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EDU-51-10-00011-A Special Education Programs and Services for Students with Disabilities
3/30/11 N.Y. St. Reg. EDU-51-10-00011-A
NEW YORK STATE REGISTER
VOLUME XXXIII, ISSUE 13
March 30, 2011
RULE MAKING ACTIVITIES
EDUCATION DEPARTMENT
NOTICE OF ADOPTION
I.D No. EDU-51-10-00011-A
Filing No. 268
Filing Date. Mar. 15, 2011
Effective Date. Mar. 30, 2011
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 action:
Action taken:
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 or summary was published
in the December 22, 2010 issue of the Register, I.D. No. EDU-51-10-00011-P.
Final rule as compared with last published rule:
No changes.
Text of 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, (518) 473-8296, email: legal@mail.nysed.gov
Assessment of Public Comment
Since publication of a Notice of Proposed Rule Making in the State Register on December 22, 2010, the State Education Department (SED) received the following comments on the proposed amendment.
1. COMMENT:
The majority of comments supported the proposed change to replace the term "mental retardation" with "intellectual disability." Supportive comments included: the change provides consistency with State and federal statutes and uses a less "derogatory" term that does not carry the stigma and negativity that is now associated with the term "mental retardation;" the term reflects the true nature of the disability and focuses less on bias; the term matches the definition of the disability more appropriately and focuses on the intellectual abilities that affect a student's educational performance.
DEPARTMENT RESPONSE:
Comments are supportive in nature and no response is necessary.
2. COMMENT:
Do not understand the reason for the change, other than because the term has been deemed politically incorrect. Changing the term is not going to enable students who have lower IQ's to be any more successful and earn local or Regent's diplomas; may create discrimination in part by being secretive about issues regarding abilities/disabilities. Students' strengths and weaknesses should not be disguised by the disability classification; the term should be consistent with medical terminology in the Diagnostic Statistical manual so as not to confuse professionals and parents; the term "intellectual disability" may disguise a student's strengths and weaknesses. The proposed classification change does not reflect the global aspect of mental retardation, which is a critical consideration when assessing and determining the appropriateness of this classification for a student, while the current term, "mental retardation", encompasses the characteristic of a significantly impaired rate of learning. A diagnosis should be based on a student's differences, and suggest the label "intellectual differences" is a more proper classification for children with mental retardation. The term "intellectual disability" is not easily distinguishable from "learning disability", and could easily be thought to be one in the same.
DEPARTMENT RESPONSE:
The proposed change in the classification term to "intellectual disability" is intended to address issues of respect and dignity for individuals with disabilities and to offset the negative and derogatory connotations that are associated with the term "mental retardation". While the proposed amendment replaces the term "mental retardation" with "intellectual disability," it does not change the existing definition of such term, which is defined broadly enough to reflect students' differences and includes "subaverage general intellectual functioning." The definition of the term would also distinguish a student with an "intellectual disability" from one with a "learning disability."
3. COMMENT:
Support the proposed amendment as long as the definition previously associated with the term "mentally retarded" is not changed.
DEPARTMENT RESPONSE:
The proposed amendment will replace the term "mental retardation" with "intellectual disability" in State regulations to be consistent with the terminology change in federal law. However, it does not change the existing definition of such term in section 200.1(zz)(7) of the Regulations of the Commissioner of Education.
4. COMMENT:
Will "intellectual disability" replace "mental retardation" as one of the 13 disability categories used on individualized education programs (IEPs) and for diagnosis?
DEPARTMENT RESPONSE:
Yes. If adopted, the term "intellectual disability" will replace "mental retardation" as one of the thirteen disability classifications that a Committee on Special Education (CSE) must use to identify a student who is eligible for special education, and would be indicated in a student's IEP.
5. COMMENT:
If the amendment is adopted, the CSE will have to submit even more paperwork than they need to complete now.
DEPARTMENT RESPONSE:
The proposed amendment only changes the term "mental retardation" to "intellectual disability", and does not include any additional paperwork requirements.
6. COMMENT:
The attempt to rename a particular classification brings into question all of the 13 classifications currently in use, which are confusing and painful for parents. Propose revisiting the appropriateness of 13 classifications instead of just one. Recommend using the classifications utilized by other states (i.e., Mild, Moderate, and Severe) as these descriptors more accurately reflect the degree of impact of the disability on the student's ability to participate and make progress in their educational program.
DEPARTMENT RESPONSE:
34 CFR section 300.8 defines the term "child with a disability" and provides a definition of 13 disability classifications. The thirteen disability categories included in New York State's definition of a "student with a disability in section 200.1(zz) of Regulations of the Commissioner of Education are consistent with federal terms and definitions, and the proposed amendment, which replaces the term "mental retardation" with "intellectual disability", ensures continued consistency with federal terminology. While federal regulations allow a State to use the term "developmental delay" for a child who needs special education who is between the ages of three and nine and who is experiencing a developmental delay in physical development, cognitive development, communication development, social or emotional development and/or adaptive development, federal regulations do not provide this same flexibility to students older than age nine.
7. COMMENT:
The correct name of OPWDD is the Office for People With Developmental Disabilities, not the Office of People With Developmental Disabilities.
DEPARTMENT RESPONSE:
"Office of People With Developmental Disabilities" was a typographical error in the announcement regarding the proposed changes to the regulations that was posted on the Department's website. The actual proposed amendment uses the correct name, "Office for People With Developmental Disabilities."
