
board.
16.
Subdivision (i) of section 200.16 of the Regulations of the Commissioner
of Education is amended, effective July 19, 2007, as
follows:
(i)
Continuum of services. (1)
. .
.
(2)
. .
.
(3)
Special education programs and services. Special education programs and
services shall be provided as follows:
(i)
. .
.
(ii)
. .
.
(iii)
Special classes shall be provided on a half-day or full-day basis
pursuant to section 200.1(p), (q) and (v) of this part and in accordance with
section [200.6 (g)(2) and (3)] 200.6(h)(2) and (3) or section
200.9(f)(2)(x) of this Part and shall assure that:
(a)
. . .
(b)
the maximum class size shall not exceed 12 preschool students with at
least one teacher and one or more supplementary school personnel assigned to
each class[; and]. (1) For the
city school district of the city of New York, if a committee on preschool
special education recommends a preschool student to an approved program which
has no space available in the specific special class which will meet the
student’s unique needs as recommended on the IEP, the approved program may
temporarily increase the enrollment of a class up to a maximum of 13 preschool
students for the remainder of the school year, by a procedure to be established
by the Commissioner, to ensure that the student receives a free appropriate
public education. If the attendance
during the instructional time exceeds 12 students, another staff member shall be
assigned to the class. Other staff
members may include related service providers and/or supplementary school
personnel.
(c)
. . .
(iv)
in-state residential special education programs and services shall be
provided to each preschool student with a disability for whom such services have
been recommended for a minimum of five hours per day, five days per week.
Placement in such residential programs shall be approved by the commissioner in
accordance with section [200.6 (i)] 200.6(j) of this Part;
(v)
. .
.
(vi)
. .
.
(vii)
. .
.
17. Subdivisions (e), (i),
(k) and (n) of Section 201.2 of the Regulations of the Commissioner of Education
are amended, effective July 19, 2007, as follows:
(e)
Disciplinary change in placement means a suspension or removal from a
student's current educational placement that is either:
(1)
. . .
(2)
for a period of 10 consecutive days or less if the student is subjected
to a series of suspensions or removals that constitute a pattern because they
cumulate to more than 10 school days in a school year; because the student’s
behavior is substantially similar to the student’s behavior in previous
incidents that resulted in the series of removals; and because of such
additional factors as the length of each suspension or removal, the total
amount of time the student [is] has been removed and the proximity of the
suspensions or removals to one another. The school district determines on a
case-by-case basis whether a pattern of removals constitutes a change of
placement. This determination is
subject to review through due process and judicial
proceedings.
(i)
Illegal drug means a controlled substance [other than a substance],
but does not include a controlled substance legally possessed or used under
the supervision of a licensed health-care professional or a substance that is
otherwise legally possessed or used under the authority of the Controlled
Substances Act or under any other provision of Federal law.
(k)
Interim alternative educational setting or IAES means a temporary
educational placement [determined by the committee on special education], other
than the student's current placement at the time the behavior precipitating the
IAES placement occurred. A student who is placed in an IAES
shall:
(1)
. . .
(2)
. . .
(n)
Student presumed to have a disability for discipline purposes means a
student who the school district is deemed to have knowledge was a student with a
disability before the behavior that precipitated disciplinary action under the
criteria in [subsection (k)(8) of section 1415 of title 20 of the United States
Code (United States Code, 1994 edition, Supplement III, Volume 2; Superintendent
of Documents, U. S. Government Printing Office, Washington, D.C. 20402-9328:
1998 - available at the Office of Vocational and Educational Services for
Individuals with Disabilities, Room 1624, One Commerce Plaza, Albany, New York
12234) and the Federal regulations implementing such statute, as set forth in]
section [201.5] 201.5(b) of this Part.
18. Section
201.3 of the Regulations of the Commissioner of Education is repealed and a new
section 201.3 is added, effective July 19, 2007, as
follows:
§201.3 CSE
responsibilities for functional behavioral assessments and behavioral
intervention plans. If the
manifestation team pursuant to 201.4 of this Part, makes the determination that
the conduct subject to the disciplinary action was a manifestation of the
student’s disability, the CSE must either:
(a)
conduct a functional behavioral assessment, unless the school district
had conducted a functional behavioral assessment before the behavior that
resulted in the change of placement occurred, and implement a behavioral
intervention plan for the student; or
(b)
if a behavioral intervention plan has already been developed, review the
behavioral intervention plan and modify it as necessary to address the
behavior.
19.
Subdivisions (d) and (e) of section 201.4 of the Regulations of the
Commissioner of Education are amended, effective July 19, 2007, as
follows:
(d)
Determination. (1) [If the
manifestation team determines that] The conduct must be determined to be a
manifestation of the student’s disability if the manifestation team determines
that a condition in either paragraph (c)(1) or (2) of this section [is
applicable for the student, the behavior shall be considered a manifestation of
the student's disability] was met.
(2)
If the manifestation team determines that the conduct was a manifestation
of the student’s disability, the CSE shall:
(i)
conduct a functional behavioral assessment and implement a behavioral
intervention plan for such student in accordance with section [(3)] 201.3
of this Part; and
(ii)
. . .
(e)
Deficiencies in IEP [or placement.] If[, in the review of subdivisions
(b) and (c) of this section, the school identifies deficiencies in the student’s
IEP or placement or in their implementation, it] the manifestation team
determines the conduct in question was the direct result of the school
district’s failure to implement the IEP, the school district must take
immediate steps to remedy those deficiencies.
20.
Subdivision (a) and paragraph (3)
of subdivision (b) of section 201.5 of the Regulations of the Commissioner of
Education are amended, effective July 19, 2007, as
follows:
(a)
General provision. The parent of a student who has violated any rule or
code of conduct of the school district and was not identified as a student with
a disability at the time of such behavior may assert any of the protections set
forth in [34 C.F.R. Part 300 (Code of Federal Regulations, 1999 edition,
Superintendent of Documents, U.S. Government Printing Office, Washington, DC
20402-9328: 1999 - available at the Office of Vocational and Educational
Services for Individuals with Disabilities, Room 1624, One Commerce Plaza,
Albany, NY 12234-9328) or in] this Part, if the school district is deemed to
have had knowledge as determined in accordance with subdivision (b) of this
section, that the student was a student with a disability before the behavior
that precipitated the disciplinary action occurred. Where the school district is
deemed to have had knowledge that the student was a student with a disability
before such behavior occurred, such student is a "student presumed to have a
disability for discipline purposes."
(3) a
teacher of the student, or other personnel of the school district, has expressed
specific concerns about a pattern
of behavior demonstrated by the student, directly to
the director of special education of the school district or to other supervisory personnel of the school
district [in accordance with the district's established child find or special
education referral system].
21.
Subdivision (b) section 201.6 of
the Regulations of the Commissioner of Education is amended, effective July 19,
2007, as follows:
(b)
An expedited evaluation shall be completed no later than 15 school days
after receipt of [the request] parent consent for evaluation, and shall
be conducted in accordance with the procedural requirements of sections 200.4
and 200.5 of this Title. The CSE shall make a determination of eligibility of
such student in a meeting held no later than five school days after completion
of the expedited evaluation.
22.
Subparagraph (i) of paragraph (1)
of subdivision (e) and subdivision (f) of section 201.7 of the Regulations of
the Commissioner of Education are amended, effective July 19, 2007, as
follows:
(i)
has inflicted serious bodily injury, as defined in section [201.1(m)]
201.2(m) of this Part, upon another person while at school, on school
premises or at a school function under the jurisdiction of the educational
agency;
(f)
School personnel may consider any unique circumstances on a case-by-case
basis when determining whether [to order] a change in placement [under]
consistent with the other requirements of this Part is appropriate
for a student with a disability who violates a school district’s code of
[student] conduct.
23. Section
201.8 of the Regulations of the
Commissioner of Education is amended, effective July 19, 2007, as
follows:
§201.8 Authority of
impartial hearing officer to order a change in placement to an IAES in a
dangerous situation.
(a)
An impartial hearing officer appointed pursuant to Education Law section
4404(1), in an expedited due process hearing conducted pursuant to section
201.11 of this Part, may order a change in placement of a student with a
disability to an appropriate interim alternative educational setting (IAES) for
not more than 45 school days, if the hearing officer determines that
maintaining the current placement of the student is substantially likely to
result in injury to the student or others. [:
(1)
determines that the school district has demonstrated by substantial
evidence that maintaining the current placement of the student is substantially
likely to result in injury to the student or to others;
(2)
considers the appropriateness of student's current placement;
(3)
considers whether the school district has made reasonable efforts to
minimize the risk of harm in the student's current placement, including the use
of supplementary aids and services; and
(4)
determines that the IAES proposed by school personnel meets the
requirements of 34 C.F.R. section 300.522(b) (Code of Federal Regulations, 1999
edition, Superintendent of Documents, U.S. Government Printing Office,
Washington, DC 20402-9328: 1999 - available at the Office of Vocational and
Educational Services for Individuals with Disabilities, Room 1624, One Commerce
Plaza, Albany, NY 12234) as set forth in section 201.2(k) of this Part.
(b)
For purposes of this section, "substantial evidence" shall mean beyond a
preponderance of the evidence.
(c)
An IAES ordered pursuant to this section shall be determined by the CSE.]
[(d)](b) The procedures established in this section may be
repeated[, as
necessary] if the school district believes that returning the student to the
original placement is substantially likely to result in injury to the student or
others.
[(e)](c) . .
.
[(f)](d) .
. .
24.
Paragraph (2) of subdivision (c) of section 201.9 of the Regulations of the Commissioner of Education is
amended, effective July 19, 2007, as follows:
(2)
Upon a determination by the manifestation team that the behavior of a
student with a disability was not a manifestation of the student's disability,
such student may be disciplined in the same manner as a nondisabled student,
except that such student shall continue to receive services in accordance with
[this] section 201.10 of this Part. Upon receipt of notice of such
determination, the superintendent or hearing officer in the superintendent’s
hearing shall proceed with the penalty phase of the hearing. If the
manifestation team determines that the behavior was a manifestation of the
student's disability, the superintendent or hearing officer in the
superintendent’s hearing shall dismiss the superintendent's hearing, except as
otherwise provided in paragraph (3) of this subdivision.
25.
Subdivision (e) of section 201.10
of the Regulations of the Commissioner of Education is repealed, effective July
19, 2007, and subdivisions
(a), (c) and (d) of section 201.10 of the Regulations of the Commissioner of Education are
amended, effective July 19, 2007, as follows:
(a)
During any period of suspension, a student with a disability shall be
provided services to the extent required under [the provisions of the
Individuals with Disabilities Education Act (20 U.S.C. sections 1400 et seq.),
34 C.F.R. section 300.121 (United States Code, 1994 edition, supplement III,
volume 2, 1998; Code of Federal Regulations, 1999 edition; Superintendent of
Documents, U.S. Government Printing Office, Washington, DC 20402-9328: 1999 -
available at the Office of Vocational and Educational Services for Individuals
with Disabilities, Room 1624, One Commerce Plaza, Albany, NY 12234)] this
section and paragraph (e) of subdivision 3 of section 3214 of the Education
Law. Nothing in this section shall be construed to confer a greater right to
services than is required under Education Law, section 3214(3)(e) and [such]
Federal law and regulations.
(c)
During subsequent suspensions or removals for periods of 10 consecutive
school days or less that in the aggregate total more than 10 school days in a
school year but do not constitute a disciplinary change in placement, regardless
of the manifestation determination, students with disabilities shall be provided
with services necessary to enable the student to continue to participate in the
general education curriculum and to
progress toward meeting the goals set out in the student's IEP and to receive,
as appropriate, a functional behavioral assessment, behavioral intervention
services and modifications that are designed to address the behavior violation
so it does not recur. [The CSE shall determine the services to be provided to
the student.] School personnel, in consultation with at least one of the
student’s teachers, shall determine the extent to which services are needed, so
as to enable the student to continue to participate in the general education
curriculum, although in another setting, and to progress in meeting the goals
set out in the student’s IEP.
(d)
During suspensions or other disciplinary removals, including
suspensions or removals pursuant to section 201.7(e) of this Part, for
periods in excess of 10 school days in a school year which constitute a
disciplinary change in placement [for behavior], regardless of the
manifestation determination, students with disabilities shall be provided
with services[, as determined by the CSE,] necessary to enable the student to
continue to participate in the general education curriculum, to progress toward
meeting the goals set out in the student's IEP, and to receive, as appropriate
pursuant to section 201.3 of this Part, a functional behavioral
assessment, behavioral intervention services and modifications that are designed
to address the behavior violation so it does not recur. The IAES and services shall be
determined by the CSE.
26. Section
201.11 of the Regulations of the Commissioner of Education is amended, effective
July 19, 2007, as follows:
§201.11 Expedited due
process hearings.
(a)
An expedited due process hearing shall be conducted pursuant to this Part
under the following circumstances:
(1)
. . .
(2)
. . .
(3)
the parent requests a hearing from a determination that the student's
behavior was not a manifestation of the student's disability. [In reviewing a
decision with respect to the manifestation determination, the hearing officer
shall determine whether the school district has demonstrated that the student's
behavior was not a manifestation of the student's disability consistent with the
requirements of section 201.4 of this Part]; or
(4)
The parent requests a hearing relating to any decision regarding
placement under [34 C.F.R. sections 300.520-528 or] section 201.7 of this
Part, including but not limited to any decision to place the student in an IAES.
(b)
An expedited due process hearing shall be conducted in accordance with
the procedures specified in section 200.5(j) of this [Part] Title, except
as follows:
[(1) Any
party to the hearing shall have the right to prohibit the introduction of any
evidence at the hearing that has not been disclosed to that party at least three
business days before the hearing.
(2)
At least three business days prior to the hearing, each party shall
disclose to all other parties all evaluations completed as of that date and
recommendations based on the offering party's evaluations that the party intends
to use at the hearing.
(c)
An expedited due process hearing shall be completed within 15 business
days of receipt of the request for a hearing, provided that the impartial
hearing officer may grant specific extensions of such time period at the request
of either the school district or the parent. The impartial hearing officer shall mail
a copy of written, or at the option of the parents, electronic findings of fact
and the decision to the parents, to the board of education and to the Office of
Vocational and Educational Services for Individuals with Disabilities (VESID) of
the State Education Department within five business days after the last hearing
date, but in no event later than 45 calendar days after receipt of the request
for a hearing, without exceptions or extensions.]
(1)
Upon receipt of or filing of a due process complaint notice for an
expedited hearing, the board of education shall arrange for an impartial hearing
and the appointment of an impartial hearing officer using the list in accordance
with the rotational selection process established in section 200.2(e)(l) of this
Title and the administrative procedures established by the board of education
pursuant to section 200.2(b)(9) of this Title.
(2)
The impartial officer may not accept appointment unless available to hold
the hearing and render the decision within the time period for expedited
hearings pursuant to paragraph (3) of this
subdivision.
(3)
The school district shall arrange the expedited due process hearing
according to the following time period, unless the parent and school district
agree in writing to waive the resolution meeting or agree to use
mediation:
(i)
A resolution meeting shall occur within seven days of receiving notice of
the due process complaint.
(ii)
The expedited due process hearing may proceed unless the matter has been
resolved to the satisfaction of both parties within 15 days of receipt of the
due process complaint.
(iii)
The expedited due process hearing shall occur within 20 school days of
the date the complaint requesting the hearing is
filed.
(iv)
The impartial hearing officer shall make a determination within 10 school
days after the hearing.
(4)
No extension to an expedited impartial hearing timeline may be
granted.
(5)
The impartial hearing officer shall mail a copy of the written, or at the
option of the parents, electronic findings of fact and the decision to the
parents, to the board of education and to the Office of Vocational and
Educational Services for Individuals with Disabilities Education (VESID) of the
New York State Education Department within 10 school days after the
hearing.
[(d)](c) . .
.
[(e) If a
student is placed in an IAES under the circumstances described in this
subdivision, and school personnel propose to change the student's placement
after expiration of the IAES, during the pendency of any proceeding to challenge
the proposed change in placement, the student shall remain in his or her current
educational placement (the placement prior to removal to the IAES), except where
the student is again placed in an IAES by an impartial hearing officer pursuant
to section 201.8 of this Part in an expedited due process hearing where the
school district maintains that it is dangerous for the student to remain in his
or her current educational placement.]
(d)
When an expedited due process hearing has been requested because of a
disciplinary change in placement, the manifestation determination or because the
school district believes that maintaining the student in the current placement
is likely to result in injury to the student or others, the student shall remain
in the IAES pending the decision of the impartial hearing officer or until the
expiration of the period of removal, whichever occurs first, unless the parent
and the school district agree otherwise.
Substantive Amendment to Parts 100,
120, 200 and 201 to Conform
to Individuals with Disabilities
Education Act (IDEA) to Propose Regulatory Reform
|
Regulations of the
Commissioner of
Education |
Topic |
Summary |
Federal
Citation |
|
I.
Definitions | |||
|
§120.6 |
Definition of highly qualified
special education teachers |
Incorporates reference to
requirements for highly qualified special education
teachers |
§300.18 |
|
§200.1(m) |
Definition of consultant
teacher services |
Clarifies that direct
consultant teacher services are provided to a student with a disability in
the student’s regular education class |
|
|
§200.1(ii) |
Definition of
parent |
Clarifies that the guardian is
“legally appointed” and authorized to act as the parent or authorized to
make educational decisions for the child |
§300.30 |
|
§200.1(qq) |
Definition of related
services |
Adds exceptions for surgically
implanted devices |
§300.34(b) |
|
§200.1(bbb) |
Definition of supplementary
aids and services |
Clarifies that supplementary
aids and services may be provided in extracurricular and nonacademic
settings |
§300.42 |
|
§
200.1(nnn) |
Adds
definition of interpreting services |
Defines interpreting services
for students who are deaf and deaf-blind |
§300.34 |
|
II. Board of Education
Responsibilities | |||
|
§200.2(b)(1) |
Board
of Education’s (BOE) responsibility to ensure that students with
disabilities have opportunities to participate in nonacademic and
extracurricular activities |
Adds examples of nonacademic
and extracurricular activities
|
§300.107 |
|
§200.2(b)(2) |
BOE’s
responsibility to ensure timely evaluations and placements for preschool
children with disabilities |
Clarifies, consistent with
§4410 of the Education Law, that it is the BOE’s responsibility to ensure
timely evaluations and placements for preschool children with
disabilities |
|
|
§200.2(b)(7) |
BOE’s
responsibility for implementing schoolwide approaches to remediate a
student’s performance prior to referral for special
education |
References proposed section
100.2(ii) regarding use of response-to- intervention
programs |
§§300.307–300.311 |
|
§200.2(b)(12) |
BOE’s
responsibility to recruit, hire, train and retain highly qualified special
education teachers |
Adds the IDEA requirements for
highly qualified special education teachers to section 120.6 (NCLB
regulations) of the Commissioner’s Regulations |
§300.18 |
|
§200.2(b)(15) |
BOE’s
responsibility to ensure public reporting on revisions to policies related
to disproportionality |
Ensures that the school
district has practices and procedures to publicly report on revisions to
its policies, procedures and/or practices upon a finding by the Department
that the district has inappropriate policies, procedures or practices
resulting in a significant disproportionality by race/ethnicity in the
suspension, identification, classification and/or placement of students
with disabilities |
§300.173 §300.646 |
|
III. Evaluations, Eligibility and
Individualized Education Programs | |||
|
§200.4(b)(1)(iv) |
Requirements for initial
evaluation |
Adds that student must be
observed in the student’s learning environment or, in the case of a
student of less than school-age or out of school, an environment
appropriate for a student of that age, to document the student’s academic
performance and behavior in the areas of
difficulty |
§
300.310 |
|
§200.4(b)(6)(ii) |
Individual evaluation and
reevaluation |
Repeals requirement that if an
assessment is not conducted under standard conditions, that a description
of the extent to which it varied from standard conditions (e.g., the
qualifications of the person administering the test, or the method of test
administration) must be included in the evaluation
report |
§300.303(c) |
|
§200.4(b)(6)(xii) |
Individual evaluation and
reevaluation |
Adds that a copy of the
evaluation report and the documentation of determination of eligibility
must be provided at no cost to the parent |
§300.306(a)(2) |
|
§200.4(c)(1) |
Eligibility
determinations |
Requires that information
obtained from all evaluation sources is documented and carefully
considered |
§300.306(a)(2) |
|
§200.4(d)(2) |
Individualized Education
Programs (IEPs) |
Adds a requirement that all
IEPs developed on or after July 1, 2008, be on a form prescribed by the
Commissioner
|
|
|
§200.4(d)(2)(iii)(a) |
IEPs-Measurable Annual
Goals |
Adds that IEPs must include
“academic and functional goals” |
§300.320(a)(2)(i) |
|
IV.
Consent | |||
|
§200.2(a)(7) |
Child
find and release of personally identifiable information for parentally
placed private school children. |
Adds that parent consent or
consent of a student 18 years or older is required before personally
identifiable information about the student is released between the school
district of location of the private school and the school district of
residence |
§300.622 |
|
§200.4(d)(4)(i)(b)
§200.4(d)(4)(i)(c) §200.4(h) |
IEPs:
Committee on Special Education (CSE) meetings to develop
recommendations |
Adds that parental consent, or
consent of a student 18 years of age or older, must be obtained
before: Ÿ personally identifiable
information is released to officials of participating agencies when a
student is determined to be at risk of a future placement in a residential
school; Ÿ inviting a representative of
any participating agency that is likely to be responsible for providing or
paying for transition services to a CSE meeting; and Ÿ a CSE provides evaluative
information and program recommendations for a student to a Family Court
judge, a probation department, a social services district, the Office of
Child and Family Services, or a preadmission certification committee
established pursuant to section 9.51(d) of the Mental Hygiene
Law |
§300.321(b) |
|
§200.4(a)(8) §200.5(b)(1)(i)(c) |
Evaluation of parentally
placed and home instructed students |
Adds that BOE may not pursue,
through due process, obtaining parental consent for evaluation for a
student parentally placed in a private school or home instructed (pursuant
to 100.10) |
§300.300(c)(4)(i) |
|
§200.5(b)(1) |
Consent |
Adds language consistent with
federal regulations to clarify that districts must take “reasonable
efforts” to obtain consent, as defined in section 200.1(l) and must
document their attempts to obtain parental
consent |
§300.300(a)(1)(iii)
§300.300(c)(2) |
|
§200.5(b)(1)(v) |
Consent |
Adds requirement for consent
to access a parent’s private and public insurance |
§300.154(d) |
|
§200.5(b)(3) |
Child
find |
Clarifies that a school
district is not required to use due process procedures when a parent
refuses to provide consent for an initial evaluation or
reevaluation |
§300.300(a)(3)(ii) |
|
§200.5(b)(5) |
Consent for ward of
state |
Adds “and consent for an
initial evaluation has been given by an individual appointed by the judge
to represent the child” after existing language “district is not required
to obtain informed consent for a ward of the State if the rights of the
parent have been subrogated by a judge” |
§300.300(a)(2)(iii) |
|
§200.5(b)(6) |
Consent |
Adds that if parental consent
for an initial evaluation has not been provided for a home-schooled or
parentally-placed private school student, the school district cannot use
due process to obtain parent consent and is not required to consider the
student as eligible for special education
services |
§300.300(d)(4)(i) and
(ii) |
|
V. Due
Process | |||
|
§200.5(a) |
Prior
written notice |
Adds that, effective July 1,
2008, prior written notice (notice of recommendation) shall be on the form
prescribed by the Commissioner |
|
|
§200.5(c)(1) |
Meeting
notice |
Adds that effective July 1,
2008, meeting notice shall be on the form prescribed by the
Commissioner |
|
|
§200.5(f)(3) |
Procedural safeguards
notice |
Adds language that procedural
safeguards notice must be given to the parent by the school district upon
receipt of first State complaint and upon a disciplinary change in
placement |
§300.504 §300.530(h) |
|
§200.5(f)(4) |
Requirements of procedural
safeguard notice |
The specific contents of the
procedural safeguards notice to be provided to parents have been removed,
since the notice must be on a form prescribed by the
Commissioner. |
§200.5(f)(1) |
|
§200.5(g) |
Independent Educational
Evaluations (IEE) |
Clarifies that parent may
obtain one IEE each time the district conducts an evaluation with which
the parent disagrees and that an IEE may be used by either party in an
impartial hearing |
§300.502 |
|
§200.5(h)(1)(iii) |
Mediation |
Adds that an individual who
serves as a mediator must not have a personal or professional interest
that conflicts with the person’s objectivity |
§300.506 |
|
§200.5(i)(3) |
Impartial hearings
|
Adds timeline for sufficiency
challenge of due process request (i.e., challenge that the due process
request notice includes the required information); and an exception to the
right to a sufficiency challenge for an expedited impartial
hearing |
§300.508 |
|
§200.5(j) |
Impartial
hearings |
Adds language to conform
regulations to federal regulations relating to the school district’s or
parent’s failure to participate in the resolution session and timelines
for resolution sessions and for commencement of the impartial
hearing |
§300.510 |
|
§200.5(j)(4) |
Agreements made outside of
hearing |
Adds that if parties reach
agreement during an impartial hearing, no hearing decision may be issued
incorporating the terms of such agreement |
§300.513 |
|
§200.5(j)(5)(i) |
Extension to hearing timeline
|
Clarifies that an IHO may
grant only one 30-day extension at a time to the hearing
timeline |
Clarification |
|
§200.5(l) |
State
complaint |
Amends to
add: Ÿ an organization or
individual, including from another state, may submit a State
complaint Ÿ the complaint must provide
student specific information, when appropriate Ÿ conforming timeline for
filing of complaint Ÿ new requirement that the
party filing the complaint forward a copy of the complaint to the school
district or public agency serving the child at the same time the party
files the complaint with the Department Ÿ the school district or public
agency must provide parent with procedural safeguards notice upon first
filing of a State complaint in a school year Ÿ the school district or public
agency has the discretion to develop a proposal to respond to the
complaint Ÿ the school district or public
agency and parent may engage in mediation and may extend the State
complaint time period to engage in mediation Repeals:
Ÿ exception to one-year
timeline if violation is continuing and when the complainant is requesting
compensatory services for a violation that occurred not more than three
years prior to the date of the complaint |
§300.509 §§300.151–300.153 |
|
§200.5(m) |
Student’s status during
proceedings |
Adds that the school district
is not required to provide Part C early intervention (EI) services as
child transfers from EI to initial services as a preschool student with a
disability. If eligible for
preschool services, services that are not in dispute must be
provided. |
§300.518 |
|
§200.5(n) |
Surrogate
parent |
Adds that staff from homeless
shelters may be temporarily appointed to act as surrogates for
unaccompanied homeless youth until another surrogate parent can be
appointed |
§300.519 |
|
VI. Special Education Continuum of
Services | |||
|
§200.6(d)
|
Consultant teacher
services |
Adds that the CSE may
recommend that a student with a disability who needs resource room
services in addition to direct consultant teacher services receive a
combination of such services consistent with the student’s IEP for not
less than three hours each week |
|
|
§200.6(f) |
Resource room programs |
Adds that the CSE may
recommend that a student with a disability who needs resource room
services in addition to direct consultant teacher services receive a
combination of such services consistent with the student’s IEP for not
less than three hours each week |
|
|
New
§200.6(g) |
Integrated co-teaching
services |
Adds
that “integrated co-teaching services” to the continuum of services and
defines this service to mean “the provision of specially designed
instruction and academic instruction provided to a group of students with
disabilities in a general education classroom” Ÿ provided that the number of
students with disabilities in the class must not exceed 12 or more than
one-third of the students of the total class enrollment; and Ÿ school personnel assigned to
each class must minimally include a special education teacher and a
general education teacher and that additional personnel, including
supplementary school personnel, assigned to such classes by the district,
may not serve as the special education teacher |
|
|
§200.16(i)(3)(iii) |
Preschool maximum
class size allowance for |
Authorizes preschool programs in New York City
that are at maximum enrollment to temporarily enroll an additional
preschool child, with the assignment of additional staff, when there is no
other appropriate program available to serve the
child |
|
|
VII. Learning
Disabilities | |||
|
§102(ii) |
Response to intervention
programs |
Provides that a school
district may establish a process to determine if a student responds to
scientific, research-based intervention in accordance with minimum
requirements |
§§300.307–300.311 |
|
§200.4(j) |
Additional procedures for
identifying students with learning
disabilities-Observation |
Adds procedures for
identifying students with learning disabilities, including referral,
individual evaluation, a process for determining eligibility, criteria for
determining the existence of a learning disability, and specific
documentation for the eligibility determination |
§§300.307–300.311 |
|
VIII.
Discipline | |||
|
§201.2(e)(2) |
Definitions |
Changes standards for when a
series of disciplinary removals may be determined to constitute a pattern
of removals; and provides that this determination is subject to due
process and judicial review |
§300.536 |
|
§201.2(i) |
Definitions |
Amends the definition of
illegal drug to conform to the federal definition |
§300.530 |
|
§201.3(a) |
Functional behavioral
assessments (FBAs) and behavioral intervention plans
(BIPs) |
Clarifies that when a
student’s behavior is determined to be related to his/her disability
(manifestation), the CSE must conduct a FBA (if one has not already
conducted) and implement a BIP.
If a BIP has already been developed, requires the CSE to review and
modify it as necessary.
Repeals language which required a review of the BIP if the student
had already been suspended 10 plus school days and is again removed, but
there is not a change in placement. |
§300.530 |
|
§201.8 |
Authority of an IHO |
Repeals the consideration an
IHO must make to remove a student to an interim alternative educational
setting (IAES) in situations when it is determined that maintaining the
current placement of the student is likely to result in injury to the
student or to others (dangerous situation) |
§300.530 and §300.532(b)
|
|
§201.10(c) |
Discipline-provision of
services during suspensions |
Identifies when school
personnel, in consultation with at least one of the child’s teachers,
determines the education services when a student with a disability is
suspended from school |
§300.530 |
|
§201.10(d) |
Discipline-provision of
services during suspension |
Identifies when the CSE must
determine the IAES and services |
§300.530(d) §300.531 |
|
§201.11(a)-(c) |
Discipline-expedited due
process hearings |
Amends procedures for
expedited hearings consistent with federal regulations, including the
timeline for an expedited hearing.
Adds that a student remains in an IAES during an expedited
impartial hearing. Clarifies
that there are no extensions may be granted for an expedited impartial
hearing. |
§300.532 |