EDU-31-08-00014-RP Special Education Programs and Services

1/21/09 N.Y. St. Reg. EDU-31-08-00014-RP

NEW YORK STATE REGISTER

VOLUME XXXI, ISSUE 03

January 21, 2009

RULE MAKING ACTIVITIES

EDUCATION DEPARTMENT

REVISED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. EDU-31-08-00014-RP

Special Education Programs and Services

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following revised rule:

Proposed Action:

Amendment of sections 200.4 and 200.5 of Title 8 NYCRR.

Statutory authority:

Education Law, sections 207 (not subdivided), 4402(1-7), 4403(3) and 4410(13)

Subject:

Special education programs and services.

Purpose:

To extend date for required use of State forms for IEPs, prior written notice (notice of recommendation) and meeting notice.

Text of revised rule:

1. Paragraph (2) of subdivision (d) of section 200.4 of the Regulations of the Commissioner of Education is amended, effective April 9, 2009, as follows:

(2) Individualized education program (IEP). If the student has been determined to be eligible for special education services, the committee shall develop an IEP. IEPs developed [on or after January 1, 2009,] 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 districtwide assessment programs; and any special considerations in paragraph (3) of this subdivision. The IEP recommendation shall include the following:

(i) . . .

(ii) . . .

(iii) . . .

(iv) . . .

(v) . . .

(vi) . . .

(vii) . . .

(viii) . . .

(ix) . . .

(x) . . .

(xi) . . .

(xii) . . .

2. Paragraph (1) of subdivision (a) of Section 200.5 of the Regulations of the Commissioner of Education is amended, effective April 9, 2009, as follows:

(1) Prior written notice (notice of recommendation) that meets the requirements of section 200.1(oo) of this Part must be given to the parents of a student with a disability a reasonable time before the school district proposes to or refuses to initiate or change the identification, evaluation, educational placement of the student or the provision of a free appropriate public education to the student. [Effective January 1, 2009, the prior] Prior written [notice] notices issued during the 2011-12 school year, and thereafter, shall be on [the] a form prescribed by the commissioner.

3. Paragraph (1) of subdivision (c) of Section 200.5 of the Regulations of the Commissioner of Education is amended, effective April 9, 2009, as follows:

(1) Whenever the committee on special education proposes to conduct a meeting related to the development or review of a student's IEP, or the provision of a free appropriate public education to the student, the parent must receive notification in writing at least five days prior to the meeting. The meeting notice may be provided to the parent less than five days prior to the meeting to meet the timelines in accordance with Part 201 of this Title and in situations in which the parent and the school district agree to a meeting that will occur within five days. The parent may elect to receive the notice of meetings by an electronic mail (e-mail) communication if the school district makes such option available. [Effective January 1, 2009, meeting notice] Meeting notices issued during the 2011-12 school year, and thereafter, shall be on a form prescribed by the commissioner.

Revised rule making(s) were previously published in the State Register on

October 22, 2008.

Revised rule compared with proposed rule:

Substantial revisions were made in sections 200.4(d)(2), 200.5(a)(1) and (c)(1).

Text of revised proposed rule and any required statements and analyses may be obtained from

Lisa Struffolino, State Education Department, Office of Counsel, State Education Building, Room 148, Albany, NY 12234, [phone], email: [e-mail]

Data, views or arguments may be submitted to:

Rebecca H. Cort, Deputy Commissioner, VESID, New York State Education Department, Room 1606, One Commerce Plaza, Albany, NY 12234, [phone], email: [e-mail]

Public comment will be received until:

30 days after publication of this notice.

Revised Regulatory Impact Statement

Since publication of a Notice of Revised Rule Making in the State Register on October 22, 2008, the proposed amendment has been revised as follows.

The regulations that require, commencing on January 1, 2009, the use of the State's forms for IEPs, CSE and CPSE meeting notices, and prior written notice (notice of recommendation) were adopted in September 2007. Since that date, the Department sought extensive comment from the field on the development of the forms from stakeholders across the State. In response to the comments, the regulations were amended by emergency action, effective October 28, 2008, to extend the initial effective date for required use of the forms from January 1, 2009 to September 1, 2009. Subsequently, in response to public comment, the Department is now proposing to further extend the initial effective date by requiring IEPs developed for, and meeting notices and prior written notices (notices of recommendation) issued during, the 2011-12 school year, and thereafter, be on forms prescribed by the Commission.

The above revision requires that the Needs and Benefits, Local Government Mandates and Paperwork sections of the previously published Regulatory Impact Statement be revised as follows:

NEEDS AND BENEFITS:

The proposed amendment is necessary to ensure consistency in procedural safeguards by extending the date by which school districts would be required to use the forms prescribed by the Commissioner for individualized education programs (IEPs), Committee on Special Education (CSE) and Committee on Preschool Special Education (CPSE) meeting notices and for prior written notices (notice of recommendation).

The regulations that require the use of the State's forms for IEPs, CSE and CPSE meeting notices, and prior written notice (notice of recommendation) as of January 1, 2009 were adopted in September 2007. In response to public comment, the Department is proposing to further extend the initial effective date by requiring IEPs developed for, and meeting notices and prior written notices (notices of recommendation) issued during, the 2011-12 school year be on forms prescribed by the Commission. Extending the date for the required use of these forms will allow additional time for VESID to work with stakeholders to field check proposed forms and to provide professional development on the new forms. Furthermore, the additional extension should provide the needed time for cost-effective conversion to the State's required forms and for the State to make professional development available through no-cost means such as informational materials, web-conferencing and professional development through its technical assistance networks. In addition, extending the effective date for the required use of the State forms will avoid any risk of potential disruptions to a district's policies, procedures and practices that might result if this requirement were to be made effective in the middle of the 2008-09 school year.

LOCAL GOVERNMENT MANDATES:

The proposed amendment does not impose any additional program, service, duty or responsibility upon local governments beyond those imposed by federal and State statutes and regulations. The proposed amendment will extend the initial effective date for requiring the State's forms for IEPs, prior written notice (notice of recommendation) and meeting notice.

Section 200.4 was revised to require IEPs developed for the 2011-2012 school year, and thereafter, be on a form prescribed by the Commissioner.

Section 200.5 was revised to require prior written notices (notices of recommendation) and meeting notices issued during the 2011-2012 school year, and thereafter, be on a form prescribed by the Commissioner.

PAPERWORK:

The proposed amendment will extend the initial effective date for requiring the State's forms for IEPs, prior written notice (notice of recommendation) and meeting notice, and does not impose any additional paperwork requirements.

Revised Regulatory Flexibility Analysis

Since publication of a Notice of Proposed Rule Making in the State Register on October 22, 2008, the proposed amendment has been revised as set forth in the Revised Regulatory Impact Statement submitted herewith.

The revision to the proposed amendment requires that the Compliance Requirements, Costs and Minimizing Adverse Impact sections of the Regulatory Flexibility Analysis for Small Businesses and Local Government be revised as follows:

COMPLIANCE REQUIREMENTS:

The proposed amendment will extend the date for required use of the State's forms for IEPs, prior written notice (notice of recommendation) and meeting notice, and does not impose any additional compliance requirements upon local governments beyond those imposed by federal statutes and regulations.

Section 200.4 was revised to require IEPs developed for the 2011-2012 school year, and thereafter, be on a form prescribed by the Commissioner.

Section 200.5 was revised to require prior written notices (notices of recommendation) and meeting notices issued during the 2011-2012 school year, and thereafter, be on a form prescribed by the Commissioner.

COMPLIANCE COSTS:

The proposed amendment is necessary to ensure consistency in procedural safeguards by extending the initial effective date for requiring the State's forms for individualized education programs (IEPs), prior written notice (notice of recommendation) and meeting notice, and does not impose any additional costs beyond those imposed by federal statutes and regulations and State statutes.

MINIMIZING ADVERSE IMPACT:

The proposed amendment is necessary to ensure consistency in procedural safeguards by extending the initial effective date for requiring the State's forms for individualized education programs (IEPs), prior written notice (notice of recommendation) and meeting notice, and does not impose any additional costs or compliance requirements on these entities beyond those imposed by federal law and regulations and State statutes.

The regulations that require the use of the State's forms for IEPs, CSE and CPSE meeting notices, and prior written notice (notice of recommendation) as of January 1, 2009 were adopted in September 2007. In response to public comment, the Department is proposing to further extend the effective date by requiring IEPs developed for, and meeting notices and prior written notices (notices of recommendation) issued during, the 2011-12 school year be on forms prescribed by the Commission. Extending the date for the required use of these forms will allow additional time for VESID to work with stakeholders to field check proposed forms and to provide professional development on the new forms. Furthermore, the additional extension should provide the needed time for cost-effective conversion to the State's required forms and for the State to make professional development available through no-cost means such as informational materials, web-conferencing and professional development through its technical assistance networks. In addition, extending the effective date for the required use of the State forms will avoid any risk of potential disruptions to a district's policies, procedures and practices that might result if this requirement were to be made effective in the middle of the 2008-09 school year.

Revised Rural Area Flexibility Analysis

Since publication of a Notice of Proposed Rule Making in the State Register on October 22, 2008, the proposed amendment has been revised as set forth in the Revised Regulatory Impact Statement submitted herewith.

The revision to the proposed amendment requires that the Reporting, Recordkeeping and Other Compliance Requirements and Professional Services, the Costs, and the Minimizing Adverse Impact sections of the Rural Area Flexibility Analysis be revised as follows:

REPORTING, RECORDKEEPING AND OTHER COMPLIANCE REQUIREMENTS AND PROFESSIONAL SERVICES:

The proposed amendment will extend the date for required use of the State's forms for IEPs, prior written notice (notice of recommendation) and meeting notice, and does not impose any additional compliance requirements upon rural areas beyond those imposed by federal statutes and regulations.

Section 200.4 was revised to require IEPs developed for the 2011-2012 school year, and thereafter, be on a form prescribed by the Commissioner.

Section 200.5 was revised to require prior written notices (notices of recommendation) and meeting notices issued during the 2011-2012 school year, and thereafter, be on a form prescribed by the Commissioner.

The amendment does not impose any additional professional service requirements on rural areas, beyond those imposed by federal statutes and regulations and State statutes.

COSTS:

The proposed amendment is necessary to ensure consistency in procedural safeguards by extending the date for required use of the State's forms for individualized education programs (IEPs), prior written notice (notice of recommendation) and meeting notice, and does not impose any additional costs beyond those imposed by such federal statutes and regulations and State statutes.

MINIMIZING ADVERSE IMPACT:

The proposed amendment is necessary to ensure consistency in procedural safeguards by extending the date for required use of the State's forms for individualized education programs (IEPs), prior written notice (notice of recommendation) and meeting notice, and does not impose any additional costs or compliance requirements on these entities beyond those imposed by federal law and regulations and State statutes. Since these requirements apply to all school districts in the State, it is not possible to adopt different standards for school districts in rural areas.

The regulations that require the use of the State's forms for IEPs, CSE and CPSE meeting notices, and prior written notice (notice of recommendation) as of January 1, 2009 were adopted in September 2007. In response to public comment, the Department is proposing to further extend the effective date by requiring IEPs developed for, and meeting notices and prior written notices (notices of recommendation) issued during, the 2011-12 school year be on forms prescribed by the Commission. Extending the date for the required use of these forms will allow additional time for VESID to work with stakeholders to field check proposed forms and to provide professional development on the new forms. Furthermore, the additional extension should provide the needed time for cost-effective conversion to the State's required forms and for the State to make professional development available through no-cost means such as informational materials, web-conferencing and professional development through its technical assistance networks. In addition, extending the effective date for the required use of the State forms will avoid any risk of potential disruptions to a district's policies, procedures and practices that might result if this requirement were to be made effective in the middle of the 2008-09 school year.

Revised Job Impact Statement

Since publication of a Notice of Revised Rule Making in the State Register on October 22, 2008, the proposed amendment has been revised as set forth in the Revised Regulatory Impact Statement submitted herewith.

The proposed amendment, as revised, relates to the provision of special education programs and services to students with disabilities, and is necessary to ensure consistency in procedural safeguards by extending the date for required use of the State’s forms for individualized education programs (IEPs), prior written notice (notice of recommendation) and meeting notice. Because it is evident from the nature of the revised rule that it will not affect job and employment opportunities, no affirmative steps were needed to ascertain that fact and none were taken. Accordingly, a job impact statement is not required, and one has not been prepared.

Assessment of Public Comment

Since publication of a Notice of Revised Rule Making in the State Register on October 22, 2008, the State Education Department received the following new comments that were not otherwise addressed in the Assessment of Public Comment published in the State Register.

General

1. COMMENT:

Some were concerned that the September 1 effective date would require districts to use two different formats in the same year and parents would receive two different individualized education programs (IEPs) and that changing forms in September will interfere with accurate reporting of Basic Education Data System (BEDS) data. Most commenters recommended a further delay in the implementation of the required forms. These ranged from recommendations to delay the implementation timeline to January 2010; coordinating it with annual reviews for 2009-10 school year; deferring until July 1, 2010 so that training can occur on previously scheduled conference days; delaying until September 2010 to allow for field testing, adequate training of staff prior to implementation, and software updates; postponing the date to the 2010-2011 school year to eliminate problems and unnecessary expenditures emanating from the September 1, 2009 mid-cycle change in IEP forms, to avoid districts from having to conduct costly training over the summer of 2009, to eliminate problems districts will have compiling Department mandated data directly from student IEPs; and to allow the Department time to consider the comments on the proposed forms and notices and work with constituents to develop revised documents.

DEPARTMENT RESPONSE:

Section 200.4(d) has been revised to require IEPs developed for the 2011-12 school year, and thereafter, to be on a form prescribed by the commissioner; and sections 200.5(a) and (c) have been revised to require all meeting notices and prior written notices developed during the 2011-12 school year and thereafter to be on a form prescribed by the Commissioner. The revised rule for IEP implementation would mean that IEPs developed at annual review meetings for IEPs that would be in effect during the 2011-12 school year (July 1 - June 30) would need to be on the State forms. This should clarify that, effective 2011-12, only one IEP form would be use for all students with disabilities during that school year.

2. COMMENT:

The amendment to the Regulations relating to State forms for IEPs, meeting notice and prior written notice should not be passed.

DEPARTMENT RESPONSE:

The Board of Regents acted to mandate the use of State forms based on the State's findings that IEPs varied greatly from school district to school district across the State and that many school district's IEPs did not include the information required by the Regulations of the Commissioner of Education. In addition, the State found that the CSE/CPSE meeting notices and prior written notices provided to parents did not always fully inform parents of the information they need and are entitled to have. By mandating these forms, students' IEPs will be more appropriately developed, parents will be more fully informed and school districts are more likely to meet compliance requirements.

The regulation to require use of the State's forms for IEPs, prior written notices and meeting notices were first adopted in September 2007, as part of a separate rulemaking (EDU-12-07-00004). The regulations were revised, through emergency action at the October 2008 Board of Regents meeting, to extend the effective date of the use of the forms until September 1, 2009. The rule is being further revised to require the use of the State's forms for all notices issued during the 2011-12 school year and all IEPs in effect for that school year.

3. COMMENT:

A few commenters stated that the proposed regulations had been promulgated without the benefit of a cost analysis; that considerable local (human and fiscal) resources would be required to implement the proposed forms, including cost for training of special education staff, software development and training for clerical staff; training of preschool providers will impact county costs; due to technological issues the new forms would need to be handwritten and will require more staff resources; the increased length of IEPs and parent letters will increase mailing and printing costs. One individual stated that the forms, as proposed, would result in additional paperwork and increased individualization of letters which is contradictory to the intent of the Individuals with Disabilities Education Act (IDEA) to reduce paperwork burden. Requiring the use of the State's forms will leave districts more vulnerable to legal challenges and will increase litigation costs.

DEPARTMENT RESPONSE:

The Department anticipates that the use of the State forms will have a positive benefit to inform parents of IEP meetings to encourage parent participation; to develop IEPs that are individualized to include the required components; and to fully inform parents of the proposed recommendations for their children. In addition, the use of State forms should assist school districts to be in compliance with the federal and State requirements, thereby resulting in a savings to both school districts and the State in time and resources spent for State complaints submitted to the Department for procedural noncompliance and in requests for impartial hearing decisions that are the result of substantive procedural noncompliance in areas affecting the free appropriate public education of the student.

In response to concerns requiring unintended costs relating to the length of the IEPs and professional development, the proposed State forms for IEPs, meeting notice and prior written notice only include information necessary to meet existing federal and State requirements. For school districts that were providing the required information, the State forms should not result in IEPs of increased length. The actual length of each student's IEP will vary depending on a particular student's needs to be documented and on the various printing/format options the school district may elect to use (e.g., landscape versus portrait, two-sided pages, and font size).

To offset concerns about related professional development costs, the Department will broadly disseminate informational materials, conduct web conference training accessible from desk computers, and provide professional development sessions through its technical assistance networks. While one of the IEP software companies used by school districts in this State has indicated it will not be passing on the cost of any changes related to converting their paperwork processes and computerized management, others may. For school districts that use software programs to generate IEPs, meeting notices or prior written notices, the extension of time for implementation should provide ample time for this conversion to occur in a cost effective manner.