December 2005

New Requirements for Special Education Programs and Services:  Amendments to State Regulations to Implement the Individuals with Disabilities Education Act of 2004

QUESTIONS AND ANSWERS

 

The following questions and answers reflect preliminary guidance on areas of the Commissioner's Regulations that were amended to conform to IDEA 2004.  This guidance is subject to revision based on the final federal regulations and guidance. 

Child find requirements

Parent

Alternative Means of Meeting Participation

Evaluations and Reevaluations

Learning disabilities

Individualized education programs

Parent consent

Procedural safeguards notice

Due process complaint notice

Resolution session

Impartial hearings

Discipline procedures for students with disabilities

 


Child find requirements 

1.       What steps must a school district take to fulfill its child find obligations for students with disabilities who are homeless?

 

At a minimum, school districts should identify the homeless shelters located in their school districts.  The school district liaison for homeless youth has a role to assist homeless youth who are suspected of having a disability in coordination with the CSE.

Parent 

2.       If a child is living with foster parents, must the CSE or CPSE invite the foster parents or the birth or adoptive parents or both to the CSE meeting?

 

The party who is the parent must be invited to a meeting of the CSE.  The birth or adoptive parent is always presumed to be the parent unless his or her rights have been terminated or subrogated by a judge.  Even if the foster parent is not acting as the parent, the foster parent is an individual with knowledge of the student's needs and should be considered a participant in the CSE or CPSE meeting.  However, school personnel should be aware of any confidentiality concerns between foster and birth and adoptive parents in determining who must or should participate in the meeting.

 

3.      Can a representative of an agency (such as a group home or child care institution) serve as a surrogate parent for a child under the care or education of that agency?

 

No.

Alternative Means of Meeting Participation

4.     When the parent and the school district agree to use alternative means of meeting participation (e.g., video conferences or conference calls), must the agreement be in writing?

 

     It is recommended that the school district/agency document that the parent agreed to use alternative means of meeting participation for the CSE or CPSE meeting.

Evaluations and Reevaluations 

5.       Do the amendments relating to the frequency of reevaluations affect a parent's right to obtain an independent educational evaluation (IEE) and request that the IEE be at public expense?

 

There have been no amendments relating to the parent's right to obtain an IEE.

 

6.       Can a school district consolidate a CSE or CPSE meeting to review the results of the reevaluation with the annual review meeting if the annual review meeting is not scheduled to occur for several months after the reevaluation is completed?

 

In making a determination to consolidate a reevaluation with an annual review meeting, the CSE or CPSE must consider the proximity of the two meetings to the date when the reevaluation is completed.  The CSE must conduct a timely review of the results of the reevaluation to consider necessary changes to a student’s eligibility and IEP.  A review of reevaluation information should not be delayed in order to consolidate it with an annual review meeting that is, for example, scheduled to occur months from the date the reevaluation is completed.  The CSE could, however, decide to consolidate the meetings by conducting the annual review earlier, i.e., upon completion of the reevaluation.

 

7.       Is a classroom-based observation a requirement for a reevaluation?

 

An initial evaluation requires an observation of the student in the current educational placement.  The CSE and other qualified staff may determine that a classroom-based observation should be a component of the student's reevaluation.

 

8.       Can the school district delay admitting a student with a disability who transfers from another school district outside the State or within the State while it arranges for the CSE/CPSE meeting? 

 

No.  The student must be admitted to school and provided IEP services comparable to those on the student's previous IEP, unless the school district and parent agree otherwise.

 

9.       Have the timelines for completing a reevaluation been changed?

 

No.

 

10.   How does the 60-calendar day timeline to complete the initial evaluation and eligibility determination for a school age student affect the 60 school day timeline for IEP implementation?

 

The CSE must complete the initial evaluation and conduct the meeting to determine a school-age student's eligibility for special education within 60 calendar days of receipt of the parent's consent for the initial evaluation.  The school district must ensure that the programs and services are provided to the student not later than 60 school days of receipt of consent for the initial evaluation, or as otherwise allowed in regulation.  However, federal regulations require that the IEP of a student be implemented as soon as possible following the meeting to determine eligibility and develop the IEP for the student. 

 

11.   Does the 60-calendar day timeline to complete the initial evaluation and eligibility determination apply to preschool students?

 

No.  State law and regulations require the CPSE to provide a recommendation to the board of education within 30 school days of the date of the receipt of consent.

Learning disabilities 

12.   Can a school district use more than one criterion (e.g., a response-to-intervention process and a discrepancy criteria) to determine if a student has a learning disability?

 

The regulations would not preclude a school district from applying more than one criterion for the determination of whether a student has a learning disability.  However, school districts should consider the research basis for using discrepancy criteria in relation to particular learning disabilities.  Under adoption of final federal regulations, the State will develop criteria for the determination of learning disabilities. 

 

13.   How would use of a response-to-intervention criterion affect the 60-calendar day timeline to complete the initial evaluation and eligibility determination?

 

Until further guidance is available based on the final federal regulations, school districts should ensure that the initial evaluations of students suspected of having a learning disability are completed within the 60 calendar-day time period.  If a school uses a response to intervention criterion as part of its evaluation process, it may use the procedures in section 200.4(a) of the Commissioner’s Regulations to discuss the referral with the parent to provide additional time for the determination of whether the student is responding to research-based instruction.

Individualized education programs 

14.   What is meant by "measurable annual goals on the IEP?" 

Annual goals are statements that identify what knowledge, skills and/or behaviors a student is expected to be able to demonstrate within the period of time beginning with the time the IEP is implemented until the next scheduled review.  Annual goals must be identified that meet the student’s needs, as identified in the present levels of performance.  To be measurable, an annual goal should describe the skill, behavior or knowledge the student will demonstrate and the extent to which it will be demonstrated. Terms such as "will improve…," "will increase…." and "will decrease…." are not specific enough to describe what it is the student is expected to be able to do in one year. To be measurable, a behavior must be observable or able to be counted. 

15.   If the CSE does not determine if a student is eligible to take NYSAA until the year before the State assessment period, what process should be used to determine which students must have short-term instructional objectives and benchmarks on their IEPs?

 

The determination of whether a student is a student eligible to take NYSAA should be based on whether the student would meet the criteria as a student with a severe disability.  The determination should not be delayed until the annual review before the student is scheduled to take the State assessment.  The CSE determines whether or not a student with a disability is eligible to take NYSAA based on the following criteria: 

·      The student has a severe cognitive disability, significant deficits in communication/language, or significant deficits in adaptive behavior;

·       The student requires a highly specialized educational program that facilitates the acquisition, application, and transfer of skills across natural environments (home, school, community, and/or workplace); and

·        The student requires educational support systems, such as assistive technology, personal care services, health/medical services, or behavioral intervention.

 

16.   If the IEP includes short-term instructional objectives and benchmarks, must the IEP specify the evaluative criteria, evaluation procedures and evaluation schedules for each short-term instructional objective and benchmark as well as for the annual goals?

 

No.  Only the annual goals require the description of how the student's progress toward the annual goals will be measured.

 

17.   If the IEP includes short-term instructional objectives and benchmarks, can these be used to specify how the annual goal is measurable?

 

No.  The annual goal itself must be written in measurable terms.  Short-term instructional objectives and benchmarks indicate those measurable intermediate steps between the student's present level of performance and the measurable annual goal.

 

18.   Can the school district include short-term instructional objectives and benchmarks on the IEPs of other students besides those required by regulation?

 

Yes.  However, the school district must establish and consistently apply criteria for determining which students will have short-term instructional objectives and benchmarks included on their IEPs.

 

19.   Can a school district determine what testing accommodations will be allowed on districtwide assessments?

 

Yes.  Section 200.2 requires a school district to 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.

 

20.   If transition services must be in effect no later than beginning with the IEP when the student is age 15, when must the CSE begin the planning process for post secondary goals and transition services?

 

Transition services must be identified on the IEP that is developed at the annual review before the student turns age 15 (e.g., when the student is age 14) so that services begin with the IEP that will be in effect when the student is age 15. 

 

21.   Does the requirement for “measurable post-secondary goals” replace the previous requirement for “projected post-school outcomes”?

 

Yes.  Measurable post-secondary goals identify the student’s long-term goals for living, working and learning as an adult.  The IEP must also include measurable annual goals to help the student incrementally develop skills, knowledge, experiences and contacts with resources, as needed, to work toward these desired post-secondary goals.

 

22.   What is meant by the requirement that the special education programs and services recommended on the IEP be based, to the extent practicable, on peer-reviewed research?

 

Consistent with the No Child Left Behind Act (NCLB), schools should be providing research-based instruction to all students, including students with disabilities.  When making recommendations for a special education program or service, the CSE must consider, to the extent practicable, whether these services or programs meet the standard of peer-reviewed research.  Consistent with NCLB’s definition of scientifically-based research, peer reviewed research is intended to mean research that has been accepted by a peer-reviewed journal or approved by a panel of independent experts through a comparably rigorous, objective, and scientific review.

Parent consent 

23.   May a school district use due process procedures if the parent does not provide consent for the initial evaluation of the student?

 

Yes.  If a parent does not provide consent for an initial evaluation, the school district may pursue the evaluation by means of a due process procedure, including mediation or an impartial hearing.

 

24.   May the school district use due process procedures if the parent does not provide consent for the initial provision of special education services to the student?

 

No.  If, after being informed about the student's need for special education based on the individual evaluation, a parent refuses or fails to respond to a request for the initial provision of special education services to their child, the school district may not provide the special education services and may not initiate mediation or an impartial hearing to override the parent's refusal of consent.  The school district may take steps to meet with the parent to explain the needs of the student to ensure the parent is making a fully informed decision. 

 

In the event that consent is not received because the parent failed to respond, the school district must ensure that it has taken reasonable steps to locate the parent to ensure the parent has received the request for consent and has appointed a surrogate parent, if appropriate, for the student when the birth or adoptive parent cannot be located. 

 

25.   Can a parent withdraw his or her consent for special education services after the student has been receiving services?

 

No.  The time period for a parent’s withdrawal of consent for the initial provision of services ends once the special education programs and services have been initiated (i.e., are being provided) for a school age student.  A parent who wishes to discontinue special education programs and services for his or her child should request declassification through the CSE process or pursue mediation or an impartial hearing.

 

26.   If the student is a ward of the State or a homeless youth and the parents cannot be located, can the CSE proceed with an initial evaluation without parental consent?

 

If a student is a ward of the State or an unaccompanied homeless youth, the school district must first determine who is legally eligible to act as the parent for purposes of special education.  If appropriate, the school district must appoint a surrogate parent for a student who is a ward of the State.  The surrogate parent would then be the individual who would provide consent for the initial evaluation.

Procedural safeguards notice 

27.   If a school district posts the procedural safeguards notice on its web site, is that sufficient to claim that the parent has been given a copy of the notice?

 

No.  Posting the procedural safeguards notice on the school district's web site is recommended as it would allow any parent to review the notice by viewing the district's internet web site.  However, the school district must also provide a copy of the notice to the parent as required in the regulations.  The parent may elect to receive the procedural safeguards notice through an electronic (e-mail) communication if the school district makes such an option available.

Due process complaint notice 

28.   Is the school district obligated to assist the parent in completing the due process complaint notice?

 

The school district should provide information and assistance to the parent to ensure the parent understands how to submit the due process complaint notice.  Regulations require the school district to provide parents with sources for parents to contact to obtain assistance in understanding the special education process and their rights and protections. 

Resolution session 

29.   What is the difference between mediation and a resolution session?

 

In the mediation process, the parent and the representative from the school district meet with a trained mediator from the Community Dispute Resolution Center who will facilitate a problem-solving process between the parent and the school.  In a resolution session, the school and the parent have the opportunity to resolve the problem through a meeting with school personnel, including relevant members of the CSE or CPSE as determined by the school and the parent.  Both mediation and resolution session agreements are legally binding and enforceable in court.

 

30.   Who determines what members of the CSE or CPSE would participate in a resolution session?

 

Consistent with proposed federal regulations, the relevant members who could be instrumental in providing information to resolve the dispute should include all such members as determined both by the parent and by the school district. 

 

31.   If a parent brings his or her attorney to a resolution session, would the attorney's fees be considered for reimbursement if the parent prevails in a subsequent impartial hearing?

 

No.

 

32.   Can a parent bring an advocate to a resolution session?

 

Yes.

 

33.   Must the parent notify the school district in advance if he or she plans to bring his or her attorney to the resolution session?

 

Yes.  Since the federal law allows the school district to bring an attorney to the meeting only if the parent is bringing his or her attorney, it is expected that the parent inform the school district a reasonable period of time before the meeting when the parent intends to bring his or her attorney to a resolution session.  The school district should specify this in the notice to the parent of the resolution session.

 

34.   What happens if a parent refuses to participate in a resolution session?

 

Federal law requires the school district to convene a resolution session before initiating an impartial hearing.  Consistent with proposed federal regulations, except where the parties have jointly agreed to waive the resolution process, or to use mediation, or resolution has not been reached within the 30-day resolution period, the failure of a parent to participate in the resolution meeting will delay the timelines for the resolution process and due process hearing until the meeting is held. 

Impartial hearings 

35.   If the IHO determines a due process complaint notice is not sufficient, can the parent amend the notice and resubmit it?

 

No.  If a due process complaint notice is deemed insufficient by the IHO, the party initiating the notice must submit a new due process complaint notice and the timelines recommence.

 

36.   Must a new IHO be appointed if the parent submits a new due process complaint notice after a finding that the first notice was insufficient?

 

Yes.

 

37.   Must a new IHO be appointed if the first due process complaint notice was sufficient but the notice is later amended by agreement of the parties or by the IHO?

 

No.

Discipline procedures for students with disabilities 

38.   At a manifestation team meeting, is the burden on the parent to prove that his or her child’s behavior is a manifestation of the student's disability?

 

No.  State regulations make it clear that a team makes the determination of a manifestation.  The determination must be made based upon a review of the student's IEP, any teacher observations and any relevant information provided by the parents. 

 

39.   May the CSE continue to function as the manifestation team?

 

Yes.  The school district and parent may determine that all members of the CSE or CPSE are relevant members that must participate in the manifestation determination. 

 

40.   How have the requirements for services in an IAES been changed?

 

Prior to IDEA 2004, the student's current IEP had to be implemented in an IAES.  IDEA 2004 requires the student to receive services to continue to participate in the general education curriculum and to progress toward meeting the goals set out in the IEP, but does not require that such services include all the recommended programs and services on the student's current IEP.