Policy 99-04

December 1999

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
Commissioner’s Advisory Panel for Nonpublic Schools
Impartial Hearing Officers
Community Dispute Resolution Centers
ALTA Project Directors
SETRC Project Directors and Training Specialists
State and Local Teacher Associations
ECDC Project Directors and Coordinators
Family Court Judges and Designees
Chief Elected Officials of the Counties
New York City Board of Education
Independent Living Centers
Colleges with Special Education and General Education Teacher Training
FROM: Lawrence C. Gloeckler

SUBJECT: Amendments to Conform New York State Education Law to the Individuals with Disabilities Education Act

On July 20, 1999, the Governor signed into law legislation that conforms New York State Education Law to the Individuals with Disabilities Education Act (IDEA) and the Part 300 Federal Regulations. Effective July 1999, Chapter 311 of the Laws of 1999 amends:

This memorandum provides a summary of these Education Law amendments and questions and answers relating specifically to those provisions. A copy of Chapter 311 of the Laws of 1999 is attached. The Department has proposed amendments to Part 200 of the Regulations of the Commissioner of Education to conform the State’s rules and regulations to the federal regulations.

If you have any questions about this information, please contact the Office of Vocational and Educational Services for Individuals with Disabilities (VESID), Special Education Policy Unit, at 518-473-2878 or your Regional Associate at one of the following VESID Special Education Quality Assurance Regional Offices:

Eastern Regional Office (518) 486-6366

Hudson Valley Regional Office (914) 245-0010

Long Island Regional Office (516) 884-8530

New York City Regional Office (718) 722-4544

Western Regional Office (716) 344-2112, ext. 420

Attachment

If you would like to receive notification of our publications via e-mail, register at web.nysed.gov/vesid/register.htm.

 

AMENDMENTS TO CONFORM EDUCATION LAW

TO THE INDIVIDUALS WITH DISABILITIES EDUCATION

ACT AND PART 300 OF THE FEDERAL REGULATIONS

 

TABLE OF CONTENTS

 

TOPIC

 

PAGE
Definitions Relating to Special Education 4

 

Committee on Special Education, Subcommittee on Special Education and Committee on Preschool Special Education Membership

 

6

 

 

Discipline of Students with Disabilities

 

11

 

Mediation

 

16

 

State Complaint Procedures

 

17

 

Commissioner’s Advisory Panel for Special Education Services

 

18

 

Chapter 311 of the Laws of 1999

 

APPENDIX A

 

DEFINITIONS RELATING TO SPECIAL EDUCATION

Several definitions relating to special education have been amended to ensure that Education Law conforms to IDEA and the federal regulations implementing IDEA.

Section 4002 (Article 81) of the Education Law is amended relating to the definition of "related services" to include rehabilitation counseling services, orientation and mobility services, and assistive technology services as defined under federal law.

Section 4401 (Article 89) of the Education Law is amended relating to the definitions of:

QUESTIONS AND ANSWERS RELATED TO DEFINITIONS

1. What is the federal definition of "travel training"?

Travel training means providing instruction, as appropriate, to children with significant cognitive disabilities, and any other children with disabilities who require this instruction, to enable them to develop an awareness of the environment in which they live, and learn the skills necessary to move effectively and safely from place to place within that environment (e.g., in school, in the home, at work and in the community).

2. How does "travel training" differ from "orientation and mobility services"?

"Orientation and mobility services" is defined in the federal regulations (section 300.24) as "...services provided to blind or visually impaired students by qualified personnel to enable those students to attain systematic orientation to and safe movement within their environments in school, home and community; and includes teaching students the following as appropriate:

COMMITTEE ON SPECIAL EDUCATION, SUBCOMMITTEE ON SPECIAL EDUCATION AND COMMITTEE ON PRESCHOOL SPECIAL EDUCATION MEMBERSHIP

Sections 4402 and 4410 of the Education Law are amended relating to the required members of the Committee on Special Education (CSE), the Subcommittee on Special Education and the Preschool Committee on Special Education (CPSE) as follows:

 

QUESTIONS AND ANSWERS RELATED TO COMMITTEE MEMBERSHIP

1. What are the requirements relating to the additional parent member of the Committee on Special Education and the Committee on Preschool Special Education?

Education Law continues to provide for the participation of the additional parent member on the CSE or CPSE. In selecting the parent member, the district may select a parent from its own school district or a neighboring district. The parent of the student may, at his or her discretion, decline the participation of the additional parent member in any meeting regarding his or her child. It is the responsibility of the school district to inform the parent of the student, in the meeting notice, that the parent member will participate in the CSE or CPSE meeting unless the parent of the student informs the district that he or she does not want the additional parent member present.

The additional parent member is an important required member of the Committee who provides another perspective to the multidisciplinary team. However, if the parents of the student are uncomfortable with having another parent at their child’s meeting, they now have the right to so decline. In this case, a Committee meeting that is held without the parent member present will be considered legal. In implementing this provision of law, a school district should not, under any circumstances, persuade parents to decline the participation of the additional parent member for purposes of ease in scheduling Committee meetings or arranging for parent members.

2. Can any of the required members of the Committee serve more than one role on the Committee?

The individual who can interpret the instructional implications of the evaluation results may also be serving another role on the Committee on Special Education, the Subcommittee on Special Education or the Committee on Preschool Special Education as indicated above. This individual fulfills an important role in linking evaluation results to instruction so the IEP that is developed for the student addresses what and how best to teach the student. The selection of this individual may vary from student to student, depending on the types of evaluations conducted.

For the Committee on Special Education and the Subcommittee on Special Education, the school district representative may also be the student’s special education teacher or the school psychologist, if he or she also meets the criteria for the school district representative (can provide or supervise special education and is knowledgeable about the general education curriculum and the availability of district resources). (Note that this provision does not apply to the Committee on Preschool Special Education.) Federal guidance requires that the school district representative have the authority to commit agency resources and be able to ensure that whatever services are set out in the IEP will actually be provided. (See 34 CFR 300, Question 22).

To ensure that a Committee includes the appropriate individuals with differing perspectives who can contribute to discussions about a student’s needs and recommendations to address those needs, a school district should only determine that an individual will serve more than one of the required roles on the Committee if it is in the best interest of the student to do so.

3. Does an individual with special knowledge or expertise of the student who is invited by a parent or by the school district participate in the Committee meeting for decision-making purposes?

Yes. If the parent or the school district determines that an individual has knowledge or special expertise regarding the student, that individual participates in the decision-making process along with the other required members. Prior law provided without qualification, that the parent or the school district could have other individuals as members of the Committee at the discretion of the parent or the district. Federal guidance states that, generally, any individuals such as representatives of teacher organizations or attorneys would not be appropriate members of the Committee since they would not possess knowledge or expertise regarding the child (see 34 CFR 300, Questions 28 and 29).

4. Who are the decision makers at a Committee meeting?

Any individual, including the parent of the student, who attends a meeting as a required member participates in the decision-making process. There may be other individuals who are invited to participate in a meeting (e.g., a representative of a private school or a friend of the family invited to provide support to the family). These other individuals are expected to fully participate in the discussions and contribute to the recommendations.

5. How should a Committee reach a decision?

Guidance from the U.S. Department of Education indicates that decisions made at CSE, CPSE and Subcommittee meetings are to be made based upon informed participation of all members and consensus agreement to the recommendations.

"The IEP meeting serves as a communication vehicle between parents and school personnel, and enables them, as equal participants, to make joint, informed decisions regarding the (1) child’s needs and appropriate goals; (2) extent to which the child will be involved in the general curriculum and participate in the regular education environment and State and districtwide assessments; and (3) services needed to support that involvement and participation and to achieve agreed-upon goals.... The IEP team should work toward consensus, but the public agency has ultimate responsibility to ensure that the IEP includes the services that the child needs in order to receive free appropriate public education (FAPE). It is not appropriate to make IEP decisions based upon a majority vote. ...." (emphasis added) (34 CFR 300, Question 9).

6. What are the requirements relating to the regular education teacher’s participation in IEP meetings?

At least one of the student’s regular education teachers who is or may be responsible for implementing a portion of the IEP must participate in the IEP meetings if the student is, or may be, participating in the regular education environment. The regular education teacher would participate in the development, review and revision of the student’s IEP, including assisting in (1) determining appropriate positive behavioral interventions and strategies for the student; and (2) determining supplementary aids and services, program modifications, and supports for school personnel that will be provided for the student.

Depending on the student’s needs and the purpose of the specific IEP meeting, the regular education teacher may not need to participate in all decisions made as part of the meeting, be present throughout the entire meeting, or attend every meeting. On a case-by-case basis, the school and the parent should discuss and try to reach agreement on the extent of the regular education teacher’s participation at the Committee meetings. While only one of the student’s regular education teachers is required to participate in the Committee meetings, the school district is strongly encouraged to seek input from any other teachers who will not be attending.

 

DISCIPLINE OF STUDENTS WITH DISABILITIES

Section 3214 of the Education Law has been retitled "General Procedures for Student Discipline" and a new subdivision (g) has been added relating to the discipline of students with disabilities and students presumed to have a disability for discipline purposes.

Section 4402 of the Education Law is amended regarding the duties of the Committee on Special Education (CSE) relating to the discipline of students with disabilities and students presumed to have disabilities for discipline purposes. The Commissioner of Education is authorized to develop regulations relating to a CSE’s responsibility to:

Section 4402 is amended to authorize the Commissioner to promulgate regulations establishing procedures and timelines for expedited impartial hearings in cases involving:

Section 4402 amends the pendency placement of students during due process proceedings, as follows:

 

QUESTIONS AND ANSWERS RELATED TO DISCIPLINE

Further guidance will be issued once the regulations relating to discipline have been adopted.

1. What is the federal definition of "change in placement for discipline purposes?"

Section 300.519 of the Code of Federal Regulations states that "for purposes of removals of a child with a disability from the child’s current educational placement ..., a change of placement occurs if the removal is for more than 10 consecutive school days; or the child is subjected to a series of removals that constitute a pattern because they cumulate to more than 10 school days in a school year, and because of factors such as the length of each removal, the total amount of time the child is removed, and the proximity of the removals to one another."

2. What are the federal requirements for conducting manifestation determinations?

Section 300.523 of the Code of Federal Regulations requires that immediately, if possible, but in no case later than 10 school days after the date on which the decision to take disciplinary action that constitutes a change in placement is made, a review must be conducted of the relationship between the child's disability and the behavior subject to the disciplinary action (formerly known as the "nexus review"). The Committee on Special Education (CSE) and other qualified personnel must conduct this review in a meeting. In carrying out this review, the CSE and other qualified personnel may determine that the behavior of the child was not a manifestation of the child's disability only if the CSE and other qualified personnel:

  1. First considered, in terms of the behavior subject to disciplinary action, all relevant information, including:

    2.    Then determined that in relationship to the behavior subject to disciplinary action:

If the CSE and other qualified personnel determine that any of the above standards in the manifestation review were not met, the behavior must be considered a manifestation of the child's disability. In conducting this review, if a school district identifies deficiencies in the child's IEP or placement or in its implementation, it must take immediate steps to remedy those deficiencies.

3. What is an interim alternative educational setting?

An interim alternative educational setting in which a child is placed must be selected so as to enable the child to continue to progress in the general curriculum, although in another setting, and to continue to receive those services and modifications, including those described in the child's current IEP, that will enable the child to meet the goals set out in the IEP; and must include services and modifications to address the behavior that resulted in the disciplinary action that are designed to prevent the behavior from recurring.

4. What are the federal criteria to determine if the school district had knowledge that a student was a student with a disability before the occurrence of the behavior that precipitated disciplinary action?

Section 300.527 of the Code of Federal Regulations states that a school district must be deemed to have knowledge that a student is a student with a disability if:

 

MEDIATION

Section 4404-a of the Education Law is amended to add the following requirements related to mediation:

Section 4410 of Education Law is amended to add the following requirements related to mediation:

 

STATE COMPLAINT PROCEDURES

Section 4403 of the Education Law is amended to authorize the Commissioner to adopt regulations prescribing the State complaint procedures when an individual or organization files a written complaint alleging that a public agency has violated Part B of the Individuals with Disabilities Education Act.

QUESTIONS AND ANSWERS RELATED TO STATE COMPLAINT PROCEDURES

1. What is the role of the Office of Special Education and Rehabilitative Services of the U.S. Department of Education in the investigation of complaints?

Effective July 1999, the role of the U.S. Department of Education in the review of State complaints was eliminated. Therefore, all complaints must be resolved at the State level.

2. What recourse does a parent or a school district have if they disagree with the results of the complaint investigation?

The results of the complaint investigation may not be appealed. However, nothing prohibits the school or the parent from requesting a due process hearing regarding the issue raised in the complaint investigation if the issue involves the rights of an individual student.

3. Can the State Education Department undertake a complaint investigation while the issues in the complaint are simultaneously in due process (i.e., impartial hearing or an appeal from an impartial hearing)?

No.

 

COMMISSIONER’S ADVISORY PANEL FOR SPECIAL EDUCATION SERVICES

Section 4403 of Education Law is amended in relation to the composition and responsibilities of the Commissioner’s Advisory Panel for Special Education Services.

Responsibilities: The responsibilities of the Commissioner’s Advisory Panel for Special Education Services are to:

 

APPENDIX A

CHAPTER 311 OF THE LAWS OF 1999