EDU-51-10-00011-P Special Education Programs and Services for Students With Disabilities

12/22/10 N.Y. St. Reg. EDU-51-10-00011-P

NEW YORK STATE REGISTER

VOLUME XXXII, ISSUE 51

December 22, 2010

RULE MAKING ACTIVITIES

EDUCATION DEPARTMENT

PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. EDU-51-10-00011-P

Special Education Programs and Services for Students With Disabilities

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

Proposed Action:

Amendment of sections 200.1 and 200.4 of Title 8 NYCRR.

Statutory authority:

Education Law, sections 207, 305(1), (2) and (20), 4402 and 4403(3)

Subject:

Special Education Programs and Services for Students with Disabilities.

Purpose:

To conform Commissioner's regulations to federal and State terminology changes.

Text of proposed rule:

1. Paragraphs (6), (7), and (8) of subdivision (zz) of section 200.1 of the Regulations of the Commissioner of Education are amended, effective March 30, 2011, as follows:

(6) Learning disability means a disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written, which manifests itself in an imperfect ability to listen, think, speak, read, write, spell, or to do mathematical calculations, as determined in accordance with section 200.4(j) of this Part. The term includes such conditions as perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia and developmental aphasia. The term does not include learning problems that are primarily the result of visual, hearing or motor disabilities, of [mental retardation] an intellectual disability, of emotional disturbance, or of environmental, cultural or economic disadvantage.

(7) [Mental retardation] Intellectual disability means significantly subaverage general intellectual functioning, existing concurrently with deficits in adaptive behavior and manifested during the developmental period, that adversely affects a student's educational performance.

(8) Multiple disabilities means concomitant impairments (such as [mental retardation] intellectual disability-blindness, [mental retardation] intellectual disability-orthopedic impairment, etc.), the combination of which cause such severe educational needs that they cannot be accommodated in a special education program solely for one of the impairments. The term does not include deaf-blindness.

2. Clause (b) of subparagraph (ii) of paragraph (2) of subdivision (i) of section 200.4 of the Regulations of the Commissioner of Education is amended, effective March 30, 2011, as follows:

(b) the committee on special education or multidisciplinary team, upon receipt of consent, shall forward the student's name and other relevant information in a report to the Commissioner of Mental Health, Commissioner of [Mental Retardation and Developmental Disabilities] the Office for People With Developmental Disabilities, Commissioner of Social Services or Commissioner of Education or their designees. The committee on special education or multidisciplinary team shall determine which commissioner shall receive the report; and

3. Paragraph (4) of subdivision (i) of section 200.4 of the Regulations of the Commissioner of Education is amended, effective March 30, 2011, as follows:

(4) The committee on special education or the multidisciplinary team shall forward additional and updated relevant information to the Commissioner of Mental Health, Commissioner of [Mental Retardation and Developmental Disabilities] the Office for People With Developmental Disabilities, Commissioner of the Office of Children and Family Services or Commissioner of Education, or their designees, upon the request for such information by such commissioner or designee, and upon obtaining appropriate consent.

4. Subparagraph (ii) of paragraph (3) of subdivision (j) of section 200.4 of the Regulations of the Commissioner of Education is amended, effective March 30, 2011, as follows:

(ii) The CSE determines that its findings under this paragraph are not primarily the result of a visual, hearing, or motor disability; [mental retardation] an intellectual disability; emotional disturbance; cultural factors; environmental or economic disadvantage; or limited English proficiency.

5. Clause (f) of subparagraph (i) of paragraph (5) of subdivision (j) of section 200.4 of the Regulations of the Commissioner of Education is amended, effective March 30, 2011, as follows:

(f) the determination of the CSE concerning the effects of a visual, hearing, or motor disability; [mental retardation] an intellectual disability; emotional disturbance; cultural factors; environmental or economic disadvantage; or limited English proficiency on the student's achievement level; and

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

Chris Moore, 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 of Special Education, State Education Department, State Education Building, Room 309, 89 Washington Avenue, Albany, NY 12234, [phone], email: [e-mail]

Public comment will be received until:

45 days after publication of this notice.

This action was not under consideration at the time this agency's regulatory agenda was submitted.

Regulatory Impact Statement

1. STATUTORY AUTHORITY:

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.

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 is necessary to conform the Regulations of the Commissioner of Education to be consistent with a recent terminology change in federal law, by replacing the term "mental retardation" with "intellectual disability" in the Commissioner's Regulations. On October 5, 2010, "Rosa's Law" (Public Law 111-256) was enacted to replace the term "mental retardation" with "intellectual disability" in federal statutes, including IDEA, the Elementary and Secondary Education Act (ESEA), the Higher Education Act and the Rehabilitation Act of 1973. While states are not required to replace the term "mental retardation" with "intellectual disability," the Department has determined that replacing "mental retardation" with "intellectual disability" will ensure the Commissioner's Regulations are consistent with the terminology used in federal law and will address issues of respect and dignity for individuals with this disability.

The proposed amendment also makes technical revisions to replace the term "Commissioner of Mental Retardation and Developmental Disabilities" with "Commissioner of the Office for People With Developmental Disabilities" to conform to a recent State statutory change of name of the Office of Mental Retardation and Developmental Disabilities to the Office for People With Developmental Disabilities (OPWDD).

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 merely replaces certain terms in the Commissioner's Regulations in order to ensure consistency with recent changes in the terminology used in federal and State statutes and does not impose any additional costs on the State, local governments, private regulated parties or the State Education Department.

5. LOCAL GOVERNMENT MANDATES:

The proposed amendment merely replaces certain terms in the Commissioner's Regulations in order to ensure consistency with recent changes in the terminology used in federal and State statutes and does not impose any additional program, service, duty or responsibility upon local governments.

Section 200.1, as amended, substitutes the term "mental retardation" with "intellectual disability" consistent with the terminology change in federal statutes.

Section 200.4, as amended, substitutes the term "mental retardation" with "intellectual disability" consistent with the terminology change in federal statutes; and makes a technical amendment to change the "Commissioner of Mental Retardation and Developmental Disabilities" to the "Commissioner of the Office for People With Developmental Disabilities" consistent with the Department's statutory name change.

6. PAPERWORK:

The proposed amendment merely replaces certain terms in the Commissioner's Regulations in order to ensure consistency with recent changes in the terminology used in federal and State statutes and does not impose any additional paperwork requirements.

7. DUPLICATION:

The proposed amendment will not duplicate, overlap or conflict with any other State or federal statute or regulation, but will ensure consistency with recent changes in terminology used in federal and State statutes.

8. ALTERNATIVES:

The Department conducted a multiple-state survey of disability classifications and sought input from the members of the Commissioner's Advisory Panel for Special Education Services when considering various alternatives to the term "mental retardation." The Department determined that replacing "mental retardation" with "intellectual disability" will ensure the Commissioner's Regulations are consistent with the terminology used in federal law and will address issues of respect and dignity for individuals with this disability.

9. FEDERAL STANDARDS:

The proposed amendment does not exceed any minimum standards of the federal government for the same or similar subject areas and is not required by federal law or regulations, but will ensure consistency with a recent change in terminology used in federal statutes.

10. COMPLIANCE SCHEDULE:

The proposed amendment merely replaces certain terms in the Commissioner's Regulations in order to ensure consistency with recent changes in the terminology used in federal and State statutes and does not impose any compliance requirements. 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 replaces references in the Commissioner's Regulations to "mental retardation" with "intellectual disability", and replaces references to "Commissioner of the Office of Mental Retardation and Developmental Disabilities" to "Commissioner of the Office of People With Developmental Disabilities" in order to ensure consistency with recent changes to the terminology used in federal and State statutes. The proposed amendment 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, boards of cooperative educational services (BOCES), State-operated and State-supported schools and approved private schools in the State.

1. COMPLIANCE REQUIREMENTS:

The proposed amendment does not impose any additional compliance requirements on local governments. The proposed amendment replaces references in the Commissioner's Regulations to the term "mental retardation" with "intellectual disability" consistent with a recent terminology change in federal statutes, including IDEA, enacted by Public Law 111-256 ("Rosa's Law"); and replaces references to "Commissioner of the Office of Mental Retardation and Developmental Disabilities" to "Commissioner of the Office of People With Developmental Disabilities" to conform to a recent State statutory name change of the Office of Mental Retardation and Developmental Disabilities to the Office for People With Developmental Disabilities (OPWDD).

2. PROFESSIONAL SERVICES:

The proposed amendment merely replaces certain terms in the Commissioner's Regulations in order to ensure consistency with recent changes in the terminology used in federal and State statutes and does not impose any additional professional service requirements on local governments.

3. COMPLIANCE COSTS:

The proposed amendment merely replaces certain terms in the Commissioner's Regulations in order to ensure consistency with recent changes in the terminology used in federal and State statutes and does not impose any additional costs on local governments.

4. ECONOMIC AND TECHNOLOGICAL FEASIBILITY:

The proposed amendment merely replaces certain terms in the Commissioner's Regulations in order to ensure consistency with recent changes in the terminology used in federal and State statutes and does not impose any new technological requirements or costs on local governments.

5. MINIMIZING ADVERSE IMPACT:

The proposed amendment does not impose any compliance requirements or costs on local governments, but merely replaces certain terms in the Commissioner's Regulations in order to ensure consistency with recent changes to the terminology used in federal and State statutes.

Section 200.1, as amended, substitutes the term "mental retardation" with "intellectual disability" consistent with the terminology change in federal statutes.

Section 200.4, as amended, substitutes the term "mental retardation" with "intellectual disability" consistent with the terminology change in federal statutes; and makes a technical amendment to change references to the "Commissioner of Mental Retardation and Developmental Disabilities" to the "Commissioner of the Office for People With Developmental Disabilities" consistent with a recent State statutory name change of the Office of Mental Retardation and Developmental Disabilities to the Office for People With Developmental Disabilities (OPWDD).

The Department conducted a multiple-state survey of disability classifications and sought input from the members of the Commissioner's Advisory Panel for Special Education Services when considering various alternatives to the term "mental retardation." The Department determined that replacing "mental retardation" with "intellectual disability" will ensure the Commissioner's Regulations are consistent with the terminology used in federal law and will address issues of respect and dignity for individuals with this disability.

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 does not impose any additional compliance requirements or professional services requirements on entities in rural areas. The proposed amendment replaces references in the Commissioner's Regulations to the term "mental retardation" with "intellectual disability" consistent with the terminology change in federal statutes, including the Individuals with Disabilities Education Act (IDEA), enacted by Public Law 111-256 ("Rosa's Law"); and replaces references to "Commissioner of the Office of Mental Retardation and Developmental Disabilities" to "Commissioner of the Office of People With Developmental Disabilities" to conform to a recent State statutory name change of the Office of Mental Retardation and Developmental Disabilities to the Office for People With Developmental Disabilities (OPWDD).

3. COSTS:

The proposed amendment merely replaces certain terms in the Commissioner's Regulations in order to ensure consistency with recent changes in the terminology used in federal and State statutes and does not impose any additional costs on entities in rural areas.

4. MINIMIZING ADVERSE IMPACT:

The proposed amendment does not impose any compliance requirements or costs on entities in rural areas, but merely replaces certain terms in the Commissioner's Regulations in order to ensure consistency with recent changes to the terminology used in federal and State statutes.

Section 200.1, as amended, substitutes the term "mental retardation" with "intellectual disability" consistent with the terminology change in federal statutes.

Section 200.4, as amended, substitutes the term "mental retardation" with "intellectual disability" consistent with the terminology change in federal statutes; and makes a technical amendment to change references to the "Commissioner of Mental Retardation and Developmental Disabilities" to the "Commissioner of the Office for People With Developmental Disabilities" consistent with a recent State statutory name change of the Office of Mental Retardation and Developmental Disabilities to the Office for People With Developmental Disabilities (OPWDD).

The Department conducted a multiple-state survey of disability classifications and sought input from the members of the Commissioner's Advisory Panel for Special Education Services when considering various alternatives to the term "mental retardation." The Department determined that replacing "mental retardation" with "intellectual disability" will ensure the Commissioner's Regulations are consistent with the terminology used in federal law and will address issues of respect and dignity for individuals with this disability.

5. RURAL AREA PARTICIPATION:

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

Job Impact Statement

The proposed amendment replaces references in the Commissioner's Regulations to the term “mental retardation” with “intellectual disability” and replaces references to "Commissioner of the Office of Mental Retardation and Developmental Disabilities" to "Commissioner of the Office of People With Developmental Disabilities" in order to ensure consistency with recent changes to the terminology used in federal and State statutes. The proposed amendment will not have a substantial impact on jobs and employment opportunities. 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.