Policy 02-02

January 2002

TO: 

 District Superintendents

Presidents of Boards of Education

Superintendents of Schools

Organizations, Parents & Individuals Concerned with Special Education

Superintendents of State-Operated and State-Supported Schools

Executive Directors of Approved Private Schools

Directors of Approved Preschool Programs

Principals of Public Schools

Directors of Special Education
Chairpersons of Committees on Special Education
Chairpersons of Committees on Preschool Special Education
Directors of Pupil Personnel Services
Commissioner's Advisory Panel for Special Education Services
Impartial Hearing Officers
Community Dispute Resolution Centers
SETRC Project Directors and Professional Development Specialists
State and Local Teacher Associations
ECDC Project Directors and Coordinators
New York City Board of Education
Independent Living Centers
Colleges with Special Education and General Education Teacher Training

FROM:
Rita D. Levay

SUBJECT:
Amendments to the Regulations of the Commissioner of Education Relating to Special Education – Effective January 10, 2002

The Board of Regents approved amendments to Sections 200.1, 200.2, 200.3, 200.4, 200.5, 200.6, 200.7, 200.13, 200.16, 201.7, 201.11, 276.1, 279.3, 279.8 and 100.6 of the Regulations of the Commissioner of Education at the December 2001 meeting. These amendments, which become effective on January 10, 2002, align State regulations with State and federal law and the federal regulations that implement the Individuals with Disabilities Education Act, strengthen the link between transition services and a student’s movement from school to post-school activities and correct certain cross-citations.

Following is a summary of the revised rules and copy of the revised regulatory language. Questions regarding this information may be directed to the Special Education Policy Unit at (518) 473-2878 or to your Regional Associate at one of the following Special Education Quality Assurance Offices:

Central New York Regional Office 

 (315) 471-4796

Eastern Regional Office 

 (518) 486-6366

Hudson Valley Regional Office 

 (914) 245-0010

Long Island Regional Office 

 (631) 884-8530

New York City Regional Office 

 (718) 722-4544

Western Regional Office 

 (585) 344-2112, ext. 420

 

TABLE OF CONTENTS OF REGULATORY AMENDMENTS

TOPIC  

REGULATORY SECTION  

Definitions 

Section 200.1 

Board of Education Responsibilities 

Section 200.2 

Committee on Special Education 

Section 200.3 

Procedures for Referral, Evaluation, Individualized Education Program 

Section 200.4 
Due Process Procedures Section 200.5 

Program Standards for Education Programs for Students and Preschool Students with Disabilities Being Educated in Private Schools and State-Operated or State-Supported Schools

 		Section 200.7 
Educational Programs for Preschool Students with Disabilities  Section 200.16 

Procedural Safeguards for Students with Disabilities Subject To Discipline

 Sections 201.7; 201.11 
Appeals Before the Commissioner Sections 276.1; 279.3; 279.8 
Other Technical Amendments  Sections 200.6; 200.13; 200.16; 100.6

 

DEFINITIONS

Summary of Regulatory Changes

  • Amends the definition of mediator to state that an individual selected to serve as a mediator for special education must not have a personal or professional interest that would conflict with his or her objectivity and may not be an employee of a school district or program service students with disabilities.
  • Amends the definition of multiple disabilities to specify that such term applies to individuals with a combination of impairments that cause severe educational needs.

Bracketed language [  ] indicates regulatory language repealed.
Underlined language ______ indicates language added.
All other language indicates regulatory language prior to amendments.

Amendment to Section 200.1(dd) of the Regulations of the Commissioner

(dd) Mediator means a qualified and impartial individual who is trained in effective mediation techniques to resolve disputes in accordance with Education Law section 4404-a and section 200.5(h) of this Part. An individual who serves as a mediator may not have a personal or professional interest which would conflict with his or her objectivity in the mediation process and may not be an employee of a school district or program serving students with disabilities, provided that a person who otherwise qualifies to conduct mediation under section 200.5(h) of this Part shall not be deemed an employee of the State, a school district, school, or a program serving students with disabilities solely because he or she is paid by a community dispute resolution center through grant funds provided by the State Education Department to serve as a mediator.

Amendment to Section 200.1(zz)(8) of the Regulations of the Commissioner

(8) Multiple disabilities means concomitant impairments (such as mental retardation-blindness, mental retardation-orthopedic impairment, etc.), the combination of which cause such severe educational needs that they cannot be accommodated in a special education program solely for one of the impairments. The term does not include deaf-blindness.

BOARD OF EDUCATION RESPONSIBILITIES

Summary of Regulatory Changes:

Bracketed language [  ] indicates regulatory language repealed.
Underlined language ______ indicates language added.
All other language indicates regulatory language prior to amendments.


Amendment to Section 200.2(e)(1) of the Regulations of the Commissioner

Maintenance of lists

(1) the [names] name and [resumes] statement of the qualifications of [all] each impartial hearing [officers] officer who [are] is:
        (i) . . . .
        (ii) . . . .

COMMITTEE ON SPECIAL EDUCATION AND
COMMITTEE ON PRESCHOOL SPECIAL EDUCATION

Summary of Regulatory Changes:

Bracketed language [  ] indicates regulatory language repealed.
Underlined language ______ indicates language added.
All other language indicates regulatory language prior to amendments.

Amendment to Section 200.3(a)(1) of the Regulations of the Commissioner

(a) Each board of education or board of trustees shall appoint:
(1) committees on special education in accordance with the provisions of Education Law, section 4402, as necessary to ensure timely evaluation and placement of students. The membership of each committee shall include, but not be limited to:
        (i) . . . .
        (ii) . . . .
        (iii) . . . .
        (iv) . . . .
        (v) . . . .
        (vi) . . . .
        (vii) . . . .
        (viii) . . . .
         (ix) other persons having knowledge or special expertise regarding the student, including related services personnel as appropriate, as the school district or the parent(s) shall designate. The determination of knowledge or special expertise of such person shall be made by the party (parents or school district) who invited the individual to be a member of the committee on special education; and
         (x) . . . .

Amendment to Section 200.3(a)(2) of the Regulations of the Commissioner

        (2) committees on preschool education in accordance with provisions of Education Law, section 4410 to implement the provisions of section 200.16 of this Part. The membership of each committee on preschool education shall include, but not be limited to:
         (i) . . . .
         (ii) . . . .
         (iii) . . . .
         (iv) . . . .
         (v) . . . .
         (vi) . . . .
         (vii) other persons having knowledge or special expertise regarding the child, including related  services personnel as appropriate, as the school district or the parents shall designate. The determination of knowledge or special expertise of such person shall be made by the party (parents or school district) who invited the individual to be a member of the committee on preschool special education;
         (viii) . . . .
         (ix) . . . .

Amendment to Section 200.3(c) of the Regulations of the Commissioner

(c) The board of education in a city school district in a city having a population in excess of 125,000 inhabitants shall appoint subcommittees on special education to the extent necessary to ensure timely evaluation and placement of students with disabilities. Boards of education or trustees of any school district outside of a city having a population in excess of 125,000 inhabitants may appoint subcommittees on special education to assist the board of education in accordance with Education Law, section 4402(1)(b)(1)(b) and the provisions of this subdivision.
(1) . . . .
(2) The membership of each subcommittee shall include, but not be limited to:
         (i) . . . .
         (ii) . . . .
         (iii) . . . .
         (iv) . . . .
         (v) . . . .
         (vi) . . . .
         (vii) such other persons having knowledge or special expertise regarding the student, including related services personnel as appropriate, as the committee or the parent shall designate. The determination of knowledge or special expertise of such person shall be made by the party (parents or school district) who invited the individual to be a member of the subcommittee on special education; and
         (viii) . . . .

PROCEDURES FOR REFERRAL, EVALUATION,  
INDIVIDUALIZED EDUCATION PROGRAM (IEP)

Summary of Regulatory Changes:

  • Requires that the individual evaluation of a preschool child include relevant functional and developmental information regarding the child’s abilities and needs relating to participation in age-appropriate activities.
  • Specifies that a student with a disability must be reevaluated at least once every three years, but more often if conditions warrant a reevaluation or if the student’s parent or teacher requests a reevaluation.
  • Requires that materials and procedures used to assess a student with limited English proficiency be 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.
  • Requires present level of performance statements and projected long-term adult outcome statements relating to a student’s transition needs on the individualized education program (IEP) of each student with a disability beginning at age 15 (or at a younger age, if determined appropriate).
  • Clarifies that a student with a disability remains eligible to receive special education services even if the student is advancing from grade to grade.
  • Requires that, once a student’s IEP has been developed, the school must provide the recommended special education services and make a good faith effort to assist the student to achieve his or her IEP goals and objectives.
  • Requires that, whenever the CSE or CPSE meets to review and, if appropriate, revise a student’s IEP, it must consider the strengths of the student, the concerns of the parents, the results of the most recent evaluation, the results of any general State or districtwide tests and other factors unique to the student’s disability.

Bracketed language [  ] indicates regulatory language repealed.
Underlined language ______ indicates language added.
All other language indicates regulatory language prior to amendments.

Amendment to Section 200.4(b)(1) of the Regulations of the Commissioner

(b) Individual evaluation. (1) Unless a referral is withdrawn pursuant to paragraph (a) (7) or (9) of this section, an individual evaluation of the referred student shall be initiated by a committee on special education and shall include a variety of assessment tools and strategies, including information provided by the parent, to gather relevant functional and developmental information about the student and information related to enabling the student to participate and progress in the general education curriculum (or for a preschool child, to participate in appropriate activities). The individual evaluation must be at no cost to the parent, and the initial evaluation must include at least:
         (i) . . . .
         (ii) . . . .
         (iii) . . . .
        (iv) . . . .
        (v) . . . .

Amendment to Section 200.4(b)(4) of the Regulations of the Commissioner

(4) A committee on special education shall arrange for an appropriate reevaluation of each student with a disability if conditions warrant a reevaluation, or if the student’s parent or teacher requests a reevaluation, but at least once every three years 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 reviewing and, as appropriate, revising the student’s IEP.

Amendment to Section 200.4(b)(6) of the Regulations of the Commissioner

(6) School districts shall ensure that:
        (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.

Amendment to Section 200.4(c)(4) of the Regulations of the Commissioner

(4) 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.

Amendment to Section 200.4(d)(2)(i)(c) of the Regulations of the Commissioner

(c) for students age 15 (and at a younger age, if determined appropriate), a statement of the student’s needs, taking into account the student’s preferences and interests, as they relate to transition from school to post-school activities as defined in section 200.1(fff).

Amendment to Section 200.4(d)(2)(ix) of the Regulations of the Commissioner

(ix) provide, for those students age 15 (and at a younger age, if determined appropriate) a statement of the student’s projected post-school outcomes, based on the student’s needs, preferences, and interests, in the areas of employment, post secondary education, and community living and a statement of the needed transition services as defined in section 200.1(fff) of this Part including a statement of the responsibilities of the school district and, when applicable, participating agencies for the provision of such services and activities that promote movement from school to postschool opportunities, or both, before the student leaves the school setting. Needed activities shall be provided in each area specified in section 200.1(fff)(1) through (4) and, as appropriate, (5) of this Part;


Amendment to Section 200.4(e)(7) of the Regulations of the Commissioner

(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 goals and objectives or benchmarks listed in the student’s IEP.

Amendment to Section 200.4(f)(1) of the Regulations of the Commissioner

(1) [The annual review] 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. Such review shall:

        (i) consider the strengths of the student, the concerns of the parents for enhancing the education of their child, the results of the initial or most recent evaluation of the student, the results of the student’s performance on any general State or district-wide assessment programs, the special factors described in paragraph (3) of subdivision (d) of this section, the educational progress and achievement of the student with a disability and the student’s ability to participate in instructional programs in regular education and in the least restrictive environment; and
         (ii) upon consideration of the factors in subparagraph (a) of this paragraph, revise the IEP as appropriate to address:
             (a) . . . .
             (b) . . . .
             (c) . . . .
             (d) . . . .

DUE PROCESS PROCEDURES

Summary of Regulatory Changes:
  • Repeals the statement that parental consent is not required for a functional behavioral assessment that is conducted when a student’s behavior(s) result in disciplinary suspensions or removals for more than 10 school days in a school year.
  • Clarifies that if a parent refuses consent for an initial or reevaluation, a district may pursue those evaluations through due process procedures (mediation or an impartial hearing).
  • Clarifies that, if a parent refuses to give written consent, the district may not deny the parent or child any other services, benefit, or activity of the school district, except for the conditions for which consent is required.
  • Requires the school to keep a detailed record of its attempts and the results of those attempts to arrange a mutually agreed on time and place so that the parent(s) of the student can participate in CSE meetings.
  • Specifies that mediation is a cost to the State.
  • Adds cross-citations relating to the timelines when a decision in an impartial hearing must be rendered for impartial hearings related to preschool students and for expedited impartial hearings.
  • Requires that the record and the findings of fact and the decision in an impartial hearing be provided at no cost to the parents.
  • Specifies that any party aggrieved by the findings of fact and the decisions of an impartial hearing officer may appeal to a State Review Officer (SRO) of the State Education Department.
  • Requires that a copy of the written decision of the SRO, or at the option of the parents, electronic findings of fact and the decisions be mailed to each of the parties.
  • Establishes that a written complaint to the State Education Department must be received within one year of the date of the alleged violation unless a longer period is reasonable because the alleged violation is continuing or the complainant is requesting compensatory services for a violation that occurred not more than three years prior to the date that the written complaint is received.
  • Repeals the language that a school must appoint a surrogate parent at least through the time of the first periodic review of the student’s educational placement and replaces it with language that clarifies that a surrogate parent must be appointed for a student for as long as a surrogate parent is required.

Bracketed language [  ] indicates regulatory language repealed.
Underlined language ______ indicates language added.
All other language indicates regulatory language prior to amendments.

Amendment to Section 200.5(b)(1) of the Regulations of the Commissioner

(b) Consent. (1) Written consent of the parent, defined in section 200.1(l) of this Part, is required:
             (i) prior to conducting an initial evaluation or reevaluation, except that:
                     (a) parental consent is not required before reviewing existing data as part of an evaluation or a      reevaluation or administering a test or other evaluation that is administered to all students unless, before administration of that test or evaluation, consent is required of parents of all students. [Parental consent is not required for a functional behavioral assessment that is conducted to meet the requirements of Part 201 of this Title;]
                     (b) . . . .
                     (c) . . . .
             (ii) . . . .
             (iii) . . . .
             (iv) . . . .
             (v) . . . .
(2) If the parents of a student with a disability refuse consent for an initial evaluation or reevaluation, the school district may continue to pursue those evaluations by using the due process procedures in sections 200.5(i) of this Part.
(3) A school district may not use a parent’s refusal to consent to one service or activity under paragraph (1) of this subdivision to deny the parent or child any other services, benefit, or activity of the school district, except for the conditions under paragraph (1) of this subdivision for which consent is required.


Amendments to Section 200.5(d)(3) of the Regulations of the Commissioner

(3) A school district may conduct a CSE meeting without a parent in attendance if the school is unable to convince the parents that they should attend. In this case, the school must have a detailed record of its attempts, and the results of those attempts to arrange a mutually agreed on time and place.

Amendment to Section 200.5(h)(4) of the Regulations of the Commissioner

(4) Mediation, including meetings with the parent(s) described in paragraph (2) of this subdivision, shall be provided by community dispute resolution centers through a contract with the State Education Department.


Amendment to Section 200.5(i) of the Regulations of the Commissioner

(i) Impartial hearings. (1) . . . .
         (2) . . . .
        (3) . . . .
        (4) Except as provided in paragraph (9) of subdivision (g) of section 200.16 of this Part and section 201.11 of this Title, [The] the impartial hearing officer shall render a decision, and mail a copy of the written, or at the option of the parents, electronic findings of fact and the decision to the parents, to the board of education, and to the Office of Vocational and Educational Services for Individuals with Disabilities (VESID) of the State Education Department, not later than 45 days after the receipt by the board of education of a request for a hearing or after the initiation of such a hearing by the board. The record of the hearing and the findings of fact and the decision shall be provided at no cost to the parents. All personally identifiable information shall be deleted from the copy forwarded to VESID.
                 (i) . . . .
                (ii) . . . .

Amendment to Section 200.5(j) of the Regulations of the Commissioner

(j) Appeal to a State review officer of the State Education Department. (1) [A review of the decision of a hearing] Any party aggrieved by the findings of fact and the decisions of an impartial hearing officer rendered in accordance with subdivision (i) of this section may [be obtained by either the parent or the board of education by an] appeal to a State review officer of the State Education Department. Such a review shall be initiated and conducted in accordance with the provisions of Part 279 of this Title.
            (2) The State review officer must ensure that, not later than 30 days after the receipt of a request for a review, a final decision is reached and a copy of the written decision, or at the option of the parents, electronic findings of fact and the decisions, is mailed to each of the parties, except that a State review officer may grant specific extensions of time beyond the periods set out in this paragraph at the request of either [the school district or the parent] party. The reason for the extension must be documented in the record.
            (3) . . . .


Amendment to Section 200.5(k)(1)(iii)(a) of the Regulations of the Commissioner

(a) The complaint must be received within one year of the date of the alleged violation, except that the one-year limitation shall not apply upon a finding that:
       (1) a longer period is reasonable because the alleged violation is continuing; or
       (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.


Amendment to Section 200.5(m)(3)(iv) of the Regulations of the Commissioner

(iv) [The] A surrogate parent shall be assigned to represent the student in all matters relating to the identification, evaluation, and educational placement of the student and the provision of a free appropriate public education to the student [at least through the time of the first periodic review of the student’s educational placement] for as long as a surrogate parent is required under this Part.

PROGRAM STANDARDS FOR EDUCATION PROGRAMS FOR 
STUDENTS AND PRESCHOOL STUDENTS WITH DISABILITIES BEING EDUCATED IN PRIVATE SCHOOLS AND STATE-OPERATED OR STATE–SUPPORTED SCHOOLS


Summary of Regulatory Changes:

  • Specifies that the code of conduct developed by approved private schools (including approved preschool programs), State-operated schools and State-supported schools must include, but is not limited to:
  • a bill of rights and responsibilities of students which focuses upon positive student behavior, and which shall be publicized and explained to all students on an annual basis;
  • a discipline code for student behavior setting forth prohibited student conduct and the range of penalties which may be imposed for violation of such code, which shall be publicized and explained to all students and provided in writing to all parents on an annual basis. Such code shall describe the roles of teachers, administrators, board of education members, and parents;
  • strategies and procedures for the maintenance and enforcement of public order on school property which shall govern the conduct of all persons on school premises, in accordance with section 2810 of the Education Law and accepted principles of due process of law;
  • procedures within each building to involve pupil service personnel, administrators, teachers, parents and students in the early identification and resolution of discipline problems. For students identified as having a disability, such policy shall include procedures for determining when a student’s conduct shall constitute a reason for referral to the CSE or CPSE for review and, if appropriate, modification of the student’s IEP;
  • disciplinary measures for violation of the school policies appropriate to the seriousness of the offense and where applicable to the previous disciplinary record of the student. Any suspension from attendance upon instruction may be imposed only in accordance with section 3214 of the Education Law; and
  • guidelines and programs for in-service education programs for all district staff members to ensure effective implementation of school policy on school conduct and discipline.

Bracketed language [  ] indicates regulatory language repealed.
Underlined language ______ indicates language added.
All other language indicates regulatory language prior to amendments.

Amendments to Section 200.7(b)(3) of the Regulations of the Commissioner

(3) School conduct and discipline. An approved private school, a State-operated school, and a State-supported school shall develop a school conduct and discipline policy. [in accordance with] The content of such policy shall be consistent with the provisions of clauses (a-d), (f), and (g) of subparagraph (i) of paragraph (1) of section 100.2(l) of the regulations of the commissioner. The discipline of students with disabilities attending any school governed by this section shall be consistent with Part 201 of this Title.

EDUCATIONAL PROGRAMS FOR PRESCHOOL
 STUDENTS WITH DISABILITIES

Summary of Regulatory Changes:
  • Repeals the authority of the CPSE to extend the 30-day timelines to complete the individual evaluation of a preschool child in the event the CPSE exercises its discretion to obtain another evaluation of the child from another approved evaluator and the parents withdraw consent for another evaluation or otherwise choose not to have their child further evaluated.
  • Corrects cross citation to the definitions of full day preschool program.

Bracketed language [  ] indicates regulatory language repealed.
Underlined language ______ indicates language added.
All other language indicates regulatory language prior to amendments.


Amendment to Section 200.16(c)(3) of the Regulations of the Commissioner

(3) Prior to making any recommendation that would place a child in an approved program owned or operated by the same agency which conducted the initial evaluation of the child, the committee may exercise its discretion to obtain an evaluation of the child from another approved evaluator. [If the committee does exercise its discretion to obtain another evaluation of the child from another approved evaluator and the parents withdraw consent for another evaluation, or otherwise choose not to have their child further evaluated, the committee shall inform the parents that the committee cannot proceed with the process to review the child's needs within the timelines established pursuant to this Part until such time as the additional evaluation has been completed.]


Amendment to Section 200.16(h)(3)(iii) of the Regulations of the Commissioner

(iii) Special classes shall be provided on a half-day or full-day basis pursuant to [section] sections 200.1 (p), (q) and (v) of this Part and in accordance with section 200.6 (g)(2) and (3) or section 200.9(f)(2)(x) of this Part and shall assure that:

(a) . . . .

(b) . . . .

(c) . . . .

PROCEDURAL SAFEGUARDS FOR STUDENTS WITH DISABILITIES SUBJECT TO DISCIPLINE

Summary of Regulatory Changes:
  • Repeals the requirement that the building principal must have been delegated by the board of education with authority to suspend students.
  • Requires that, in reviewing a decision with respect to whether a student’s behavior is related to his or her disability (manifestation determination), an impartial hearing officer must determine if the student’s IEP and placement were appropriate and the special education services, supplementary aids and services and behavioral intervention strategies were provided consistent with the student’s IEP and placement; that the student’s disability did not impair the ability of the student to understand the impact and consequences of the behavior subject to disciplinary action; and the student’s disability did not impair the ability of the student to control the behavior subject to disciplinary action.
  • Requires that a copy of the written, or at the option of the parents, electronic findings of fact and the decision in an expedited impartial hearing be provided 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.

Bracketed language [  ] indicates regulatory language repealed.
Underlined language ______ indicates language added.
All other language indicates regulatory language prior to amendments.

Amendment to Section 201.7(b) of the Regulations of the Commissioner

(b) Five school day suspension or removal. Except as otherwise provided in subdivision (d) of this section, the trustees or board of education of any school district, a district superintendent of schools or a building principal [delegated] with authority to suspend students pursuant to Education Law section 3214(3)(b) and (g), shall have authority to order the placement of a student with a disability into an appropriate interim alternative educational setting, another setting or suspension for a period not to exceed five consecutive school days, and not to exceed the amount of time that a nondisabled student would be subject to suspension for the same behavior.


Amendment to Section 201.11(a)(3) of the Regulations of the Commissioner

(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

 

Amendment to Section 201.11(c) of the Regulations of the Commissioner

(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 the written, or at the option of the parents, electronic findings of fact and the decision to the [parties] 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.

APPEALS BEFORE THE COMMISSIONER

Summary of Regulatory Changes:

  • Corrects the cross citation in Part 276 to the regulations in Part 200 relating to appeals to the State Review Officer.
  • Amends the content of the notice for appeals to the State Review Officer (SRO) and adds a statement that the decision of the SRO must be based solely on the record before the SRO and is final, unless an aggrieved party seeks judicial review.
  • Specifies that the SRO may seek additional oral testimony or documentary evidence if the SRO can determine if evidence is necessary.
  • Requires that any hearings for the purpose of taking additional evidence will be conducted before the SRO at a time and place which is reasonably convenient to the parties, and procedures at such hearings shall be consistent with the requirements of impartial hearings.
  • Corrects a cross citation to Section 200.5(l) relating to pendency.

Bracketed language [  ] indicates regulatory language repealed.
Underlined language ______ indicates language added.
All other language indicates regulatory language prior to amendments.

Amendment to Section 276.1(c) of the Regulations of the Commissioner

(c) The provisions of this section shall not apply to appeals brought pursuant to section 4404 of the Education Law seeking review of a determination of an impartial hearing officer. The provisions of subdivision 4 of section 4404 of the Education Law and section [200.5(a)(2)(iii)] 200.5(l) of the Regulations of the Commissioner of Education shall apply exclusively in such appeals. A determination of pendency pursuant to [Education Law] subdivision 4 of section 4404 of the Education Law shall be made in writing, in the first instance, by the impartial hearing officer and may be reviewed by a State review officer.


Amendments to Section 279.3 of the Regulations of the Commissioner

3. Notice with petition.
             Each petition must contain the following notice:
             Notice:
             You are hereby required to appear in this review and to answer the allegations contained in this petition. Your answer must conform with the provisions of the regulations of the Commissioner of Education relating to reviews of this nature, copies of which are available from the Office of Counsel, New York State Education Department, State Education Building, Albany, NY 12234.
             [If an answer is not served and filed in accordance with the provisions of such regulations, the statements contained in the petition will be deemed to be true statements, and a decision will be rendered thereon by a State review officer of the State Education Department.]
             Please take notice that such regulations require that an answer to the petition must be served upon the petitioner, or if petitioner is represented by counsel, upon such counsel, within 10 days after the service of the petition for review, and that a copy of such answer must, within 2 days after such service, be filed with the Office of Counsel, New York State Education Department, State Education Building, Albany, NY 12234.
             The decision of the State review officer shall be based solely on the record before the State review officer and shall be final, unless an aggrieved party seeks judicial review.


Amendments to Section 279.8 of the Regulations of the Commissioner

(a) Oral argument. [Oral argument before a State review officer of the State Education Department by the parties will not be permitted.] In the event that a State review officer determines that [additional oral evidence] oral argument is necessary, the State review officer shall direct that [a hearing] such argument be [held to receive such additional evidence. Hearings for the purpose of taking additional oral evidence will be conducted before the State review officer] heard at a time and place which is reasonably convenient to the [parents and the student involved] parties.

            (b) Additional evidence. The State review officer may seek additional oral testimony or documentary evidence if the State review officer determines that such additional evidence is necessary. Hearings for the purpose of taking additional evidence will be conducted before the State review officer at a time and place which is reasonably convenient to the parties, and procedures at such hearings shall be consistent with the requirements of section 200.5(i)(3) of this Title.

            (c) Stay of proceedings. The provisions of section 276.1 of this Title regarding stay of proceedings shall not apply to appeals brought pursuant to section 4404 of the Education Law seeking review of a determination of an impartial hearing officer. The provisions of subdivision 4 of section 4404 of the Education Law and section [200.5(a)(2)(iii)] 200.5(l) of this Title shall apply exclusively in such appeals. A determination of pendency pursuant to subdivision 4 of section 4404 of the Education Law shall be made in writing, in the first instance, by the impartial hearing officer and may be reviewed by a State review officer.

            [c] (d) Interim determinations. Appeals from an impartial hearing officer’s ruling, decision or refusal to decide an issue prior to or during a hearing shall not be permitted, with the exception of a pendency determination made pursuant to subdivision 4 of section 4404 of the Education Law. However, in an appeal to the State review officer from a final determination of an impartial hearing officer, a party may seek review of any interim ruling, decision or refusal to decide an issue.

OTHER TECHNICAL AMENDMENTS

Summary of Regulatory Changes

  • Replaces all references to parent education that may be provided to students in special classes, students with autism and preschool students with disabilities with the term parent counseling and training. Parent counseling and training is defined in section 200.1(kk) of the Regulations of the Commissioner as assisting parents in understanding the special needs of their child; providing parents with information about child development; and helping parents to acquire the necessary skills that will allow them to support the implementation of their child’s individualized education program.
  • Corrects the cross-citation to the definition of student with a disability related to local certificates that may be awarded to a student with a disability.

Bracketed language [  ] indicates regulatory language repealed.
Underlined language ______ indicates language added.
All other language indicates regulatory language prior to amendments.

Amendment to Section 200.6(g)(8) of the Regulations of the Commissioner

(8) For parents of students placed in special classes described in subparagraphs (4)(ii) and (iii) of this subdivision, provision shall be made for parent counseling [or education] and training as defined in section 200.1(kk) of this Part for the purpose of enabling parents to perform appropriate follow-up intervention activities at home.

Amendment to Section 200.13(d) of the Regulations of the Commissioner

(d) Provision shall be made for parent counseling and [education] training as defined in section 200.1(kk) of this Part for the purpose of enabling parents to perform appropriate follow-up intervention activities at home.

Amendment to Section 200.16(d)(3)(v) of the Regulations of the Commissioner

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

Amendment to Section 100.6 of the Regulations of the Commissioner

(6) Local certificates.
Except as provided in subdivision (f) of this section, a school district or the principal of a nonpublic school may award a certificate to a student with a disability, as defined in section 200.1 [(cc)] (zz) of this Title, in accordance with the following provision:
(a)  . . . .
(b) A student with a disability [,] may be awarded a local certificate, provided that:
         (1) . . . .
         (2) [unless identified as meeting all the criteria of section 200.1 (cc) (4) of this Title,] such student has attended school for at least 13 years, excluding kindergarten, or has received a substantially equivalent education in accordance with section 3204 (2) of the Education Law for such period of time.
(c) . . . .
(d) . . . .
(e) . . . .
(f) . . . .