Special Education

Section 200.4 Procedures for referral, evaluation, individualized education program (IEP) development, placement and review*

Disclaimer

(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)Referral for an initial evaluation. A referral may be made by:

(i) a student's parent as defined in section 200.1(ii) of this Part;

(ii) a designee of the school district in which the student resides, or the public school district the student legally attends or is eligible to attend;

(iii) the commissioner or designee of a public agency with responsibility for the education of the student; and/or

(iv) a designee of an education program affiliated with a child care institution with committee on special education responsibility pursuant to section 4002(3) of the Education Law.

(2) Request for referral for an initial evaluation. (i) A written request that the school district or agency refer the student for an initial evaluation pursuant to paragraph (1) of this subdivision may be made by:

(a) a professional staff member of the school district in which the student resides, or the public or private school the student legally attends or is eligible to attend;

(b) a licensed physician;

(c) a judicial officer;

(d) a professional staff member of a public agency with responsibility for welfare, health or education of children; or

(e) a student who is 18 years of age or older, or an emancipated minor, who is eligible to attend the public schools of the district.

(ii) A written request for referral of a student for an initial evaluation made to the school where the student resides or legally attends or is eligible to attend shall, if received by the building administrator or any other employee of the school, be forwarded to the committee chairperson immediately upon its receipt.

(iii) A referral submitted by persons other than the parent, student or a judicial officer shall:

(a) state the reasons for the referral and include any test results, records or reports upon which the referral is based that may be in the possession of the person submitting the referral;

(b) describe in writing, intervention services, programs or instructional methodologies used to remediate the student's performance prior to referral, including any supplementary aids or support services provided for this purpose, or state the reasons why no such attempts were made; and

(c) describe the extent of parental contact or involvement prior to the referral.

(iv) Upon receipt of a request for a referral that meets the requirements of subparagraph (iii) of this paragraph, the school district shall, within 10 school days, either:

(a) request parent consent to initiate the evaluation; or

(b) provide the parent with a copy of such request for referral; and

(1) inform the parent of his or her right to refer the student for an initial evaluation for special education programs and/or services; and

(2) offer the parent the opportunity to meet to discuss the request for referral and, as appropriate, the availability of appropriate general education support services for the student, with the building administrator or other designee of the school district authorized to make a referral pursuant to paragraph (1) of this subdivision, and the party making the request for referral if a professional staff member of the school district. Upon request of the parent or school district, any other person making a request for referral shall have the opportunity to attend such meeting.

(3) The date of receipt of a referral means the date on which either the committee chairperson or the building administrator receives the referral, whichever is earlier.

(4) If a referral is received by the building administrator, it shall be forwarded to the committee chairperson immediately upon its receipt by the administrator.

(5) If a referral is received by the committee chairperson, a copy shall be forwarded to the building administrator within five school days of its receipt by the committee chairperson.

(6) A committee chairperson who receives a referral shall immediately notify the parent pursuant to section 200.5(a) of this Part.

(7) In the event that the parent and the person submitting the referral pursuant to subparagraphs (ii), (iii) and/or (iv) of paragraph (1) of this subdivision agree in writing pursuant to section 200.5(b)(1)(i)(c) of this Part that the referral shall be withdrawn, the chairperson of the committee on special education shall provide the parent and the referring person a copy of the agreement. Each such agreement shall specify any alternative methods suggested to resolve the identified learning difficulty of the student and shall provide the opportunity for a follow-up conference within an agreed period of time to review the student's progress. A copy of the agreement shall also be placed in the student's cumulative educational record file.

(8)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 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 support services, speech and language 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 a professional staff member requested the referral 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. If at such meeting the parent 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 request for referral if a professional staff member of the school district, the parent, and the student, if appropriate, with copies of the agreement.

(ii) The copy of the agreement provided to the parent 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:

(a) shall be conducted within 10 school days of the building administrator's receipt of the referral; and

(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 initial 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 subparagraph (7)(i) and paragraph (j)(1) of this subdivision.  The individual evaluation 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) a physical examination in accordance with the provisions of sections 903, 904 and 905 of the Education Law;

(ii) an individual psychological evaluation, except when a school psychologist determines after an assessment of a school-age student, pursuant to paragraph (2) of this subdivision, that further evaluation is unnecessary;

(iii) a social history;

(iv) an observation of the student in the 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) other appropriate assessments or evaluations, including a functional behavioral assessment for a student whose behavior impedes his or her learning or that of others, as necessary to ascertain the physical, mental, behavioral and emotional factors which contribute to the suspected disabilities.

(2) A determination by a school psychologist of the need to administer an individual psychological evaluation to a student of school age pursuant to Education Law, section 4402(1)(b)(3)(a) and section 200.1(aa) and (bb) of this Part, shall be based upon an assessment conducted by the school psychologist to substantiate his or her determination.  Whenever a school psychologist determines that a psychological evaluation is unnecessary as a component of the initial evaluation, the psychologist shall prepare a written report of such assessment, including a statement of the reasons such evaluation is unnecessary, which shall be reviewed by the committee.

(3) Notwithstanding any provisions of this subdivision or section 200.1(aa) of this Part to the contrary, the committee on special education may direct that additional evaluations or assessments be conducted in order to appropriately assess the student in all areas related to the suspected disabilities.

(4) A committee on special education shall arrange for an appropriate reevaluation of each student with a disability if the school district determines that the educational or related services needs, including improved academic achievement and functional performance of the student, warrant a reevaluation or if the student's parent or teacher requests a reevaluation, but not more frequently than once a year unless the parent and representatives of the school district appointed to the committee on special education agree otherwise; and at least once every three years, except where the school district and the parent agree in writing that such reevaluation is unnecessary. The reevaluation shall be conducted by a multidisciplinary team or group of persons, including at least one teacher or other specialist with knowledge in the area of the student’s disability. In accordance with paragraph (5) of this subdivision, the reevaluation shall be sufficient to determine the student’s individual needs, educational progress and achievement, the student’s ability to participate in instructional programs in regular education and the student’s continuing eligibility for special education. The results of any reevaluations must be addressed by the committee on special education in a meeting to review and, as appropriate, revise the student’s IEP. To the extent possible, the school district shall encourage the consolidation of reevaluation meetings for the student and other committee on special education meetings for the student.

(5)Determination of needed evaluation data.

(i) As a part of an initial evaluation, if appropriate, and as part of any reevaluation in accordance with section 200.4(b)(4) of this Part, a group that includes the committee on special education, and other qualified professionals, as appropriate, shall review existing evaluation data on the student including evaluations and information provided by the parents of the student, current classroom-based assessments, local or State assessments, classroom-based observations, and observations by teachers and related services providers. The group may conduct its review without a meeting.

(ii) On the basis of that review, and input from the student’s parents, the committee on special education and other qualified professionals, as appropriate, shall identify what additional data, if any, are needed to determine:

(a) whether the student has a disability as defined in section 200.1(mm) or (zz) of this Part, or, in the case of a reevaluation of a student, whether the student continues to have such a disability;

(b) the present levels of academic achievement and related developmental needs of the student; including the four areas listed in section 200.1(ww)(3)(i) of this Part;

(c) whether the student needs special education, or, in the case of a reevaluation of a student, whether the student continues to need special education; and

(d) whether any additions or modifications to the special education services are needed to enable the student to meet the measurable annual goals set out in the IEP of the student and to participate, as appropriate, in the general curriculum.

(iii) The school district shall administer tests and other evaluation materials as may be needed to produce the data identified under subparagraph (ii) of the section.

(iv) If additional data are not needed, the school district must notify the parents of that determination and the reasons for it and of the right of the parents to request an assessment to determine whether, for purposes of services under this Part, the student continues to be a student with a disability and to determine the student’s educational needs. The school district is not required to conduct the assessment unless requested to do so by the student’s parents.

(6) School districts shall ensure that:

(i) assessments and other evaluation materials used to assess a student under this section:

(a) are provided and administered in the student's native language or other mode of communication and in the form most likely to yield accurate information on what the student knows and can do academically, developmentally and functionally, unless it is clearly not feasible to so provide or administer;

(b) are used for purposes for which the assessments or measures are valid and reliable;

(c) are administered by trained and knowledgeable personnel in accordance with the instruction provided by those who developed such assessments; and

(d) are selected and administered so as not to be discriminatory on a racial or cultural basis.

(ii) if an assessment is not conducted under standard conditions, a description of the extent to which it varied from standard conditions (e.g., the qualifications of the person administering the test, or the method of test administration) must be included in the evaluation report;

(iii) 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)assessments are selected and administered to ensure that, when an assessment is administered to a student with impaired sensory, manual or speaking skills, the 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) no single measure or assessment is used as the sole criterion for determining whether a student is a student with a disability or for determining an appropriate educational program for a student;

(vi) the evaluation is made by a multidisciplinary team or group of persons, including at least one teacher or other specialist with certification or knowledge in the area of the suspected disability;

(vii) the student is assessed in all areas related to the suspected disability, including, where appropriate, health, vision, hearing, social and emotional status, general intelligence, academic performance, vocational skills, communicative status and motor abilities;

(viii) students age 12 and those referred to special education for the first time who are age 12 and over, shall receive an assessment that includes a review of school records and teacher assessments, and parent and student interviews to determine vocational skills, aptitudes and interests;

(ix) the evaluation is sufficiently comprehensive to identify all of the student's special education needs, whether or not commonly linked to the disability category in which the student has been identified;

(x) technically sound instruments are used that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors;

(xi) assessment tools and strategies are used that provide relevant information that directly assists persons in determining the educational needs of the student;

(xii) the results of the evaluation are provided to the parents in their native language or mode of communication unless it is clearly not feasible to do so;

(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 subdivision (j) of this section;

(xv) the procedures for conducting expedited evaluations are conducted pursuant to section 201.6 of this Title;

(xvi) materials and procedures used to assess a student with limited English proficiency are selected and administered to ensure that they measure the extent to which the student has a disability and needs special education, rather than measure the student's English language skills; and

(xvii) assessments of students with disabilities who transfer from one school district to another school district in the same 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) The initial evaluation to determine if a student is a student with a disability must be completed within 60 days of receiving parental consent for the evaluation. The 60-day timeframe shall not apply if:

(i) a student enrolls in a school served by the school district after the relevant timeframe in this paragraph has begun and prior to a determination by the student's previous school district as to whether the student is a student with a disability, but only if the subsequent school district is making sufficient progress to ensure a prompt completion of the evaluation, and the parent and subsequent school district agree in writing to a specific time when the evaluation will be completed; or

(ii) the parent of a student repeatedly fails or refuses to produce the student for the evaluation.

(8)The screening of a student by a teacher or specialist to determine appropriate instructional strategies for curriculum implementation shall not be considered to be an evaluation for eligibility for special education.

(9) No student shall be required to obtain a prescription for a drug or other substance identified under schedule I, II, III, IV, or V in section 202(c) of the Controlled Substances Act (21 U.S.C. 812) as a condition of receiving an evaluation under this Part (United States Code, 2006 edition, volume 13; Superintendent of Documents, U.S. Government Printing Office, Stop SSOP, Washington, DC 20402-0001; 2008 - available at the Office of Counsel, New York State Education Department, State Education Building Room 148, 89 Washington Avenue, Albany, NY 12234).

(c) Eligibility Determinations. (1) 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 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. 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) lack of appropriate instruction in reading, including explicit and systematic instruction in phonemic awareness, phonics, vocabulary development, reading fluency (including oral reading skills) and reading comprehension strategies;

(ii) lack of appropriate instruction in math; or

(iii) limited English proficiency.

(3) A school district must evaluate a student with a disability prior to determining that the student is no longer a student with a disability, in accordance with paragraph (b)(4) of this section, and the school district must provide a copy of the evaluation report and the documentation of eligibility to the student's parent.

(4) A school district is not required to conduct a reevaluation of a student before the termination of a student's eligibility due to graduation with a local high school or Regents diploma or exceeding the age eligibility for a free appropriate public education but is required to provide such student with a summary of the student’s academic achievement and functional performance, which shall include recommendations on how to assist the student in meeting his or her postsecondary goals.

(5) A free appropriate public education must be available to any student with a disability who needs special education and related services, even though the student is advancing from grade to grade.

(6) 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.

(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 reading and math instruction and other resources of the regular education program, including support services and academic intervention services, has been considered.

(1) If the student has been determined to be ineligible for special education, the recommendation shall indicate the reasons the student was found ineligible.

(i) A copy of the recommendation and appropriate evaluation information shall be provided to the building administrator. The building administrator shall determine which support services, if appropriate, shall be provided to the student.

(ii) A copy of the recommendation shall be provided to the parent pursuant to section 200.5(a) of this Part.

(iii) If the student has been receiving special education services, but it is determined by the committee on special education that the student no longer needs special education services and can be placed in a regular educational program on a full-time basis, the recommendation shall:

(a) identify the declassification support services, as defined in section 200.1(ooo) of this Part, if any, to be provided to the student; and/or the student's teachers; and

(b) indicate the projected date of initiation of such services, the frequency of provision of such services, and the duration of such services, provided that such services shall not continue for more than one year after the student enters the full-time regular education program.

(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 for the 2011-12 school year, and thereafter, 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)Present levels of performance. The IEP shall report the present levels of academic achievement and functional performance and indicate the individual needs of the student according to each of the four areas listed in section 200.1(ww)(3)(i) of this Part, including:

(a) how the student’s disability affects involvement and progress in the general education curriculum; or

(b) for preschool students, as appropriate, how the disability affects the student’s participation in appropriate activities.

(ii) Disability classification. The IEP shall indicate the classification of the disability pursuant to section 200.1(mm) or (zz) of this Part;

(iii) Measurable annual goals. (a) The IEP shall list measurable annual goals, including academic and functional goals, consistent with the student's needs and abilities. The measurable annual goals must relate to:

(1) meeting the student’s needs that result from the student’s disability to enable the student to be involved in and progress in the general education curriculum; and

(2) meeting each of the student’s other educational needs that result from the student’s disability.

(b)Each annual goal shall include the evaluative criteria, evaluation procedures and schedules to be used to measure progress toward meeting the annual goal during the period beginning with placement and ending with the next scheduled review by the committee.

(c)The IEP shall identify when periodic reports on the progress the student is making toward the annual goals (such as through the use of quarterly or other periodic reports that are concurrent with the issuance of report cards) will be provided to the student’s parents.

(iv) Short-term instructional objectives and benchmarks. For a student who takes a New York State alternate assessment and for each preschool student with a disability, the IEP shall include a description of the short-term instructional objectives and/or benchmarks that are the measurable intermediate steps between the student’s present level of performance and the measurable annual goal.

(v) Special education program and services. (a) The IEP shall indicate the recommended special education program and services as defined in sections 200.1(qq) and (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(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) to advance appropriately toward attaining the annual goals;

(2) to be involved and progress in the general education curriculum and to participate in extracurricular and other nonacademic activities; and

(3) to be educated and participate with other students with disabilities and nondisabled students in the activities described in this section.

(b) The recommended program and services shall, to the extent practicable, be based on peer-reviewed research, and as appropriate indicate:

(1) the regular education classes in which the student will receive consultant teacher services;

(2) the class size, as defined in section 200.1(i) of this Part, if appropriate;

(3) the supplementary aids and services and program modifications to be provided to the student or on behalf of the student;

(4) a statement of supports for school personnel on behalf of the student;

(5) the extent to which the student’s parents will receive parent counseling and training as defined in section 200.1(kk) of this part, when appropriate;

(6) any assistive technology devices or services needed for the student to benefit from education, including the use of such devices in the student’s home or in other settings;

(7) the anticipated frequency, duration and location and, for a preschool student with a disability, the intensity for each of the recommended programs and services, including the supplementary aids and services and program modifications to be provided to or on behalf of the student;

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

(9) the projected date for initiation of the recommended special education program and services.

(vi) Testing accommodations. The IEP shall provide a statement of any individual testing accommodations to be used consistently by the student in the recommended educational program and in the administration of districtwide assessments of student achievement and, in accordance with department policy, State assessments of student achievement that are necessary to measure the academic achievement and functional performance of the student.

(vii)Participation in State and districtwide assessments. If the student will participate in an alternate assessment on a particular State or districtwide assessment of student achievement, the IEP shall provide a statement of why the student cannot participate in the regular assessment and why the particular alternate assessment selected is appropriate for the student.

(viii) Participation in regular class. The IEP shall provide:

(a) an explanation of the extent, if any, to which the student will not participate with nondisabled students in the regular class and in the activities described in subparagraph (v) of this paragraph; or

(b) for preschool students, an explanation of the extent, if any, to which the student will not participate in appropriate activities with age-appropriate nondisabled peers;

(c) identify if the provision of IEP services for a preschool child with a disability will be in a setting with no regular contact with age-appropriate peers without disabilities; and

(d) if a student is not participating in a regular physical education program, the extent to which the student will participate in specially-designed instruction in physical education, including adapted physical education.

(ix) Transition services. For those students beginning not later than the first IEP to be in effect when the student is age 15 (and at a younger age, if determined appropriate), and updated annually, the IEP shall, under the applicable components of the student’s IEP, include:

(a) under the student’s present levels of performance, a statement of the student’s needs, taking into account the student’s strengths, preferences and interests, as they relate to transition from school to post-school activities as defined in section 200.1(fff) of this Part;

(b) appropriate measurable postsecondary goals based upon age appropriate transition assessments relating to training, education, employment and, where appropriate, independent living skills;

(c) a statement of the transition service needs of the student that focuses on the student’s courses of study, such as participation in advanced-placement courses or a vocational education program;

(d) needed activities to facilitate the student’s movement from school to post-school activities, including instruction, related services, community experiences, the development of employment and other post-school adult living objectives and, when appropriate, acquisition of daily living skills and functional vocational evaluation; and

(e) a statement of the responsibilities of the school district and, when applicable, participating agencies for the provision of such services and activities that promote movement from school to post-school opportunities, or both, before the student leaves the school setting.

(x) Twelve-month services. For students eligible for 12-month service and/or program, the IEP shall indicate the identity of the provider of services during the months of July and August, and, for preschool students determined by the committee on preschool special education to require a structured learning environment of 12 months duration to prevent substantial regression, a statement of the reasons for such recommendation.

(xi) Projected date of annual review. The IEP shall indicate the projected date of the review of the student's need for such services.

(xii) Placement. The IEP shall indicate the recommended placement.

(3) Consideration of special factors. The CSE shall:

(i) in the case of a student whose behavior impedes his or her learning or that of others, consider strategies, including positive behavioral interventions, and supports and other strategies to address that behavior that are consistent with the requirements in section 200.22 of this Part;

(ii) in the case of a student with limited English proficiency, consider the language needs of the student as such needs relate to the student's IEP;

(iii) in the case of a student who is blind or visually impaired, provide for instruction in Braille and the use of Braille unless the CSE determines, after an evaluation of the student's reading and writing skills, needs, and appropriate reading and writing media (including an evaluation of the student's future needs for instruction in Braille or the use of Braille), that instruction in Braille or use of Braille is not appropriate for the student;

(iv) consider the communication needs of the student, and in the case of a student who is deaf or hard of hearing, consider the student’s language and communication needs, opportunities for direct communications with peers and professional personnel in the student’s language and communication mode, academic level, and full range of needs, including opportunities for direct instruction in the student’s language and communication mode;

(v) consider whether the student requires assistive technology devices and services, including whether the use of school-purchased assistive technology devices is required to be used in the student’s home or in other settings in order for the student to receive a free appropriate public education; and

(vi) include a statement in the IEP if, in considering the special factors described in this paragraph, the committee has determined a student needs a particular device or service (including an intervention, accommodation, or other program modification) in order for the student to receive a free appropriate public education.

(4) Such recommendations shall:

(i) be developed in meetings of the committee on special education.

(a) If the recommended placement is to be in a school operated by an agency or school other than the school district in which the student would normally attend if the student did not have a disability or if the education of a student residing in a facility operated or supervised by a State department or agency is the responsibility of the school district, the school district must ensure that a representative of that agency or school attends. If the private school or facility representative cannot attend, the school district must use other methods to ensure participation by the private school or facility, including individual or conference telephone calls.

(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 for People With 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 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. 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 should take steps to involve the other agency in the planning of any transition services;

(d) When conducting a meeting of the committee on special education, the parent and the representative of the school district appointed to the committee on special education may agree to use alternative means of meeting participation, such as videoconferences and conference calls.

(ii) be developed in conformity with the least restrictive environment provisions of this Part:

(a) placement shall be based on the student’s individualized education program and determined at least annually;

(b) placement shall be as close as possible to the student’s home, and unless the student’s individualized education program requires some other arrangement, the student shall be educated in the school he or she would have attended if not disabled;

(c) in selecting the least restrictive environment, consideration must be given to any potential harmful effect on the student or on the quality of services that he or she needs; and

(d) a student with a disability must not be removed from education in age-appropriate regular classrooms solely because of needed modifications in the general education curriculum.

(5) A report of the evaluation upon which the recommendation is based shall be forwarded to the board of education along with the recommendation.

(6) In the event that the parent does not choose to participate in the development of such recommendations, the committee shall forward its recommendation to the board of education and the parents as otherwise required by this subdivision.

(e) IEP Implementation. (1) Within 60 school days of the receipt of consent to evaluate for a student not previously identified as having a disability, or within 60 school days of the referral for review of the student with a disability, the board of education shall arrange for appropriate special programs and services, except that if such recommendation is for placement in an approved in-state or out-of-state private school, the board shall arrange for such programs and services within 30 school days of the board's receipt of the recommendation of the committee.

(i) There may be no delay in implementing a student's IEP, including any case in which the payment source for providing or paying for special education to the student is being determined.

(ii) The school district shall ensure that each student with a disability has an IEP in effect at the beginning of each school year.

(2) If on review of the recommendation of a committee on special education or a subcommittee on special education, the board of education disagrees with such recommendation, the board of education shall follow one of the following procedures:

(i) The board may remand the recommendation to the committee or subcommittee with a statement of the board's objections or concerns and a request that a timely meeting be held to review and consider such objections or concerns. The committee or subcommittee shall consider the board's objections or concerns, revise the IEP where appropriate, and resubmit a recommendation to the board. If the board continues to disagree with the recommendation of the committee or subcommittee, the board may either continue to remand the recommendation to the original committee or subcommittee for additional reviews of its objections or concerns, or establish a second committee or subcommittee to develop a new recommendation in accordance with subparagraph (ii) of this paragraph, provided that the board arranges for the programs and services in accordance with the student's IEP within 60 school days of receipt of consent to evaluate for a student not previously identified as having a disability, or within 60 school days of the referral for review of the student with a disability; or

(ii) The board may establish a second committee on special education or subcommittee to develop a new recommendation for the student at a meeting held in accordance with the procedures prescribed in this Part. If the board disagrees with such new recommendation, the board may remand the recommendation to such second committee or subcommittee with a statement of the board's objections or concerns and a request that a timely meeting be held to review and consider such objections or concerns. Such second committee or subcommittee shall consider the board's objections or concerns, revise the IEP where appropriate, and resubmit a recommendation to the board. If the board continues to disagree with the recommendation of such second committee or subcommittee, the board may continue to remand the recommendation for additional reviews of its objections or concerns by such second committee or subcommittee, provided that the board arranges for the programs and services in accordance with the student's IEP, as developed by such second committee or subcommittee, within 60 school days of receipt of consent to evaluate for a student not previously identified as having a disability, or within 60 school days of the referral for review of the student with a disability. Nothing in this paragraph shall be construed to authorize the board to select the recommendation of the original committee or subcommittee once it has established a second committee or subcommittee to make a new recommendation for the student pursuant to this subparagraph.

(3) The school district shall ensure that the recommendations on a student’s IEP, including changes to the IEP made pursuant to subdivision (g) of this section, are implemented, including but not limited to:

(i) ensuring that each regular education teacher, special education teacher, related service provider, and/or other service provider, as defined in section 200.2(b)(11)(i)(a) of this Part, who is responsible for the implementation of a student’s IEP, is provided a paper or electronic copy of the IEP prior to the implementation of such IEP or shall be able to access such student’s IEP electronically.  If the board of education or board of trustees adopts a policy that the student's IEP is to be accessed electronically, then such policy shall also ensure that the individuals responsible for the implementation of a student's IEP shall be notified and trained on how to access such IEPs electronically;

(ii) ensuring that supplementary school personnel, as defined in section 200.1(hh) of this Part, and each other provider responsible for assisting in the implementation of a student's IEP, has the opportunity to review a copy of the student's IEP, prior to the implementation of such program, and has ongoing access to a copy of the IEP, which may be the copy provided to the student's special education teacher or the teacher or related service provider under whose direction such supplementary school personnel or other provider works;

(iii) ensuring that each regular education teacher, special education teacher, related service provider, other service provider, supplementary school personnel as defined in section 200.1(hh) of this Part, and other provider and support staff person has been informed, prior to the implementation of the IEP, of his or her responsibility to implement the recommendations on the student's IEP, including the responsibility to provide specific accommodations, program modifications, supports and/or services for the student in accordance with the IEP; and

(iv) ensuring that a copy of the IEP is provided to the student’s parents, including a revised copy of the IEP at the parent’s request with the amendments developed pursuant to subdivision (g) of this section incorporated, at no cost to the student’s parents.

(4) If the student's parent, teacher or an administrator of the school or agency believes that the program or placement recommended in the IEP is no longer appropriate, such party may refer the student to the committee on special education for review, provided that the student shall remain in the current placement pending a new recommendation of the committee on special education, unless the board and parent otherwise agree.

(5) When consultant teacher services are specified in a student's IEP, the regular education teachers of the student for whom the service will be provided shall be given the opportunity to participate in the instructional planning process with the consultant teacher to discuss the objectives and to determine the methods and schedules for such services following the development of the IEP.

(6) If a participating agency fails to provide agreed-upon transition services contained in the student's IEP, the district responsible for the student's education shall, as soon as possible, initiate a meeting to identify alternative strategies to meet the transition objectives and, if necessary, revise the student's IEP. Nothing in this Part shall relieve any participating agency of its responsibility to provide or pay for any transition service that the agency would otherwise provide to students with disabilities who meet its eligibility criteria.

(7) The school district must provide special education and related services to a student with a disability in accordance with the student's IEP and must make a good faith effort to assist the student to achieve the annual goals and, if appropriate, short-term instructional objectives or benchmarks listed in the student's IEP.

(8) Students with disabilities who transfer school districts. (i) Transfer within New York State. In the case of a student with a disability who had an IEP that was in effect in this State and who transfers from one school district and enrolls in a new school district within the same 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 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) Transmittal of Records. (a) To facilitate the transition for a student described in this paragraph, the new school district in which the student enrolls shall take reasonable steps to promptly obtain the student’s records, including the IEP and supporting documents and any other records relating to the provision of special education services to the student, from the previous school in which the student was enrolled pursuant to 34 C.F.R. section 99.31(a)(2) (Code of Federal Regulations, 2009 edition, Superintendent of Documents, U.S. Government Printing Office, Stop SSOP, Washington, DC 20402-0001: 2009 – available at the Office of Counsel, New York State Education Department, State Education Building Room 148, 89 Washington Avenue, Albany, NY 12234).

(b) The previous school in which the student was enrolled shall take reasonable steps to promptly respond to such request from the new school.

(9) The school district shall not require a student with a disability to obtain a prescription for a drug or other substance identified under schedule I, II, III, IV, or V in section 202(c) of the Controlled Substances Act (21 U.S.C. section 812) as a condition of receiving services under this Part (United States Code, 2006 edition, volume 13; Superintendent of Documents, U.S. Government Printing Office, Stop SSOP, Washington, DC 20402-0001; 2008 – available at the Office of Counsel, New York State Education Department, State Education Building Room 148, 89 Washington Avenue, Albany, NY 12234).

(f) Annual review. The individualized education program (IEP) of each student with a disability shall be reviewed and, if appropriate, revised, periodically but not less than annually to determine if the annual goals for the student are being achieved. Any meeting to develop, review or revise the IEP of each student with a disability to be conducted by the committee on special education or subcommittee thereof, pursuant to section 4402(1)(b)(2) of the Education Law, shall be based upon review of a student's IEP and other current information pertaining to the student's performance.

(1) Such review shall consider the following factors:

(i) the strengths of the student;

(ii) the concerns of the parents for enhancing the education of their child;

(iii) the results of the initial or most recent evaluation of the student;

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

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

(vi) the special factors described in paragraph (d)(3) of this section; and

(vii) the educational progress and achievement of the student with a disability and the student's ability to participate in instructional programs in regular education and in the least restrictive environment.

(2) If appropriate, the IEP must be revised to address:

(i) any lack of expected progress toward the annual goals and in the general education curriculum or participation in appropriate activities for preschool students with disabilities, if appropriate;

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

(iii) the student’s anticipated needs;

(iv) or other matters, including a student’s need for test accommodations and/or modifications and the student’s need for a particular device or service (including an intervention, accommodation or other program) in consideration of the special factors contained in paragraph (d)(3) of this section in order for the student to receive a free appropriate public education.

(3) Prior to the annual review, the committee on special education shall notify the parent of its intent to review the student's program and placement in accordance with section 200.5(c) of this Part.

(4) Upon completion of the annual review, the committee on special education shall notify the parents of the committee's recommendation in accordance with section 200.5(a) of this Part.

(g) Amendments to the IEP.

(1) Amendments to an IEP made after the annual review may be made by rewriting the IEP or by developing a written document to amend or modify the student’s current IEP, provided that:

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

(ii) the committee on special education shall be notified of any changes made to the IEP pursuant to paragraph (2) of this subdivision; and

(iii) the parent shall receive a copy of the document that amends or modifies the IEP or, upon request, the parent shall be provided a revised copy of the entire IEP with the amendments incorporated.

(2) In making changes to a student’s IEP after the annual review has been conducted, consistent with the procedures established in sections 4308(2)(i), 4355(2)(i), 4402(1)(b)(3)(b) and 4410(3)(a)(6) of the Education Law, the parent and the school district may agree not to convene a meeting of the committee on special education for the purpose of making those changes, and instead may develop a written document to amend or modify the student’s current IEP under the following circumstances:

(i) the parent makes a request to the school district for an amendment to the IEP and the school district and such parent agree in writing; or

(ii) the school district provides the parent with a written proposal to amend a provision or provisions of the IEP that is conveyed in language understandable to the parent and in such parent’s native language or other dominant mode of communication, informs and allows the parent the opportunity to consult with the appropriate personnel or related service providers concerning the proposed changes and the parent agrees in writing to such amendments.

(3) Amendments to an IEP pursuant to paragraph (2) of this subdivision shall not affect the requirement that the committee on special education review the IEP at least annually, or more often if necessary.

(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 Children 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) A committee on special education which receives such a request shall:

(i) forward a copy of the agency's request, as well as a request for parental consent for an evaluation, to the parent of the student at the address indicated in the request from the agency;

(ii) in the event that the parent does not grant consent or fails to respond to a request for consent, the committee shall notify the board of education that they may utilize the procedures described in section 200.5 of this Part to permit the district to conduct an evaluation of the student without the consent of the parent;

(iii) if consent has been obtained, conduct an evaluation comparable to that described in subdivision (b) of this section; and

(iv) develop a written recommendation which:

(a) indicates the reasons for determining that no disability exists; or

(b) if the student is determined to have a disability, provides a recommendation in accordance with paragraphs (d)(2) through (4) of this section.

(3) The committee shall forward a copy of the evaluation and recommendation to the requesting agency and to the board of education.

(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) The notice shall be provided:

(i) by November 1st of the school year within which a student who is placed in an in-state or out-of-state residential school program in accordance with article 81 or 89 of the Education Law will attain the age of 18 or, if such student is over the age of 18 when placed in such a residential program, at the time of placement; and

(ii) upon the first annual review after attaining the age of 15 for a student who is receiving nonresidential special services or programs in accordance with article 89 of the Education Law, or is receiving special services or programs in a day program at the Henry Viscardi School, and who:

(a) is receiving such special services or programs 100 percent of the school day;

(b) is receiving individualized attention or intervention because of intensive management needs or a severe disability; and

(c) may need adult services as determined by the committee on special education or multidisciplinary team following appropriate review of the student's physical, mental, emotional and educational history.

(2) The notice, which shall be in a form prescribed by the Commissioner of Education, shall:

(i) describe in detail the opportunity and procedure for obtaining from a State agency specified in Education Law, section 4402(1)(b)(5)(a), at least six months before such student attains the age of 21, a determination of the student's need for adult services and a recommendation of all appropriate programs operated, approved, authorized, or licensed by that agency which may be available when the student becomes ineligible for tuition-free educational services;

(ii) provide that:

(a) (1)within 20 days of receipt of notice by a student 18 years of age or older, the committee on special education or multidisciplinary team shall give the student the opportunity to consent or withhold consent to the release of relevant information as such term is defined in section 4402(1)(b)(5)(a) of the Education Law; or

(2) within 20 days of receipt of notice by the parent or guardian of a student less than 18 years of age, the committee on special education or multidisciplinary team shall give the parent or guardian the opportunity to consent or withhold consent to the release of relevant information; or

(3) within 30 days after receipt of notice by a student over the age of 18 years, if such student exercises neither option set forth in subclause (1) of this clause and a designated staff member of the staff of the educational facility has reason to believe that the student may not be able to understand the purpose of the form, the committee on special education or the multidisciplinary team shall give the parent or guardian the opportunity to consent or withhold consent to the release of relevant information;

(b) the committee on special education or multidisciplinary team, upon receipt of consent, shall forward the student's name and other relevant information in a report to the Commissioner of Mental Health, Commissioner of the Office for People With Developmental Disabilities, Commissioner of Social Services or Commissioner of Education or their designees. The committee on special education or multidisciplinary team shall determine which commissioner shall receive the report; and

(c) such information shall be released to the Council on Children and Families if there is a dispute as to the appropriate agency;

(iii) state that:

(a) within 10 school days of the date of receipt of consent, the committee on special education or multidisciplinary team shall forward the report, including all relevant information in its possession, to the commissioner of the appropriate agency or such commissioner's designee; and

(b) in the event that the committee on special education or multidisciplinary team is notified by the commissioner of the State agency receiving the report that such agency is not responsible for determining the need for and recommending adult services for the student, the committee on special education or multidisciplinary team shall forward the report to another of the commissioners identified in clause (ii)(b) of this paragraph, or, if there exists a dispute as to which agency may be responsible, shall forward the report to the Council on Children and Families for resolution of the dispute; and

(iv) state that in the event that consent is withheld, the notice shall be renewed each year until consent is granted or until the student is no longer eligible for tuition-free educational services.

(3) In addition to the requirements of paragraph (2) of this subdivision, the notice to the parent, or student, where appropriate, shall:

(i) identify all the documents to be forwarded by the committee on special education or multidisciplinary team pursuant to paragraph (2) of this subdivision;

(ii) inform the person notified of the opportunity to review the information to be forwarded and to provide additional relevant information that may be in that person's possession; and

(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 247.5 of this Title, as applicable.

(4) The committee on special education or the multidisciplinary team shall forward additional and updated relevant information to the Commissioner of Mental Health, Commissioner of the Office for People With Developmental Disabilities, Commissioner of the Office of Children and Family Services or Commissioner of Education, or their designees, upon the request for such information by such commissioner or designee, and upon obtaining appropriate consent.

(5) On or before October 1st of each year, the committee on special education or the multidisciplinary team shall prepare and submit an annual report to the State Education Department, the form and content of which shall be prescribed by the Commissioner of Education in accordance with the provisions of section 4402(1)(b)(5)(e) of the Education Law.

(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 written 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; an intellectual disability; 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; an intellectual disability; 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.

* Includes all amendments through April 2012

Last Updated: April 5, 2013