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

10/22/08 N.Y. St. Reg. EDU-31-08-00014-RP

NEW YORK STATE REGISTER

VOLUME XXX, ISSUE 43

October 22, 2008

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's 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 January 8, 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] September 1, 2009, 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 January 8, 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] September 1, 2009, the prior written notice 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 January 8, 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] September 1, 2009, the meeting notice shall be on a form prescribed by the commissioner.

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 Dept, Office of Counsel, State Education Building, Rm. 148, 89 Washington Ave., 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 Dept., Rm. 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 Proposed Rule Making in the State Register on July 30, 2008, the proposed amendment has been revised as follows.

Public comment on the proposed amendment requested clarification of the intent of the provision that the forms be ". . . developed consistent with the Commissioner's guidelines." This provision was intended to ensure that school districts complete the forms consistent with the instructions accompanying the forms, which will, consistent with existing statutory and regulatory requirements, identify the information to be entered in the prescribed forms, including where additional information can be added and what regulatory requirements are being addressed when student specific information is added to the forms. It was not the intent of the provision to prescribe new substantive or procedural requirements beyond those established in existing regulations. Nevertheless, in order to remove the potential for confusion or misinterpretation, sections 200.4(d)(2), 200.5(a)(1) and 200.5(c)(1) have been revised to delete this provision.

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. Since that date, the Department sought extensive comment on the development of the forms from stakeholders across the State. In response to their comments, the Department proposes to extend the effective date for required use of the forms from January 1, 2009 to September 1, 2009. 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 and guidance. In addition, the proposed amendment will require school districts to use the new forms at the beginning of the 2009-2010 school year, and thereby 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 2008-2009 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 date for requiring the State's forms for IEPs, prior written notice (notice of recommendation) and meeting notice.

Section 200.4 revises the date by which all school districts must use the form prescribed by the Commissioner to develop IEPs from January 1, 2009 to September 1, 2009.

Section 200.5 revises the date by which all school districts must use the prior written notice (notice of recommendation) and meeting notices prescribed by the Commissioner from January 1, 2009 to September 1, 2009.

PAPERWORK:

The proposed amendment will extend the 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 July 30, 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 revises the date by which all school districts must use the form prescribed by the Commissioner to develop IEPs from January 1, 2009 to September 1, 2009.

Section 200.5 revises the date by which all school districts must use the prior written notice (notice of recommendation) and meeting notices prescribed by the Commissioner from January 1, 2009 to September 1, 2009.

COMPLIANCE COSTS:

The proposed amendment is necessary to ensure consistency in procedural safeguards by extending the 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 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. Since that date, the Department sought extensive comment on the development of the forms from stakeholders across the State. In response to their comments, the Department proposes to extend the effective date for required use of the forms from January 1, 2009 to September 1, 2009. 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 and guidance. In addition, the proposed amendment will require school districts to use the new forms at the beginning of the 2009-2010 school year, and thereby 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 2008-2009 school year.

Revised Rural Area Flexibility Analysis

Since publication of a Notice of Proposed Rule Making in the State Register on July 30, 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 Costs and Minimizing Adverse Impact sections of the Rural Area Flexibility Analysis be revised as follows:

REPORTING, RECORD KEEPING 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 revises the date by which all school districts must use the form prescribed by the Commissioner to develop IEPs from January 1, 2009 to September 1, 2009.

Section 200.5 revises the date by which all school districts must use the prior written notice (notice of recommendation) and meeting notices prescribed by the Commissioner from January 1, 2009 to September 1, 2009.

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. Since that date, the Department sought extensive comment on the development of the forms from stakeholders across the State. In response to their comments, the Department proposes to extend the effective date for required use of the forms from January 1, 2009 to September 1, 2009. 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 and guidance. In addition, the proposed amendment will require school districts to use the new forms at the beginning of the 2009-2010 school year, and thereby 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 2008-2009 school year.

Revised Job Impact Statement

Since publication of a Notice of Proposed Rule Making in the State Register on July 30, 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 Proposed Rule Making in the State Register on July 30, 2008, the State Education Department received the following comments.

General

1. COMMENT:

Changing the effective date from January 2009 to September 2009 is more reasonable for the implementation of the State forms. Extending the date will allow districts time to better prepare teachers, parents and other stakeholders in the proper use of each form. A later date at the beginning of the school year will minimize potential disruptions to a district and parents.

The mandated individualized education program (IEP) will provide consistency throughout the State with IEP development and implementation. The mandated meeting notice and prior written notice forms will provide districts and parents with required information to make an informed decision and will decrease the number of due process complaints regarding parents not receiving mandated information in the notice.

DEPARTMENT RESPONSE:

The comments are supportive in nature and no response is necessary.

2. COMMENT:

All new forms and the IEP should be made available in Spanish and French to meet the needs of students with cultural diversities.

DEPARTMENT RESPONSE:

Section 200.5(a)(4) of the Regulations of the Commissioner of Education requires that the prior written notice be provided in the native language of the parent or other mode of communication used by the parent, unless it is clearly not feasible to do so. Consistent with this requirement, the Department plans to translate the prior written notice into the five most commonly spoken languages in New York State: Spanish, Haitian-Creole, Korean, Russian and Chinese. While there is no requirement that the IEP or meeting notice be in the native language of the parent, the Department will consider this recommendation.

3. COMMENT:

Clarify the intent of the provision that the forms be ". . . developed consistent with the Commissioner's guidelines". Clarify what guidelines the regulation is referring to and if they have been created already. The content of the guidelines should be clearly described in the regulations. The guidelines should be made available for public hearing and comments in accordance with the Individuals with Disabilities Education Act's (IDEA) public participation requirements and the State Administrative Procedure Act (SAPA) prior to implementation.

DEPARTMENT RESPONSE:

This provision was intended to ensure that school districts complete the forms consistent with the instructions accompanying the forms, which will, consistent with existing statutory and regulatory requirements, identify the information to be entered in the prescribed forms, including where additional information can be added and what regulatory requirements are being addressed when student specific information is added to the forms. It was not the intent of the provision to prescribe new substantive or procedural requirements beyond those established in existing regulations. Nevertheless, in order to remove the potential for confusion or misinterpretation, sections 200.4(d)(2), 200.5(a)(1) and 200.5(c)(1) have been revised to delete this provision.

4. COMMENT:

Clarify to what extent the new forms will be incorporated into the regulations and the manner in which the form will be prescribed by the commissioner. Incorporate the required forms into the regulations. Stakeholders such as parents, individuals with disabilities and the personnel who serve them should participate in the development of the forms pursuant to the IDEA public participation requirements and the State Administrative Procedure Act.

DEPARTMENT RESPONSE:

The comments are outside the scope of the proposed amendment which is to merely extend, from January 1, 2009 to September 1, 2009, the date for required use of the State's forms for IEPs, prior written notice (notice of recommendation) and CSE and CPSE meeting notices. The regulations requiring use of the State's forms were adopted in September 2007, as part of a separate rulemaking (EDU-12-07-00004). As part of the process leading to the September 2007 adoption of the regulations requiring use of the State's forms, a public hearing was held on the regulations pursuant to the IDEA's public participation requirements in 20 USC § 1412(a)(19) and 34 CFR 300.165, and a notice of proposed rule making was published in the State Register on March 21, 2007, with a 45-day public comment period pursuant to the SAPA. In addition, two subsequent notices of revised Rule Making were published in the State Register on July 3, 2007 and July 18, 2007, respectively, and each of these revised rule makings included separate 30-day public comment periods pursuant to SAPA. In response to the public comment received on the Notice of Proposed Rule Making, the regulations were revised to extend the date for using the forms from July 1, 2008 to January 1, 2009 to ensure an appropriate period of public comment and conversion time. No further comments were received on the forms following the publication of the Notices of Revised Rule Making.

Over the past year, the Department has sought broad stakeholder input in the development of the forms including, but not limited to, input from parents, teachers, school administrators, technical assistance providers, teachers' unions, attorneys, the Commissioner's Advisory Panel for Special Education, and IEP software companies. Extensive revisions have been made to the forms in response to comments received throughout the process. The Department intends to provide an additional period of public review prior to issuing the mandated forms.

State form for IEPs

5. COMMENT:

Clarify whether IEPs developed between December 2008 and January 2009 will be acceptable for use in the 2009-10 school year.

DEPARTMENT RESPONSE:

The revised proposed amendment would require an IEP that is developed on or after September 1, 2009, to be on the form prescribed by the Commissioner. Any IEPs developed between December 2008 and January 2009 would not need to be rewritten on the form prescribed by the Commissioner, unless such IEP is revised on or after September 1, 2009.

6. COMMENT:

Give districts one and a half years to two calendar years from the date on which the new form becomes available to come into full compliance in order to reprogram software, update IEP data base curriculums, IEP guidance documents and initiate staff development on the new form. This requirement may have unnecessary cost implications for districts depending on their databases, and the need to devote significant time and resources to professional development. There should be an assessment of the fiscal implications of the different proposed forms on the districts and an assessment of the proposed forms on parental involvement in the IEP development process.

DEPARTMENT RESPONSE:

The Department believes the September 1, 2009 effective date will provide sufficient time for districts to convert to using the new forms, which only incorporate current regulatory and statutory requirements. We also believe that the use of mandatory forms will minimize the frequency of future changes to IEP software and any associated staff training.

Other

7. COMMENT:

The word "enhancing" in the phrase "the concerns of the parents for enhancing the education of their child" may be interpreted as getting the "best" versus "appropriate", and should be replaced with "improve", "add to" or "increase".

DEPARTMENT RESPONSE:

The term is part of the existing language in section 200.4(d)(2) and is not sought to be amended or revised as part of the proposed rule making, and therefore is beyond the scope of the proposed rule making. However, the current requirement in section 200.4(d)(2) that the committee consider the concerns of the parents for enhancing the education of their child is consistent with section 614(d)(3)(A) of IDEA 2004 and section 300.324(a)(ii) of the federal regulations that implement IDEA.