( 207KB) AMENDMENT OF THE
REGULATIONS OF THE COMMISSIONER OF EDUCATION - PDF ( 207KB)
Underlined language is new language. Bracketed [ ] language is language to be repealed.
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 1, 2007, as follows:
(ii) Response to intervention programs. (1) A school district’s process to determine if a student responds to scientific, research-based instruction shall include the following minimum requirements:
(i) appropriate
instruction delivered to all students in the general education class by
qualified personnel;
(a) appropriate
instruction in reading shall mean scientific research- based reading programs
that include explicit and systematic instruction in phonemic awareness,
phonics, vocabulary development, reading fluency (including oral reading
skills) and reading comprehension strategies;
(ii) screenings
applied to all students in the class to identify those students who are
not making academic progress at expected rates;
(iii) 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
to meet age or grade level standards;
(iv) repeated assessments of student achievement which should include curriculum based measures to determine if interventions are resulting in student progress toward age or grade level standards;
(v) the
application of information about the student’s response to intervention
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
(vi) 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:
(a) the
amount and nature of student performance data that will be collected and
the general education services that will be provided pursuant to paragraph
(2) of this subdivision;
(b) strategies
for increasing the student’s rate of learning; and
(c) the
parents’ right to request an evaluation for special education programs
and/or services.
(2) A
school district shall select and
define the specific structure and components of the response
to intervention program, including, but not limited to, the criteria for
determining the levels of intervention to be provided to students, the
types of interventions, the amount and nature of student performance data
to be collected and the manner and frequency for progress monitoring.
(3) A
school district shall take appropriate steps to ensure that staff have
the knowledge and skills necessary to implement a response to intervention
program and that such program is implemented consistent with paragraph
(2) of this subdivision.
2. Subdivision
(a) of section 120.6 of the Regulations of the Commissioner of Education
is amended, effective July 1, 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), (ss), (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 1, 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.
(ss) School
health services means [nursing] school nurse services provided by
a qualified school nurse or other health services provided by a qualified
person designed to enable a student with a disability to receive a free appropriate
public education as described in the individualized education program of
the student.
(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 (CART), 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 1, 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] 2006 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 pre-referral 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; (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 district-wide assessments; [and]
(14) that [identifies] identify how
the district, to the extent feasible, will use universal design principles
in developing and administering any district-wide 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.
(c) . . .
(d) . . .
(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 1, 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 1, 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. The school district must initiate
a referral and promptly request parental consent to evaluate the student
to determine if the student needs special education services and programs
if a student has not made adequate progress after an appropriate period of
time when provided instruction as described in section 100.2(ii) of this
Title.
(1)
. . .
(2)
. . .
(3)
. . .
(4)
. . .
(5)
. . .
(6)
. . .
(7)
. . .
(8)
[In] Except as otherwise provided in section 200.5(b)(6) of this Part, 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, including, but not limited to,
telephone calls made or attempted and the results of those calls and correspondence
sent to the parents and any responses received, 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. The individual evaluation shall be completed within 60
days of receipt of consent unless extended by mutual agreement of the student’s
parents and the CSE pursuant to sections 200.4(b)(7)(i) and 200.4(j)(1) of
this Part.
The individual evaluation [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) . . .
(iii)
[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)
[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) . . .
(vi) . . .
(vii) . . .
(viii) . . .
(ix) . . .
(x) . . .
(xi) .
. .
(xii)
. . .
(xiii)
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)
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)
the procedures for conducting expedited evaluations are conducted pursuant
to [Part 201] section 201.6 of this Title;
(xvi)
. . .
(xvii)
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 January 1, 2009, 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 district-wide 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 New York State. In the case of a student with a disability who had an
IEP that was in effect in this State and who transfers from one school district
and enrolls in a new school district within the same [academic] school year,
the new school district shall provide such student with a free appropriate
public education, including services comparable to those described in the previously
held IEP, in consultation with the parents, until such time as the school district
adopts the previously held IEP or develops, adopts and implements a new IEP
that is consistent with Federal and State law and regulations.
(ii) Transfer from outside New York State. In
the case of a student with a disability who transfers school districts within
the same [academic] school year, who enrolls in a new school district
and who had an IEP that was in effect in another State, the school district
shall provide such student with a free appropriate public education, including
services comparable to those described in the previously held IEP, in consultation
with the parents, until such time as the school district conducts an evaluation
pursuant to this section, if determined to be necessary by such school district,
and develops a new IEP, if appropriate, that is consistent with Federal and
State law and regulation.
(iii)
. . .
(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) A
student suspected of having a learning disability as defined in section
200.1(zz)(6) of this Part must receive an individual evaluation that includes
a variety of assessment tools and strategies pursuant to subdivision (b)
of this section. The CSE may not rely on any single procedure as the sole
criterion for determining whether a student has a learning disability.
The individual evaluation shall be completed within 60 days of receipt
of consent, unless extended by mutual agreement of the student’s parent
and the CSE. (i) The
individual evaluation must include information from an observation of the
student in routine classroom instruction and monitoring of the student’s
performance that was either done before the student was referred for an
evaluation or from 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 (2) of this subdivision.
(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, as part of the evaluation procedures pursuant
to section 200.4(b) and (c) of this Part, consider,
(a) data
that demonstrate that prior to, or as 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.
(2) The
determination of eligibility for special education for a student suspected
of having a learning disability must be made by 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),
(3) A
student may be determined to have a learning disability if, when provided
with learning experiences and instruction appropriate for the student’s
age or State-approved grade-level standards, 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: oral expression, listening
comprehension, written expression, basic reading skills, reading fluency
skills, reading comprehension, mathematics calculation, mathematics problem
solving; and
(i) The
student either
(a) does
not make sufficient progress to meet age or State-approved grade-level
standards in one or more of the areas identified in this paragraph when
using a process based on the student’s response to scientific, research-based
intervention pursuant to section 100.2(ii) of this Title; or
(b) 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 CSE to be relevant to the identification
of a learning disability, using appropriate assessments consistent with
section 200.4(b) of this Part; and
(ii) The
CSE determines that its findings under this paragraph are not primarily
the result of a visual, hearing, or motor disability; mental retardation;
emotional disturbance; cultural factors; environmental or economic disadvantage;
or limited English proficiency.
(4) In
addition to the criteria in paragraph (3) of this subdivision, the CSE
is not prohibited from considering whether there is 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 effective on and after July 1, 2012, a school
district shall not use the severe discrepancy criteria to determine that
a student in kindergarten through grade four has a learning disability
in the area of reading.
(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 (3) of this subdivision:
(1) the
student does not achieve adequately for the student’s age or to meet State-approved
grade-level standards; and
(2) the
student
(i) does
not make sufficient progress to meet age or State-approved grade-level
standards; or
(ii) 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 pursuant to section 100.2(ii)
of this Title:
(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)(1)(vi) 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 1, 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, January 1, 2009 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] CSE considered and the reasons why those options were
rejected;
(iv) a description of each evaluation procedure,
[test] assessment, record, or report the [district] CSE used
as a basis for the proposed or refused action;
(v)
a description of [the] other factors that are relevant to the [district’s] CSE’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] accesses a
parent’s private or public insurance proceeds in accordance with
the requirements of 34 C.F.R. sections 300.154(d)(2)(iv)(A) and (e)(1) and
(e)(2)(i) (Code of Federal Regulations, 2006 edition, title 34, section
300.154, Federal Register/ Vol. 71, No. 156/ August 14, 2006/ pp. 46771-46772,
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)
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, January 1, 2009, 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] 2006 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 school district’s 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:
(a) 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
(b) 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 United States.
(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. No party may challenge the sufficiency of a due process
complaint using this procedure for expedited impartial hearings conducted
pursuant to section 201.11 of this Title.
(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. The school district shall take steps to ensure that
one or both of the parents of the student with a disability are present at
the resolution meeting, including notifying parents of the meeting early
enough to ensure that they will have the opportunity to attend and scheduling
the resolution meeting at a mutually agreed on time and place and in a location
that is physically accessible to the parents.
(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 United States. A party may void such agreement within
three business days of the agreement’s execution.
(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.
(a) 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.
(b) 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 pre-hearing conference. Unless an extension is granted pursuant
to subparagraph (5)(i) of this subdivision:[, the hearing, or a pre-hearing
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
pre-hearing 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 pre-hearing
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 pre-hearing 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) . . .
(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. Not more than one 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 1, 2007, as follows:
§200.6
Continuum of services.
(a)
A student with a disability shall be provided with appropriate special education.
(1)
Students with disabilities shall be provided special education in the least
restrictive environment, as defined in section 200.1(cc) of this Part. To
enable students with disabilities to be educated with nondisabled students
to the maximum extent appropriate, specially designed instruction and supplementary
services may be provided in the regular class, including, as appropriate,
providing related services, resource room programs and special class programs
within the general education classroom. [Such services may
include, but are not limited to, consultant teacher services and other
group or individual supplemental or direct special education instruction].
(2)
. . .
(3)
. . .
(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 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 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) A
school district may include integrated co-teaching services in its continuum
of services. Integrated co-teaching services means the provision
of specially designed instruction and academic instruction provided to
a group of students with disabilities and nondisabled students.
(1) The
maximum number of students with disabilities receiving integrated co-teaching
services in a class shall be determined in accordance with the students’ individual
needs as recommended on their IEPs, provided that effective July 1, 2008,
the number of students with disabilities in such classes shall not exceed
12 students.
(2) School
personnel assigned to each class shall minimally include a special education
teacher and a general education teacher.
(3) Additional
personnel, including supplementary school personnel, assigned to such classes
by the district, may not serve as the special education teacher pursuant
to paragraph (2) of this subdivision.
[(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)(1) 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] 30 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, effective July 1, 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, effective July 1, 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 1, 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 1, 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 1, 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 1, 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.
Paragraph (3) of subdivision (d) of section 200.16 of the Regulations of the
Commissioner of Education is amended, effective July 1, 2007, as follows:
(3)
If the parent disagrees with the evaluation, the parent may obtain an independent educational evaluation
at public expense in accordance with section 200.5(g) of this Part to the extent
authorized by Federal law and regulation.
16.
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 1, 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.
17.
Subdivision (i) of section 200.16 of the Regulations of the Commissioner of
Education is amended, effective July 1, 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) 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) . . .
18.
Paragraph (3) of subdivision (b) of Section 200.22 of the Regulations of the
Commissioner of Education is amended, effective July 1, 2007, as follows:
(3)
Except as provided in subdivision [(f)] (e) of this section, a behavioral
intervention plan shall not include the use of aversive interventions.
19.
Subdivisions (e), (i), (k) and (n) of Section 201.2 of the Regulations of the
Commissioner of Education are amended, effective July 1, 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.
20. Section
201.3 of the Regulations of the Commissioner of Education is repealed and
a new section 201.3 is added, effective July 1, 2007, as follows:
§201.3 CSE
responsibilities for functional behavioral assessments and behavioral intervention
plans. If the manifestation team pursuant to section 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.
21.
Subdivisions (d) and (e) of section 201.4 of the Regulations of the Commissioner
of Education are amended, effective July 1, 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.
22.
Subdivision (a) and paragraph (3) of subdivision (b) of section 201.5 of the
Regulations of the Commissioner of Education are amended, effective July
1, 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].
23.
Subdivision (b) of section 201.6 of the Regulations of the Commissioner of
Education is amended, effective July 1, 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. 24.
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 1, 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.
25.
Section 201.8 of the Regulations of the Commissioner of Education is amended,
effective July 1, 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)
. . .
26.
Paragraph (2) of subdivision (c) of section 201.9 of the Regulations of the
Commissioner of Education is amended, effective July 1, 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.
27.
Subdivision (e) of section 201.10 of the Regulations of the Commissioner of
Education is repealed, effective July 1, 2007, and subdivisions (a), (c)
and (d) of section 201.10 of the Regulations of the Commissioner of Education
are amended, effective July 1, 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. 28.
Section 201.11 of the Regulations of the Commissioner of Education is amended,
effective July 1, 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 (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.