Special Education

Overview of the Annual Performance Report Development:

See Overview of the Development of the Annual Performance Report (APR) in the Introduction section, page 1.

Monitoring Priority: FAPE in the LRE

Indicator 12:  Percent of children referred by Part C prior to age 3, who are found eligible for Part B, and who have an individualized education program (IEP) developed and implemented by their third birthdays.
(20 U.S.C. 1416(a)(3)(B))

Measurement*:

  1. # of children who have been served in Part C and referred to Part B for eligibility determination. Students whose third birthday occurs after August 31 following the full school year for which data are reported are excluded from this number.
  2. # of those referred determined to be NOT eligible and whose eligibility was determined prior to their third birthdays.
  3. # of those found eligible who have an IEP developed and implemented by their third birthday.
  4. # of children for whom parent(s) refusal to provide consent caused delays in evaluation or initial services or to whom exceptions under 34 CFR §300.301(d) applied.
  5. # of children determined to be eligible for early intervention services under Part C less than 90 days before their third birthdays.*
  6. # of children whose parent(s) chose to continue their child in Early Intervention (EI) Program.** 1
  7. # of children who moved, # of children who died,  # of children who started receiving services on the recommended program’s beginning date even though it was after the child’s third birthday.**

*Note: In March 2009, the United States Department of Education (USDOE) added category (e) to the Measurement.
**Note: In 2008-09, NYS added f and g to the measurement to be consistent with NYS requirements.

Account for children included in a, but not included in b, c, d, e, f or g.  Indicate the range of days beyond the third birthday when eligibility was determined and the IEP developed and the reasons for the delays.

Percent = [(c) divided by (a – b – d – e - f - g)] times 100.

Data Source:

NYS collects data for this indicator via the Student Information Repository System (SIRS) and verifies these data by displaying them in a VR12 report, which was developed in the PD Data System.  SIRS is NYS' individual student data reporting system.

Federal Fiscal Year (FFY) Measurable and Rigorous Target
FFY 2012
(2012-13 school year)
100 percent of children referred by Part C prior to age 3, who are found eligible for Part B, will have an IEP developed and implemented by their third birthday or in compliance with timelines established in State law.

Actual Target Data for FFY 2012:

In FFY 2012, 82.4 percent of children referred from Part C had their eligibility for Part B determined and an IEP implemented by their third birthday or in compliance with timelines established in State law.

NYS’ Method Used to Collect Data

Beginning with the 2007-08 year, NYS collects data for this indicator from a representative sample of school districts (that includes New York City (NYC) each year) via SIRS and verifies these data by displaying them in a VR12 report, which was developed in the PD Data System.  SIRS is NYS’ individual student data reporting system.  School districts report the date of referral, date of written parent consent for an initial evaluation, date of the CPSE meeting to determine eligibility and date the IEP is implemented.  Reasons for delays are collected for children whose eligibility determination is not made or whose IEPs are not implemented by their third birthday.  Some reasons are considered to be in compliance with State requirements and other reasons are not in compliance.  Each school district’s compliance rate is calculated.

The State verifies that each school district whose compliance rate is less than 100 percent completes any remaining eligibility determinations and implements any remaining IEPs.  The State also requires documentation that the school district complies with the timelines associated with this indicator.

Children referred from Part C who had their eligibility for Part B determined or IEP implemented by their 3rd birthday
  FFY 2011 FFY 2012
a.  Number of children who have been served in Part C and referred to Part B for Part B eligibility determination (Students whose 3rd birthday is after August 31 after the full school year for which data are reported are excluded from this number.) 2,603 2,204
b.  Number of those referred determined to be NOT eligible and whose eligibility was determined prior to third birthday 130 120
c.  Number of those found eligible who have an IEP developed and implemented by their third birthdays 461 168
d.  Number for whom parent refusals to provide consent caused delays in evaluation or initial services or to whom exceptions under 34 CFR §300.301(d) applied 440 411
e.  Number of children who were determined to be eligible for Part C less than 90 days before their third birthdays 4 28
f.   Number of children whose parents chose to continue their child in EI Program 1,412  
g.  Number of children who either moved (18), # of children who died (0), # of children who started receiving services on the recommended program’s beginning date, even though it was after the child’s third birthday (89) 90 107
Number in a but not in b, c, d, e, f or g. 66 36
Percent of children referred by Part C prior to age 3 who are found eligible for Part B, and who have an IEP developed and implemented by their third birthdays
Percent = [(c) / (a-b-d-e-f-g)] * 100
87.5% 82.4%

Account for Children Included in a, but not in b, c, d, e, f or g in the above table:

In FFY 2012, there were 36 students for whom there were delays in implementing the IEP or determining eligibility for Part B services for reasons that are not in compliance with State requirements.  The chart below provides reasons for the delays and the extent of delays.

Reasons for Delays Number of Children by Number of Days of Delay in Developing an IEP by Third Birthday or Determining Eligibility for Preschool Special Education in FFY 2012 Unknown Total Percent
Of
Total
1-10 11-20 21-30 Over 30
An approved evaluator was not available to provide an evaluation. 1 0 0 2 0 3 8.3%
Additional evaluations were requested outside of the required timeline. 0 0 0 2 0 2 5.6%
There were evaluator delays in completing the evaluation. 0 2 0 3 0 5 13.9%
Delays in scheduling the CPSE meetings 1 2 1 21 0 25 69.4%
The recommended Part B services were not available when child turned three years of age. 0 0 1 0 0 1 2.8%
Inaccurate or incomplete data         0 0 0%
Total 2 4 2 28 0 36 100%
Percent of Total 5.6% 11.1% 5.6% 77.8% 0%

Discussion of Improvement Activities Completed and Explanation of Progress or Slippage that occurred for FFY 2012:

Explanation of Progress or Slippage:

NYS did not meet its target for this Indicator.  The percent of children referred by Part C prior to age 3, who were found eligible for Part B, and who had an IEP developed and implemented by their third birthday or in compliance with timelines established in State law decreased by 4.1 percentage points (87.5 percent in FFY 2011-12 to 82.4 percent in 2012-13). 

NYS’ data are collected from a different selection of school districts that is representative of the State each year.  The only school district included in each year’s sample is NYC.  Of the 2,204 children who have been served in Part C and referred to Part B for Part B eligibility determination, 1,145 (52 percent) were NYC referrals.

In terms of actual number of students who did not receive timely evaluations, NYS showed significant improvement.  In FFY 2012, the number of NYC students who did not have their IEPs implemented by their 3rd birthdays or in accordance with State timelines because of reasons that were determined to be for reasons not in compliance with State requirements was 36.  In FFY 2011, the number was 66. 

There was a significant increase in FFY 2012 in the numbers of students who did not have their IEPs timely implemented due to reasons that were determined to be ‘in compliance’ (see explanation below regarding Hurricane Sandy), resulting in the need to exclude these numbers from the calculation rate (numerator and denominator).  The percent of delays for compliant reasons represented 90 percent of all referrals.  When these were excluded from the compliance rate calculation, the percent of referrals that were due to noncompliant reasons actually decreased from 3.1 percent in FFY 2011 to 2.6 percent in FFY 2012.

Delays in evaluations and placements that were directly impacted by the effects of Hurricane Sandy were counted as ‘compliant reasons’.  In the fall of 2012, Hurricane Sandy caused extensive devastation of property and infrastructure damage to many communities in NYS.  Many schools were temporarily closed, many students were temporarily displaced from their residences from one school district to another school district and many families became temporarily homeless.  Schools, particularly in the Long Island, lower Hudson Valley and NYC regions, were significantly impacted by the storm.  These are among the most populated regions of NYS.  In NYC alone, 57 schools received extensive damage and some remained closed for an extended period.  As a result, many school districts were not able to meet the timelines for timely initial evaluations.  Therefore, as with Indicator 11, NYS requests consideration by the Office of Special Education Programs (OSEP) of the effect of Hurricane Sandy on results for this indicator. 

In response to a request from the State Education Department (SED) for flexibility in light of damage caused to some NY school districts by Hurricane Sandy, Melody Musgrove, Director of OSEP indicated that “it would be reasonable for New York to establish a different timeframe for completing evaluations of all children suspected of having a disability in those LEAs whose operations have been significantly affected by Hurricane Sandy.” With regard to IEP implementation, Dr. Musgrove stated that 34 CFR §300.323(c) provides some flexibility to local educational agencies (LEAs) that were affected by Hurricane Sandy to implement IEPs “as soon as possible” (letter from OSEP dated November 20, 2013). 

NYS responded with guidance to schools that the State would not issue findings of noncompliance to a school district because of its failure to meet these requirements when it is evident that the failure was a direct result of the State disaster emergency.  The guidance also clarified that it was expected that school districts would use such flexibility only to the extent and for the duration absolutely necessary and consistent with the conditions they were facing to bring normalcy back to the education programs for their students with disabilities. 

In addition to Hurricane Sandy, delays in the evaluation and placement of preschool students is impacted by personnel shortages of bilingual personnel, particularly in NYC and the other Big Four cities.  The State and NYC are implementing court settlement actions under the Jose P. court case relating to availability of professionals in personnel shortage areas (e.g., speech and language and bilingual evaluators).

Improvement Activities Completed in 2012-13

  • The Office of Special Education participated in technical assistance activities offered through the Northeast Regional Resource Center and the National Early Childhood Technical Assistance Center (NECTAC) to further inform its activities to improve transition from Part C EI programs to Part B preschool special education programs.
  • Links to federal and State technical assistance resources were also included in the notifications to district personnel for noncompliance findings.  The link for NECTAC (http://www.nectac.org/external link) was among the resources listed.
  • NYS provided guidance to school districts impacted by the effects of Hurricane Sandy.  See http://usny.nysed.gov/hurricane-sandy.html
  • To improve timely correction of noncompliance, the Office of Special Education continued the use of electronic notices, sent to school districts at three-month intervals, as a reminder of the noncompliance that needs to be corrected and the next steps that will be taken by the Office of Special Education should timely correction not occur.  SED monitoring staff receive copies of the electronic notices and take appropriate proactive measures, including direct follow-up upon a finding that noncompliance was not corrected within nine months.
  • Forty (40) regional three-day trainings were conducted for chairpersons of CPSEs, which included specific training on the timelines and process for evaluations, eligibility and IEP development. 
  • Staff from the Office of Special Education represented the Commissioner of Education in meetings of the State Early Intervention Coordinating Council (EICC).  The EICC advised the Part C agency (the NYS Department of Health (DOH)) on required early intervention activities, including the transition of children from Part C to Part B.

Correction of FFY 2011 Findings of Noncompliance (if State reported less than 100 percent compliance in its FFY 2011 APR)
Level of compliance (actual target data) State reported for FFY 2011 for this indicator:  87.5%

  1. Number of findings of noncompliance the State made during FFY 2011 (the period from July 1, 2011 through June 30, 2012)  
11
  1. Number of FFY 2011 findings the State verified as timely corrected (corrected within one year from the date of notification to the local educational agency (LEA) of the finding)  
9
  1. Number of FFY 2011 findings not verified as corrected within one year [(1) minus (2)]
2
Correction of FFY 2011 Findings of Noncompliance Not Timely Corrected (corrected more than one year from identification of the noncompliance):
  1. Number of FFY 2011 findings not timely corrected (same as the number from (3) above) 
2
  1. Number of FFY 2011 findings the State has verified as corrected beyond the one-year timeline (“subsequent correction”)
2
  1. Number of FFY 2011 findings not yet verified as corrected [(4) minus (5)]
 0

Actions Taken if Noncompliance Found Is Not Corrected:
All findings of noncompliance from FFY 2011 have been corrected.

Verification of Correction (either timely or subsequent):
For all noncompliance identified in FFY 2011 that has been corrected, NYS has verified that each LEA with noncompliance identified for this Indicator: (1) is correctly implementing 34 CFR §300.124(b) (i.e., achieved 100 percent compliance) based on a review of updated data such as data subsequently collected through on-site monitoring or a State data system; and (2) has developed and implemented the IEP, although late, for any child for whom implementation of the IEP was not timely, unless the child was no longer within the jurisdiction of the LEA, consistent with OSEP Memo 09-02.

Describe the specific actions that the State took to verify the correction of findings of noncompliance identified in FFY 2011:

The State verified the correction of noncompliance by requiring submission of the specific date that the student’s IEP was implemented, although late, for each individual student whose IEP implementation was not timely.  To verify the correction of noncompliance for all students through the review of subsequent data demonstrating compliance, the districts were required to report to the State the percent of students who had a timely evaluation over a specified period of time. See http://www.p12.nysed.gov/sedcar/forms/vr/1112/html/verif12.htm.

Correction of Remaining FFY 2010 Findings of Noncompliance (if applicable)

  1. Number of remaining FFY 2010 findings noted in the Office of Special Education Program's (OSEP) July 2013 FFY 2011 APR response table for this indicator 
1
  1. Number of remaining FFY 2010 findings the State has verified as corrected
1
  1. Number of remaining FFY 2010 findings the State has not verified as corrected [(1) minus (2)]
0

Verification of Correction of Remaining FFY 2010 findings:

For all noncompliance identified in FFY 2010 that has been corrected, NYS has verified that each LEA with noncompliance identified for this indicator:  (1) is correctly implementing 34 CFR §300.124(b) (i.e., achieved 100 percent compliance) based on a review of updated data such as data subsequently collected through on-site monitoring or a State data system; and (2) has developed and implemented the IEP, although late, for any child for whom implementation of the IEP was not timely, unless the child was no longer within the jurisdiction of the LEA, consistent with OSEP Memo 09-02.

Describe the specific actions that the State took to verify the correction of findings of noncompliance identified in FFY 2010:

The State verified the correction of noncompliance by requiring submission of the specific date that the student’s IEP was implemented, although late, for each individual student whose IEP implementation was not timely.  To verify the correction of noncompliance for all students through the review of subsequent data demonstrating compliance, the districts were required to report to the State the percent of students who had a timely evaluation over specified period of time. See http://www.p12.nysed.gov/sedcar/forms/vr/1112/html/verif11.htm

Correction of Any Remaining Findings of Noncompliance from FFY 2009 or Earlier (if applicable):

NYS does not have any uncorrected noncompliance related to this indicator from FFY 2009, FFY 2008 or FFY 2007.

Additional Information Required by the OSEP APR Response Table (if applicable)

Because the State reported less than 100 percent compliance for FFY 2011, the State must report on the status of correction of noncompliance identified in FFY 2011 for this indicator. The State reported on the correction of noncompliance identified in FFY 2011.  See above.
When reporting on the correction of noncompliance, the State must report, in its FFY 2012 APR, that it has verified that each LEA with noncompliance identified in FFY 2011 for this Indicator  (1) is correctly implementing the specific regulatory requirements (i.e., achieved 100% compliance) based on a review of updated data such as data subsequently collected through on-site monitoring or a State data system; and (2) has corrected each individual case of noncompliance, unless the child is no longer within the jurisdiction of the LEA, consistent with OSEP Memo 09-02.  In the FFY 2012 APR, the State must describe the specific actions that were taken to verify the correction. The State has verified the correction of noncompliance in accordance with OSEP Memo 09-02.  See above.

Revisions, with Justification, to Proposed Targets / Improvement Activities / Timelines / Resources for FFY 2013 [If applicable]

None


1 New York State (NYS) Public Health Law, section 2541(8)(a) provides that a child’s eligibility for EI services ends as of his or her third birthday, unless the child has been referred to the Committee on Preschool Special Education (CPSE) and found eligible for preschool special education services before his or her third birthday.  Under these provisions, parents may elect to either transition the child to preschool special education or continue their child in early intervention programming beyond the third birthday until either September or January, according to the following rules: (1) If the child turns three years of age on or before the thirty-first day of August, the child shall, if requested by the parent, be eligible to receive early intervention services contained in an Individualized Family Service Plan (IFSP) until the first day of September of that calendar year; or, (2) If the child turns three years of age on or after the first day of September, the child shall, if requested by the parent and if already receiving EI services, be eligible to continue receiving such services until the second day of January of the following calendar year.  When the parent elects to continue in EI under these provisions, the CPSE would write the IEP and indicate the starting date for special education services as of September or January, respectively. In no cases may the child receive EI and preschool special education services simultaneously.

Last Updated: July 10, 2014