EDU-01-12-00006-P Preschool and School-Age Individual Evaluations

1/4/12 N.Y. St. Reg. EDU-01-12-00006-P

NEW YORK STATE REGISTER

VOLUME XXXIV, ISSUE 1

January 04, 2012

RULE MAKING ACTIVITIES

EDUCATION DEPARTMENT

PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. EDU-01-12-00006-P

Preschool and School-Age Individual Evaluations

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

Proposed Action:

Amendment of sections 200.4 and 200.16 of Title 8 NYCRR.

Statutory authority:

Education Law, sections 101 (not subdivided), 207 (not subdivided), 305(1) and (2), 4402(1), 4403(3) and 4410(13)

Subject:

Preschool and School-Age Individual Evaluations.

Purpose:

Amend timeline for completion of preschool evaluations; repeal requirement of psychologist written determination for psychological assessment in reevaluation; clarify 60 day timeline for initial evaluations.

Text of proposed rule:

1. Paragraphs (1) and (2) of subdivision (b) of section 200.4 of the Regulations of the Commissioner of Education is amended, effective April 11, 2012, as follows:

(b) Individual evaluation and reevaluation. (1) Unless a referral for an evaluation submitted by a parent or a school district is withdrawn pursuant to paragraph (a)(7) or (9) of this section, after parental consent has been obtained or a parental refusal to consent is overridden, an individual evaluation of the referred student shall be initiated by a committee on special education. The initial individual evaluation shall be completed within 60 days of receipt of consent unless extended by mutual agreement of the student's parents and the CSE pursuant to subparagraph (7)(i) and paragraph (j)(1) of this subdivision. The individual evaluation shall include a variety of assessment tools and strategies, including information provided by the parent, to gather relevant functional, developmental and academic information about the student that may assist in determining whether the student is a student with a disability and the content of the student's individualized education program, including information related to enabling the student to participate and progress in the general education curriculum (or for a preschool child, to participate in appropriate activities). The individual evaluation must be at no cost to the parent, and the initial evaluation must include at least:

(i) . . .

(ii) . . .

(iii) . . .

(iv) . . .

(v) . . .

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

2. Paragraph (2) of subdivision (c) of section 200.16 of the Regulations of the Commissioner of Education is amended, effective April 11, 2012, as follows:

(2) Except as provided in section 200.4(b)(7) of this Part, [The] the initial individual evaluation shall be completed within 60 days of receipt of consent to evaluate and conducted in accordance with section 200.4(b) of this Part. The summary report shall include a detailed statement of the preschool student's individual needs, if any. The summary report shall not include a recommendation as to the general type, frequency, location and duration of special education services and programs that should be provided; shall not address the manner in which the preschool student can be provided with instruction or related services in the least restrictive environment; and shall not make reference to any specific provider of special services or programs. Reports of the assessment and/or evaluation and a summary portion of the evaluation shall be provided to the members of the committee on preschool special education and to the person designated by the municipality in which the preschool student resides [so as to allow for a recommendation by the committee to be made to the board within thirty school days of the receipt of consent]. An approved evaluator shall provide the parent with a copy of the statement and recommendation provided to the committee. Such statement and recommendation including the summary evaluation shall be provided in English and when necessary, in the native language of the parent or other mode of communication used by the parent unless it is not feasible to do so.

3. Paragraph (1) of subdivision (e) of section 200.16 of the Regulations of the Commissioner of Education is amended, effective April 11, 2012, as follows:

(e) Recommendation. (1) The committee on preschool special education shall [provide a] meet to review the results of the initial evaluation and develop a recommendation [to the board of education] within [30 school days] 60 calendar days of the date of the receipt of consent to evaluate.

4. Paragraph (1) of subdivision (f) of section 200.16 of the Regulations of the Commissioner of Education is amended, effective April 11, 2012, as follows:

(f) Provision of services for preschool students with disabilities. (1) Upon receipt of the recommendation of the committee, the board of education shall arrange for the preschool student with a disability to receive such programs and services commencing with the July, September or January starting date for the approved program, unless such services are recommended by the committee less than 30 school days prior to, or after, such appropriate starting date selected for such preschool student, in which case, such services shall be provided as soon as possible following development of the IEP, but no later than 30 school days from the recommendation of the committee and within 60 school days from receipt of consent to evaluate. If the board disagrees with the recommendation of the committee, it shall send the recommendation back to the committee with notice to the parent and the committee including a statement of the board of education's reasons and that the recommendation will be sent back to the committee with notice of the need to schedule a timely meeting to review the board's concerns and to revise the IEP as deemed appropriate.

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

Mary Gammon, State Education Department, Office of Counsel, State Education Building, Room 148, 89 Washington Ave., Albany, NY 12234, [phone], email: [e-mail]

Data, views or arguments may be submitted to:

James P. DeLorenzo, Statewide Coordinator for Special Ed, State Education Department, Office of P-12 Education, State Education Building, Room 309, 89 Washington Ave., Albany, NY 12234, [phone], email: [e-mail]

Public comment will be received until:

45 days after publication of this notice.

Regulatory Impact Statement

1. STATUTORY AUTHORITY:

Education Law section 101 continues the existence of the Education Department, with the Board of Regents at its head and the Commissioner of Education as the chief administrative officer, and charges the Department with the general management and supervision of public schools and the educational work of the State.

Education Law section 207 empowers the Regents and Commissioner of Education to adopt rules and regulations to carry out State education laws and functions and duties conferred on the Education Department by law.

Education Law section 305(1) and (2) provide the Commissioner, as chief executive officer of the State education system, with general supervision over schools and institutions subject to the provisions of education law, and responsibility for executing Regents policies. Section 305(20) authorizes the Commissioner with such powers and duties as are charged by the Regents.

Education Law section 4402 establishes school district duties for the education of students with disabilities.

Education Law section 4403 establishes Department and school district responsibilities concerning education programs and services to students with disabilities. Section 4403(3) authorizes the Department to adopt rules and regulations as the Commissioner deems in their best interests.

Education Law section 4410 establishes requirements for education services and programs for preschool children with disabilities. Section 4410(13) authorizes the Commissioner to adopt regulations.

2. LEGISLATIVE OBJECTIVES:

The proposed amendment carries out the legislative objectives in the aforementioned statutes to ensure that students with disabilities are provided a free appropriate public education consistent with federal law and regulations.

3. NEEDS AND BENEFITS:

The proposed amendment provides mandate relief relating to special education requirements. The proposed amendment would change the timeline for the required completion of preschool evaluations; repeal the requirement that a psychologist prepare a written report of his/her determination as to whether each student with a disability needs a psychological assessment as part of his or her reevaluation; and clarifies that the 60-day timeline applies to initial individual evaluations to determine a student's eligibility for special education.

4. COSTS:

a. Costs to State government: None.

b. Costs to local governments: None.

c. Costs to regulated parties: None.

d. Costs to the State Education Department of implementation and continuing compliance: None.

The proposed amendment provides mandate relief relating to special education requirements and does not impose any additional costs beyond those imposed by federal statutes and regulations and State statutes.

5. LOCAL GOVERNMENT MANDATES:

The proposed amendment provides mandate relief relating to special education requirements, and does not impose any additional program, service, duty or responsibility upon local governments beyond those imposed by federal and State statutes and regulations.

Section 200.4, as amended, repeals the requirement that a psychologist prepare a written report of his/her determination of the need to administer an individual psychological evaluation to a school-age student with a disability as part of a student's three-year reevaluation; and makes a technical amendment to clarify that the 60-day timeline to complete an evaluation pertains to an initial evaluation of a student suspected of having a disability.

Section 200.16, as amended, provides that the initial individual evaluation to determine if a preschool child has a disability and the meeting to discuss the evaluation must occur within 60 calendar days of receipt of parental consent to evaluate, provided that, consistent with current requirements, the school district must arrange for the appropriate special education programs and services to be provided to a preschool student with a disability within 60 school days from receipt of the parent's consent to evaluate.

6. PAPERWORK:

The proposed amendment provides mandate relief relating to special education requirements, and does not impose any additional paperwork requirements. The proposed repeal of the written report requirement of the need to administer a psychological evaluation for a reevaluation based on an assessment is intended to result in a reduction of paperwork requirements.

7. DUPLICATION:

The amendment will not duplicate, overlap or conflict with any other State or federal statute or regulation.

8. ALTERNATIVES:

The Department considered federal regulatory requirements that would otherwise ensure that there would not be adverse impact on the education of students with disabilities. To ensure that each student suspected of having a disability is comprehensively evaluated, the regulations retain the requirement that the initial evaluation include a psychological evaluation, except when the school psychologist has determined that a psychological evaluation is not necessary and only repeal the requirement that the psychologist would need to prepare a written report of his/her determination of a student's need for a psychological evaluation as part of a student's reevaluation.

The proposed rule to change the timeline to complete an initial evaluation of a preschool child from 30 school days to 60 calendar days provides additional time for schools to arrange for the evaluation, but does not extend the statutory timeline by which the preschool child must receive his/her recommended special education services. Therefore, the proposed amendment would allow school districts additional time to complete preschool initial evaluations while continuing to ensure the timely provision of programs and services.

9. FEDERAL STANDARDS:

The proposed amendment does not add any requirements that would exceed any minimum federal standards.

10. COMPLIANCE SCHEDULE:

It is anticipated that regulated parties will be able to achieve compliance with the proposed amendment by its effective date.

Regulatory Flexibility Analysis

Small Businesses:

The proposed amendment provides mandate relief relating to special education requirements and does not impose any adverse economic impact, reporting, recordkeeping or any other compliance requirements on small businesses. Because it is evident from the nature of the proposed amendment that it does not affect small businesses, no affirmative steps are needed to ascertain that fact and none were taken. Accordingly, a regulatory flexibility analysis for small businesses is not required and one has not been prepared.

Local Governments:

The proposed amendment applies to all public school districts, State agency operated and approved private schools in the State that have Committee on Preschool Special Education and/or Committee on Special Education responsibilities.

1. COMPLIANCE REQUIREMENTS:

The proposed amendment provides mandate relief relating to special education requirements and does not impose any additional compliance requirements beyond those imposed by federal statutes and regulations and State law.

Section 200.4, as amended, repeals the requirement that a psychologist prepare a written report of his/her a determination of the need to administer an individual psychological evaluation to a school-age student with a disability as part of a student's three-year reevaluation; and makes a technical amendment to clarify that the 60-day timeline to complete an evaluation pertains to an initial evaluation of a student suspected of having a disability.

Section 200.16, as amended, provides that the initial individual evaluation to determine if a preschool child has a disability and the meeting to discuss the evaluation must occur within 60 calendar days of receipt of parental consent to evaluate, provided that, consistent with current requirements, the school district must arrange for the appropriate special education programs and services to be provided to a preschool student with a disability within 60 school days from receipt of consent to evaluate.

2. PROFESSIONAL SERVICES:

The proposed amendment provides mandate relief relating to special education requirements and does not impose any additional professional service requirements on local governments.

3. COMPLIANCE COSTS:

The proposed amendment provides mandate relief and does not impose any additional costs beyond those imposed by federal statutes and regulations and State statutes.

4. ECONOMIC AND TECHNOLOGICAL FEASIBILITY:

The proposed amendment does not impose any new technological requirements. Economic feasibility is addressed above under compliance costs.

5. MINIMIZING ADVERSE IMPACT:

The proposed rule provides mandate relief of certain special education requirements and therefore would have no adverse impact on the regulated parties.

6. LOCAL GOVERNMENT PARTICIPATION:

Copies of the proposed amendment have been provided to District Superintendents with the request that they distribute them to school districts within their supervisory districts for review and comment.

Rural Area Flexibility Analysis

1. TYPES AND ESTIMATED NUMBERS OF RURAL AREAS:

The proposed amendment will apply to all public school districts, boards of cooperative educational services (BOCES), State-operated and State-supported schools and approved private schools in the State, including those located in the 44 rural counties with less than 200,000 inhabitants and the 71 towns in urban counties with population density of 150 per square miles or less.

2. REPORTING, RECORDKEEPING AND OTHER COMPLIANCE REQUIREMENTS AND PROFESSIONAL SERVICES:

The proposed amendment provides mandate relief relating to special education requirements and does not impose any additional compliance requirements or professional service requirements on entities in rural areas.

Section 200.4, as amended, repeals the requirement that a psychologist prepare a written report of his/her determination of the need to administer an individual psychological evaluation to a school-age student with a disability as part of a student's three-year reevaluation; and makes a technical amendment to clarify that the 60-day timeline to complete an evaluation pertains to an initial evaluation of a student suspected of having a disability.

Section 200.16, as amended, provides that the initial individual evaluation to determine if a preschool child has a disability and the meeting to discuss the evaluation results must occur within 60 calendar days of receipt of parental consent to evaluate; provided that, consistent with current requirements, the school district arrange for the appropriate special education programs and services to be provided to a preschool student with a disability within 60 school days from receipt of the parent's consent to evaluate.

3. COSTS:

The proposed amendment provides mandate relief and does not impose any additional costs beyond those imposed by federal statutes and regulations and State statutes.

4. MINIMIZING ADVERSE IMPACT:

The proposed rule provides mandate relief of certain special education requirements and therefore would have no adverse impact on the regulated parties. Since these requirements apply to all local and State educational agencies in the State, it is not possible to adopt different standards for school districts in rural areas.

5. RURAL AREA PARTICIPATION:

The proposed amendment was submitted for discussion and comment to the Department's Rural Education Advisory Committee, which includes representatives of school districts in rural areas.

Job Impact Statement

The proposed amendment would change the timeline for the required completion of preschool evaluations; repeal the requirement that a psychologist prepare a written report of his/her determination as to whether each student with a disability needs a psychological assessment as part of his or her reevaluation; and makes certain technical amendments. The rule will not have a substantial adverse effect on jobs and employment opportunities, including those for school psychologists, because the proposed rule would provide school districts greater flexibility to utilize the skills and expertise of school psychologists and provide school psychologists additional time to provide other services, including direct services to students. Because it is evident from the nature of the amendment 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.