Preschool special education programs and services.
Purpose:
To enact requirements relating to appointment of 1:1 aide by Committee on Special Education (CSE); Special Education Itinerant Services (SEIS); related services; and standards for approved preschool providers.
Text of revised rule:
1. Paragraph (3) of subdivision (d) of section 200.4 of the Regulations of the Commissioner of Education is amended, effective July 1, 2016, to read as follows:
(3) Consideration of special factors. The CSE shall:
(i) . . .
(ii) . . .
(iii) . . .
(iv) . . .
(v) consider whether the student requires assistive technology devices and services, including whether the use of school-purchased assistive technology devices is required to be used in the student's home or in other settings in order for the student to receive a free appropriate public education; [and]
(vi) include a statement in the IEP if, in considering the special factors described in this paragraph, the committee has determined a student needs a particular device or service (including an intervention, accommodation, or other program modification) in order for the student to receive a free appropriate public education; and
(vii) prior to the IEP recommendation of assignment of additional supplementary school personnel (one-to-one aide) to meet the individualized needs of a student with a disability, consider:
(a) the management needs of the student that would require a significant degree of individualized attention and intervention;
(b) the skills and goals the student would need to achieve that will reduce or eliminate the need for the one-to-one aide;
(c) the specific support (e.g., assistance with personal hygiene or behaviors that impede learning) that the one-to-one aide would provide for the student;
(d) other supports, accommodations and/or services that could support the student to meet these needs (e.g., behavioral intervention plan; environmental accommodations or modifications; instructional materials in alternate formats; assistive technology devices; peer-to-peer supports);
(e) the extent (e.g., portions of the school day) or circumstances (e.g., for transitions from class to class) the student would need the assistance of a one-to-one aide;
(f) staff ratios in the setting where the student will attend school;
(g) the extent to which assignment of a one-to-one aide might enable the student to be educated with nondisabled students and, to the maximum extent appropriate, in the least restrictive environment;
(h) any potential harmful effect on the student or on the quality of services that he or she needs that might result from the assignment of a one-to-one aide; and
(i) the training and support that shall be provided to the one-to-one aide to help the one-to-one aide understand the student’s disability-related needs, learn effective strategies for addressing the student’s needs, and acquire the necessary skills to support the implementation of the student’s individualized education program.
Nothing in this subparagraph shall be construed to prohibit or limit the assignment of shared one-to-one aides at the discretion of the school to meet the individualized needs of students whose IEPs include the recommendation for one-to-one aides. The duties of a teacher aide or teaching assistant providing individualized support to a student with a disability shall be consistent with the duties prescribed pursuant to section 80-5.6 of this Title.
2. Subparagraph (ii) of paragraph (3) of subdivision (i) of section 200.16 of the Regulations of the Commissioner of Education is amended, effective July 1, 2016, to read as follows:
(ii) Special education itinerant services as defined in section 4410(1)(k) of Education Law are services provided by a certified special education teacher of an approved program on an itinerant basis at a site determined by the board including but not limited to an approved or licensed prekindergarten or head start program; the student's home; a hospital; a State facility; or a child care location as defined in section 4410 of the Education Law. If the board determines that documented medical or special needs of the preschool student indicate that the student should not be transported to another site, the student shall be entitled to receive special education itinerant services in the preschool student's home. Such services shall be for the purpose of providing specialized individual or group instruction and/or indirect services to preschool students with disabilities. Indirect services means consultation provided by a certified special education teacher to assist the child's teacher in adjusting the learning environment and/or modifying their instructional methods to meet the individual needs of a preschool student with a disability who attends an early childhood program. An early childhood program, for purposes of this paragraph, means a regular preschool program or day care program approved or licensed by a governmental agency in which a child under the age of five attends. Special education itinerant services shall be provided to a preschool student with a disability for whom such services have been recommended as follows:
(a) the service shall be recommended by the Committee on Preschool Special Education and shall be included in the student’s individualized education program. Such recommendation shall identify the setting where such services would be delivered; specify the frequency, duration, intensity and location of direct special education itinerant services; and, for students who attend a regular early childhood program, specify, if any, the frequency, duration and location for the provision of indirect special education itinerant services as such term is defined in this subparagraph;
(b) . . .
(c) . . .
(d) . . .
(e) . . .
3. Subparagraph (iii) of paragraph (3) of subdivision (i) of section 200.16 is amended, effective July 1, 2016, as follows:
(iii) Special classes shall be provided on a half-day or full-day basis pursuant to section 200.1(p), (q), and (v) of this Part and in accordance with section 200.6(h)(2) and (3) or section 200.9(f)(2)(x) of this Part and shall assure that:
(a) . . .
(b) . . .
(c) such services shall be provided for not less than two and one half hours per day, two days per week; and
(d) consistent with the requirements of section 200.20(a)(9) of this Part, the special class shall include instructional services and related services, as specified in the student’s individualized education program.
4. Subdivision (b) of section 200.20 is amended, effective July 1, 2016, as follows:
(b) Preschool programs funded pursuant to section 4410 of the Education Law shall also meet the following additional requirements:
(1) . . .
(2) . . .
(3) Each approved preschool program shall ensure that:
(i) . . .
(ii) the executive director or person assigned to perform the duties of a chief executive officer shall reside within a reasonable geographic distance from the program’s administrative, instructional and/or evaluation sites to ensure appropriate oversight of the program; and
(iii) if paid as a full time executive director, the executive director shall be employed in a full-time, full-year position and shall not engage in activity that would interfere with or impair the executive director’s ability to carry out and perform his or her duties, responsibilities and obligations.
(4) Each program approved to provide special education itinerant services shall ensure that such service is provided, consistent with the recommendations in the students’ individualized education programs, as an itinerant service to the preschool student at a regular early childhood program or the student’s home or other child care location identified by the parent, consistent with the requirements of section 200.16(i)(3)(ii) of this Part.
(5) Each approved preschool program shall ensure that the educational director, if hired on or after September 1, 2016, shall possess a NYS teaching certificate pursuant to section 80-3.3 of this Title valid for classroom teaching services to students with disabilities, birth-grade 2, or certification in early childhood education, or possesses New York State certification or licensure in speech-language pathology, psychology, occupational or physical therapy or another related services field as such term is defined in section 200.1(qq) of this Part; and, consistent with the requirements of section 80-3.10 of this Title, shall hold New York State certification as a School Building Leader or School District Leader or School Administrator/Supervisor. Nothing in this paragraph shall require that an approved preschool program hire an educational director in addition to the executive director, when the executive director otherwise provides the on-site direction of the program.
(6) Make-up of missed services. Each preschool provider shall, consistent with Department guidelines, ensure the make-up of missed services occurs, consistent with the duration and location specified in the IEP, within 30 days of the missed session unless there is a documented child-specific reason why the make-up session could not be provided within 30 days.
(7) Program standards for instruction of preschool students with disabilities. Each approved provider shall, as applicable, ensure that preschool students with disabilities receive instruction and positive behavioral supports that are based on peer-reviewed or evidence-based practices and consistent with the standards in this paragraph.
(i) Instructional standards for approved preschool special class programs.
(a) By not later than September 1, 2017, providers shall adopt and implement curricula aligned with the New York State Prekindergarten Foundation for the Common Core, which ensures continuity with instruction in the early elementary grades; and shall provide early literacy and emergent reading programs based on developmentally appropriate, effective and evidence-based instructional practices.
(b) The instructional program for preschool students with disabilities shall be based on the ages, interests, strengths and needs of the children.
(c) Procedures shall be implemented to promote the active engagement of parents and/or guardians in the education of their children. Such procedures shall include support to children and their families for a successful transition into kindergarten.
(ii) Program standards for positive behavioral supports for approved preschool special class programs.
(a) By not later than September 1, 2017, providers shall establish and implement a program-wide system of positive evidence-based practices to support social-emotional competence and teach social-emotional skills to preschool students, which shall include:
(1) universal supports for all children through nurturing and responsive relationships and high quality environments;
(2) practices that are targeted social-emotional strategies to prevent problem behaviors; and
(3) practices related to individualized intensive interventions.
(b) Except as provided pursuant to section 201.8 of this Title, no preschool student with a disability may be suspended, expelled or otherwise removed by the provider from an approved preschool special education program or service because of the student’s behavior prior to the transfer of the student to another approved program recommended by the committee on preschool special education.
(iii) Progress Monitoring. Approved preschool special education programs shall conduct regular progress monitoring of student achievement data over time to adjust, as appropriate, the student’s instructional program and, as necessary, to request meetings of the CPSE to consider changes to the student’s individualized education program. The program shall provide regular written reports of student progress to the student’s parent and committee on preschool special education, consistent with frequency or timetable for such periodic reports on the progress the student is making toward the annual goals as identified in the student’s individualized education program.
Revised rule compared with proposed rule:
Substantial revisions were made in sections 200.4(d)(3), 200.9(f)(2), 200.16(f), (i)(3) and 200.20(b).
Text of revised proposed rule and any required statements and analyses may be obtained from
Kirti Goswami, State Education Department, Office of Counsel, State Education Building, Room 148, 89 Washington Ave., Albany, NY 12234, (518) 474-6400, email: legal@nysed.gov
Data, views or arguments may be submitted to:
Pat Geary, State Education Department, Office of Special Education, State Education Building, Room 309, 89 Washington Ave., Albany, NY 12234, (518) 402-3353, email: spedpubliccomment@nysed.gov
Public comment will be received until:
30 days after publication of this notice.
Summary of Revised Regulatory Impact Statement
Since publication of a Notice of Proposed Rule Making in the State Register on November 10, 2015, the following substantial revisions were made:
200.4(d)(3), relating to assignment of individual aide to a student with a disabilities, is revised to: (1) clarify “one-to-one aide” means assignment of additional supplementary school personnel) to meet a student’s individual needs; (2) add consideration of student’s management needs that require a significant degree of individualized attention and intervention; (3) add “behaviors that impede learning” as example of student need that might be addressed by one-to-one aide; (4) delete “natural” from “supports, accommodations and/or services” and delete “changes in scheduling” from support examples; (5) add extent a one-to-one aide might enable student to be educated in least restrictive environment be considered together with any potential harmful effect on student or quality of services that might result from assignment of one-to-one aide; (6) add consideration of training/support to be provided to one-to-one aide; (7) provide nothing in regulations prohibits or limits assignment of shared one-to-one aides; (8) add duties to be considered in assignment of one-to-one aide be consistent with duties in 80.5-6.
200.9(f)(2)(ix)(c) and (d) and 200.16(i)(3)(ii) revised to retain indirect special education itinerant services.
200.16(f) deleted and 200.16(i)(3)(ii)(a) revised to require Committee on Preschool Special Education’s (CPSE) recommendation included in a student’s individualized education program (IEP) to identify setting where special education itinerant services (SEIS) will be delivered, identify frequency, duration, intensity and location of direct SEIS and, for students who attend a regular early childhood program, frequency, duration and location of indirect services.
200.16(i)(3)(iii)(d) revised to read that, consistent with the requirements of 200.20(a)(9), special class shall include instructional/ related services as specified in student’s IEP.
200.20(b) revised to: (1) require approved SEIS providers to ensure SEIS is provided, consistent with students’ IEP, as an itinerant service to preschool student at a regular early childhood program or student’s home or other child care location identified by parent; (2) require educational director of approved preschool program hired on or after September 1, 2016, to possess NYS teaching certificate pursuant to 80-3.3 valid for classroom teaching services to students with disabilities, birth-grade 2 or licensure or certification in a related services field; and provide that nothing in regulation requires an approved preschool program hire educational director in addition to executive director, provided that executive director provides on-site direction of program; (2) delete requirements each preschool provider ensure it employs substitute teachers for special class and SEIS and have written policies and procedures for make-up services; (3) revise effective date of requirements for instructional standards to September 1, 2017; add literacy instruction be based on developmentally appropriate, effective and evidence-based instructional practices; and delete ‘essential components’ of background knowledge, phonological awareness, expressive and receptive language, vocabulary development and phonemic awareness; and replace ”ensure” with “promote”, relating to requirement preschool program have procedures for active engagement of parents/guardians; (4) revise effective date by which all programs must establish/implement program-wide system of positive evidence-based practices to September 1, 2017; and (5) add progress monitoring be consistent with frequency or timetable for periodic reports on student’s progress toward annual goals identified in IEP.
These revisions require that Needs and Benefits, Costs, Local Government Mandates, and Compliance Schedule sections of previously published Regulatory Impact Statement be revised to read as follows:
NEEDS AND BENEFITS:
At the April 2015 Regents meeting, SED staff discussed data on outcomes for preschool students with disabilities, including a federal report on suspensions and expulsions of preschool students. SED recommended policy changes to enhance the quality of preschool special education instruction and behavioral supports, improve efficient use of staff resources, improve effectiveness, coordination and continuity of special education services and support inclusion of preschool students with disabilities in regular early childhood programs and activities and in classes with nondisabled peers.
Consistent with the April discussion, the amendments include the following policy changes to improve outcomes for preschool students with disabilities, ages 3-5:
• amends § 200.4(d)(3) to require Committees on Special Education (CSE) and Committees on Preschool Special Education (CPSE) to make certain considerations prior to determining a student needs a one-to-one aide;
• amends § 200.16(i)(3)(ii)(a) to require the CPSE’s recommendation, included in a student’s IEP, identify the site setting where services would be delivered; specify frequency, intensity, duration and location of direct special education itinerant services (SEIS); and, for students attending a regular early childhood program, specify if any, frequency, duration and location for provision of indirect SEIS;
• amends § 200.16(i)(3)(iii)(d) to clarify the special class shall include instructional and related services;
• amends § 200.20(b) to require that each approved preschool program:
o has an appropriately qualified educational director;
o ensures make-up of missed services consistent with Department guidelines and student’s IEP;
o provides instruction in Prekindergarten Foundation for the Common Core, early literacy and emergent reading programs;
o provides instruction based on ages, interests, strengths and needs of children;
o ensures active engagement of parents/guardians in their children’s education;
o establishes/implements program-wide system of positive, evidence-based practices to support social-emotional competence and teach social-emotional skills to preschool students;
o prohibits suspension, expulsion or removal of a preschool child from a special education program/services because of behavior, until the appropriate transfer of the child can be arranged by theCPSE; and
o conducts progress monitoring of student achievement data and regular reports of students’ progress to the students’ parents and to CPSEs.
COSTS:
(a) Costs to State government: None.
(b) Costs to local governments: None. No additional costs for CSEs and CPSEs to make certain considerations under § 200.4(d)(3) prior to determining a student needs a one-to-one aide, since these considerations would be made at student’s initial/annual review IEP meetings.
(c) Costs to regulated parties: No additional costs related to provision in § 200.16(i)(3)(ii) and (iii) because State law requires that SEIS be provided on an itinerant basis at the site setting recommended by CPSE and existing regulations require that special class providers implement IEPs of students admitted to the program, including related services.
No additional costs for hiring educational directors who meet qualifications for education directors of approved preschool programs in § 200.20(b)(5), since these qualifications are consistent with State certification requirements and qualifications for prekindergarten/universal prekindergarten programs and there is no requirement that programs hire additional staff.
No additional costs for requiring in § 200.20(b)(6) that providers ensure make-up of missed services consistent with duration, intensity and location specified in the IEP. Tuition costs established for such programs include consideration of costs necessary to ensure students’ IEPs are implemented.
Requiring in § 200.20(b)(7) that approved programs provide instruction in Prekindergarten Foundation for the Common Core, early literacy and emergent reading programs; provide instruction based on the ages, interests, strengths and needs of the children; ensure the active engagement of parents and/or guardians in the education of their children; and establish and implement a program wide system of positive, evidence-based practices to support social-emotional competence and teach social-emotional skills to preschool students may require programs to adjust their current instructional and behavioral support systems. It is feasible that providers can adjust their programs to meet these standards without additional professional development. For those seeking professional development/support, resources are posted on SED’s website that teachers and others can access at no cost and SED is providing through its funded technical assistance networks, professional development at no cost to providers to assist them to adjust their policies and practices consistent with the standards established. The amendments do not require additional staffing, but may require some approved providers to use existing resources differently to ensure the instructional and behavioral support standards are provided to preschool students with disabilities.
Because providers would continue to be reimbursed for providing special education services, no cost to providers is anticipated for the prohibition in § 200.20(b)(6)(ii)(b) of the suspension, expulsion or removal of a preschool child from a special education program or services because of behavior until the appropriate transfer of the child can be arranged by the CPSE.
No costs for requiring in § 200.20(b)(7)(iii) that preschool special education providers conduct progress monitoring of student achievement data and regular reports of students’ progress to the students’ parents and to the CPSEs, since this requirement is consistent with existing requirement in Commissioner’s Regulation § 200.7(c)(4) that approved programs provide an educational progress report on each student and other data or reports to the referring district or agency.
(d) Costs to SED for implementation and continuing compliance: None.
LOCAL GOVERNMENT MANDATES:
The amendments require that each approved preschool program:
• have an appropriately qualified educational director;
• ensure make-up of missed services consistent with Department guidelines and student’s IEP;
• provide instruction in Prekindergarten Foundation for the Common Core, early literacy and emergent reading programs;
• provide instruction based on ages, interests, strengths and needs of children;
• ensure active engagement of parents and/or guardians in education of their children;
• establish/ implements program-wide system of positive, evidence-based practices to support social-emotional competence and teach social-emotional skills to preschool students; and
• prohibit suspension, expulsion or removal of preschool child from special education program/services because of behavior until appropriate transfer of child can be arranged by CPSE.
The amendments also require certain considerations be made by the CPSE or CSE prior to determining that a student needs a one-to-one aide, including:
• management needs of the student that would require a significant degree of individualized attention and intervention;
• skills and goals the student would need to achieve that will reduce or eliminate the need for the one-to-one aide;
• specific support (e.g., assistance with personal hygiene or behaviors that impede learning) that the one-to-one aide would provide the student;
• other supports, accommodations and/or services that could support the student to meet these needs (e.g., behavioral intervention plan; environmental accommodations or modifications; instructional materials in alternate formats; assistive technology devices; peer-to-peer supports);
• extent (e.g., portions of the school day) or circumstances (e.g., for transitions from class to class) the student would need the assistance of a one-to-one aide;
• staff ratios in the setting where the student will attend school;
• extent to which assignment of a one-to-one aide might enable the student to be educated with nondisabled students and, to the maximum extent appropriate, in the least restrictive environment;
• any potential harmful effect on the student or on the quality of services that he or she needs that might result from the assignment of a one-to-one aide; and
• training and support that shall be provided to the one-to-one aide to help the one-to-one aide understand the student’s disability-related needs, learn effective strategies for addressing the student’s needs, and acquire the necessary skills to support the implementation of the student’s individualized education program.
In addition, the amendments clarify that:
• special class programs shall include instructional services and related services as specified in students’ IEPs;
• SEIS recommendations in the IEP must specify the setting and frequency, duration, location and intensity for such services; and
• SEIS must be provided consistent with IEPs as an itinerant service to the preschool student at a regular early childhood program or the student’s home or other child care location identified by the parent.
COMPLIANCE SCHEDULE:
The amendments generally become effective on July 1, 2016, with certain requirements delayed for required implementation to provide sufficient time for preschool providers to benefit from professional development offered by SED and to implement the new instructional and behavioral standards, as follows:
• 200.20(b)(5) provides that the requirement that approved preschool program providers ensure that educational directors, hired on or after September 1, 2016, to hold certain specified certificates, licenses or certification, as specified in the regulation;
• 200.20(b)(7)(i)(a) requires approved preschool special class program providers to adopt and implement curricula aligned with the New York State Prekindergarten Foundation for the Common Core and other instructional standards specified in the regulation by not later than September 1, 2017;
• section 200.20(b)(7)(ii)(a) requires providers to establish and implement a program-wide system of positive evidence-based practices to support social-emotional competence and teach social-emotional skills to preschool students, including supports and practices as specified in the regulation, by not later than September 1, 2017.
Revised Regulatory Flexibility Analysis
Since publication of a Notice of Proposed Rule Making in the State Register on November 10, 2015, substantial revisions have been made to the proposed rule as described in the Revised Regulatory Impact Statement submitted herewith.
These changes require that the Compliance Requirements section of the previously published Regulatory Flexibility Analysis be revised to read as follows:
2. COMPLIANCE REQUIREMENTS:
The proposed amendment in necessary to implement Regents policy changes to improve outcomes for preschool students with disabilities, ages 3-5, and includes the following changes:
• amends § 200.4(d)(3) to require Committees on Special Education (CSE) and Committees on Preschool Special Education (CPSE) to make certain considerations prior to determining that a student needs a one-to-one aide;
• amends § 200.16(i)(3)(ii)(a) to require that the CPSE’s recommendation, included in a student’s IEP, identify the site setting where services would be delivered; specify the frequency, intensity, duration and location of direct special education itinerant services (SEIS); and, for students who attend attending a regular early childhood program, specify if any, the frequency, duration and location for the provision of indirect SEIS;
• amends § 200.16(i)(3)(iii)(d) to clarify the special class shall include instructional and related services;
• amends § 200.20(b) to require that each approved preschool program:
o has an appropriately qualified educational director;
o ensures make-up of missed services consistent with Department guidelines and student’s IEP;
o provides instruction in the Prekindergarten Foundation for the Common Core, early literacy and emergent reading programs;
o provides instruction based on the ages, interests, strengths and needs of the children;
o ensures the active engagement of parents and/or guardians in the education of their children;
o establishes and implements a program wide system of positive, evidence-based practices to support social-emotional competence and teach social-emotional skills to preschool students;
o prohibits the suspension, expulsion or removal of a preschool child from a special education program or services because of behavior until the appropriate transfer of the child can be arranged by the Committee on Preschool Special Education (CPSE); and
o conducts progress monitoring of student achievement data and regular reports of students’ progress to the students’ parents and to the CPSEs.
Revised Rural Area Flexibility Analysis
Since publication of a Notice of Proposed Rule Making in the State Register on November 10, 2015, substantial revisions have been made to the proposed rule as described in the Revised Regulatory Impact Statement submitted herewith.
These changes require that the Reporting, Recordkeeping and Other Compliance Requirements; and Professional Services and Compliance Costs sections of the previously published Rural Area Flexibility Analysis be revised to read as follows:
2. REPORTING, RECORDKEEPING AND OTHER COMPLIANCE REQUIREMENTS; AND PROFESSIONAL SERVICES:
The proposed amendment is necessary to implement Regents policy changes to improve outcomes for preschool students with disabilities, ages 3-5, and includes the following policy changes:
• amends section 200.4(d)(3) to require Committees on Special Education (CSE) and Committees on Preschool Special Education (CPSE) to make certain considerations prior to determining that a student needs a one-to-one aide;
• amends section 200.16(i)(3)(ii)(a) to require that the CPSE’s recommendation, included in a student’s IEP, identify the site setting where services would be delivered; specify the frequency, intensity, duration and location of direct special education itinerant services (SEIS); and, for students who attend attending a regular early childhood program, specify if any, the frequency, duration and location for the provision of indirect SEIS;
• amends section 200.16(i)(3)(iii)(d) the special class shall include instructional and related services;
• amends section 200.20(b) to require that each approved preschool program:
o has an appropriately qualified educational director;
o ensures make-up of missed services consistent with Department guidelines and student’s IEP;
o provides instruction in the Prekindergarten Foundation for the Common Core, early literacy and emergent reading programs;
o provides instruction based on the ages, interests, strengths and needs of the children;
o ensures the active engagement of parents and/or guardians in the education of their children;
o establishes and implements a program wide system of positive, evidence-based practices to support social-emotional competence and teach social-emotional skills to preschool students;
o prohibits the suspension, expulsion or removal of a preschool child from a special education program or services because of behavior until the appropriate transfer of the child can be arranged by the Committee on Preschool Special Education (CPSE); and
o conducts progress monitoring of student achievement data and regular reports of students’ progress to the students’ parents and to the CPSEs.
3. COMPLIANCE COSTS:
The proposed amendments do not impose any costs on school districts in rural areas. There will be no additional costs for CSEs and CPSEs to make certain considerations under § 200.4(d)(3) prior to determining a student needs a one-to-one aide, since these considerations would be made at student’s initial/annual review IEP meetings. There will be no additional costs related to provision in § 200.16(i)(3)(ii) and (iii), because State law already requires that SEIS be provided on an itinerant basis at the child care location selected by parent, and existing regulations already require that special class providers implement the IEPs of students admitted to the program, which include related services in the student’s IEPs. The remaining provisions in the proposed amendments are generally applicable to approved SEIS providers and approved preschool programs for preschool children with disabilities funded pursuant to Education Law section 4410, and do not impose any costs on school districts in rural areas.
There will be no additional costs for hiring educational directors who meet the qualifications for education directors of approved preschool programs in § 200.20(b)(5), since these qualifications are consistent with State certification requirements and qualifications for prekindergarten/universal prekindergarten programs and there is no requirement that programs hire additional staff.
There will be no additional costs for requiring in § 200.20(b)(6) that providers ensure make-up of missed services consistent with duration, intensity and location specified in the IEP. Tuition costs established for such programs include consideration of costs necessary to ensure students’ IEPs are implemented.
Requiring in § 200.20(b)(7) that approved programs provide instruction in Prekindergarten Foundation for the Common Core, early literacy and emergent reading programs; provide instruction based on the ages, interests, strengths and needs of the children; ensure the active engagement of parents and/or guardians in the education of their children; and establish and implement a program wide system of positive, evidence-based practices to support social-emotional competence and teach social-emotional skills to preschool students may require programs to adjust their current instructional and behavioral support systems. It is feasible that providers can adjust their programs to meet these standards without additional professional development. For those seeking professional development/support, SED has resources posted on its website that teachers and others can access at no cost and SED is providing through its funded technical assistance networks, professional development at no cost to the providers to assist them to adjust their policies and practices consistent with the standards established. The amendments do not require additional staffing, but may require some approved providers to use existing resources differently to ensure the instructional and behavioral support standards are provided to preschool students with disabilities.
Because providers would continue to be reimbursed for providing special education services, there is no cost anticipated for providers for the proposed prohibition in § 200.20(b)(6)(ii)(b) of the suspension, expulsion or removal of a preschool child from a special education program or services because of behavior until the appropriate transfer of the child can be arranged by the CPSE.
There will be no costs for requiring in § 200.20(b)(7)(iii) that preschool special education providers conduct progress monitoring of student achievement data and regular reports of students’ progress to the students’ parents and to the CPSEs, since this requirement is consistent with existing requirement in Commissioner’s Regulation § 200.7(c)(4) that approved programs provide an educational progress report on each student and other data or reports to the referring district or agency.
Revised Job Impact Statement
Since publication of a Notice of Proposed Rule Making in the State Register on November 10, 2015, substantial revisions have been made to the proposed rule as described in the Revised Regulatory Impact Statement submitted herewith.
The proposed amendment in necessary to implement Regents policy changes to to enhance the quality of preschool special education instruction and behavioral supports, improve efficient use of staff resources, improve effectiveness, coordination and continuity of special education services and support inclusion of preschool students with disabilities in regular early childhood programs and activities and in classes with nondisabled peers. The proposed amendment, as revised, will not have an adverse impact on jobs and employment opportunities in New York State. Because it is evident from the nature of the revised proposed amendment that it will not adversely 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 November 10, 2015, the State Education Department (SED) received the following comments.
One-to-One Aides
COMMENT:
Consider training to help aide better address student’s needs and enable student to be educated with nondisabled students. Eliminate unclear terms “natural supports”, “changes in scheduling”, “personal hygiene”, “potential positive benefits and negative impact of aide”. Use terms IEP-recommended assistant or aide. Clarify that more than one student with similar needs may be assigned to aide.
DEPARTMENT RESPONSE:
Proposed regulation has been revised to clarify that one-to-one (1:1) aide means assignment of additional supplementary school personnel to meet individualized needs of student with a disability; add that committee must consider extent to which 1:1 aide would enable student to be in least restrictive environment; add that committee must consider training and support needed by 1:1 aide; and clarify that shared 1:1 aides are not prohibited.
COMMENT:
Don’t use staff ratios to determine need for aide. Distinguish need based on medical vs. behavioral concerns. Consider unique circumstances.
DEPARTMENT RESPONSE:
Staff ratios are an important consideration in determining need for an aide. In classrooms that have a high staff-to-student ratio, or students with fewer needs, existing staff may be able to support a student with increased needs, and a 1:1 aide may not be necessary. In contrast, a student might remain in his/her least restrictive environment with a 1:1 aide to provide support. Proposed considerations will ensure thoughtful assessment of each situation, including medical and behavioral, when determining student’s need for an aide.
COMMENT:
Begin amendment for 2016-17 school year and beyond only; don’t require adjustment of existing IEPs. Track data to assess consequences.
DEPARTMENT RESPONSE:
Revised effective date of proposal is July 1, 2016; and would not require revisions to IEPs in effect at time of adoption. CPSE or CSE would be responsible to monitor student progress data.
Indirect SEIS
COMMENT:
Wrong to eliminate indirect SEIS when State is promoting high-quality education in LRE; arbitrarily eliminated; an integral part of continuum of services; give teachers flexibility to provide consultation and planning.. Exception should be made for children with autism so that applied behavior analysis (ABA) services and parent training can be provided in home. Obligates CPSE to choose certain levels of support. Contracted teachers are unavailable for non-billable team meetings. Unclear when indirect services will occur. Direct teaching time is reduced if it includes consultation and modifications to environment and instruction. In rural areas, travel time will prevent new requirement from being met. Indirect services are cost effective and efficient. Unable to collect indirect services data to determine general education support needed.
DEPARTMENT RESPONSE:
Department agrees that unintended consequences may result from proposed repeal of indirect SEIS. Proposed rule has been revised to retain indirect SEIS and add to section 200.16 (i)(3)(ii)(a) that CPSE is responsible for recommendation of SEIS on a student’s IEP, including the site setting; frequency; duration; intensity; and location of provision of direct services, and the frequency; duration; and location of the provision of indirect services for students attending a regular early childhood program.
COMMENT:
Indirect SEIS services should remain separate and billable or won’t be provided. Difficult to find SEIS teachers, yet they are expected to do more for less reimbursement. Disagree that teacher consult responsibility is retained in proposal. Rates do not support decision; unfunded mandate. Disagree that repeal has no cost to providers. Per NYSED methodology, as reimbursable expenditures increase, so should reimbursement rates, but not so. Unclear how to bill for SEIS services if not on IEP. Clearly define and create formula for indirect services; clarify billable time for nonstandard work week.
DEPARTMENT RESPONSE:
Department agrees that unintended fiscal consequences may result from proposed repeal of indirect SEIS and therefore, indirect SEIS will be retained in regulations.
COMMENT:
Remove “individual services” from definition of SEIS, as it is intended to be a group service, and term “who attends an early childhood program”.
DEPARTMENT RESPONSE:
Department declines to remove “individual services” from definition of SEIS, as SEIS may be provided individually or in a group (i.e., 2-3 students), as indicated on a student’s IEP. The regulatory purpose of indirect SEIS is, for students attending regular early childhood programs, to assist the child’s teacher in adjusting the learning environment or modifying instructional methods.
Provision of SEIS
COMMENT:
Eliminates provision of SEIS in homes; making SEIS contingent on a family’s ability to pay preschool tuition is unfair and illegal. NYSED is not complying with 2012 and 2015 federal guidance stating that districts without a public preschool program must ensure that LRE requirements are met, and may include “providing home-based services". Daycare or preschool enrollment is not required to receive special education services. Some children receive SEIS because special class is unavailable; refusing to provide SEIS to children not in program further violates their rights. Could result in increased special class or SCIS placements. Not consistent with LRE and won’t improve outcomes. Children who aren’t in program and don’t have medical or safety concerns are unable to receive SEIS. Creates a two-tier system consisting of parents who can and cannot afford to pay for preschool services. Creates further hardship on children who are homeless or transient and can’t maintain preschool placement.
DEPARTMENT RESPONSE:
To ensure that there are no unintended consequences from the proposed amendment, it has been revised to clarify that CPSE recommendation for SEIS must specify in IEP, the site where such services will be delivered and location for provision of services within that setting. Consistent with section 4410 of the Laws of New York, SEIS may be provided in the child’s home when recommended by CPSE based on special needs of the student.
COMMENT:
After school hours are necessary to provide instruction and feedback to parents who work. Children in daycare nap in afternoon, but stay later than school day hours. Limits availability for scheduling services and make up sessions. Removal from classroom to receive SEIS and related services will result in reduced classroom instruction. Services provided outside regular school day are necessary if SEIS teacher is unavailable during school day, to avoid excess removals from class, and during summer when program is not in session. Need flexibility in rural areas due to lack of providers. Make exceptions for extenuating circumstances. Delivery of SEIS should be based on needs of child.
DEPARTMENT RESPONSE:
Proposed rule has been revised to ensure that SEIS is provided consistent with students’ IEPs and that CPSEs are clear in their IEP recommendations as to setting, frequency, duration, intensity and location of such services.
COMMENT:
Children should get all services from one agency where SEIS teacher is employed. May be necessary for providers to cut costs by having parents bring child to agency for SEIS sessions.
DEPARTMENT RESPONSE:
While the CPSE must select an approved provider of SEIS for the child, the SEIS provider’s location is not the same as the location for SEIS delivery that must be specified in the IEP and to allow SEIS providers to establish SEIS programs at their agencies would be inconsistent with the purpose of this service.
Special Class and Related Services
COMMENT:
Clarify “school day”. Proposal is overly broad; not always able to provide parent counseling, training and other services during school day. Difficult to provide all related services when child attends half-day program. Clarify if SEIS providers from other agencies need to be hired in order for all services to be delivered during regular school day. Students will be removed from classroom to receive related services, reducing time for classroom learning and to engage with peers. Districts need flexibility to provide education in integrated settings. Will reduce parent contact and make up sessions. Include exception for extenuating circumstances. CSE/CPSE should not be limited in providing FAPE.
DEPARTMENT RESPONSE:
Proposed language has been revised to clarify that a special class must include both instructional services and related services as specified on student’s IEP. In recommending full-day or half-day special class programs, CPSE should consider frequency, duration, intensity and location for related services the student needs to benefit from special education.
COMMENT:
Impedes ability to implement IEPs because of difficulty obtaining some related services in rural areas. Keeps children out of appropriate programs because of inability to develop IEP based on services that program has available. Contingent on program staffing, which is an issue because salaries are better in public schools. Difficult to find bilingual evaluators; shortage of speech and occupational therapists.
DEPARTMENT RESPONSE:
To ensure no unintended consequences of the proposed rule, previously proposed language has been deleted and new proposed language added to clarify that a special class program must include instruction and related services as specified in a student’s IEP. Approved programs should not be only accepting students who “fit” into their program; rather they should be ensuring that students receive the services that they need to benefit from the program.
Educational Directors
COMMENT:
Preschool educational director doesn’t need “specialized preparation for teaching in early childhood”. Should be decided by program and not NYSED. Executive director doesn’t need to meet educational qualifications if program employs appropriately qualified educational program director. No evidence that higher educational requirements results in increased educational outcomes. Lack of providers in rural areas will be made worse because low salaries won’t justify cost of higher educational requirements.
DEPARTMENT RESPONSE:
The proposed rule applies only to individuals hired after the effective date of the proposed regulation and will ensure consistency with the requirements for educational directors of prekindergarten programs in the State.
COMMENT:
Unclear why proposal is only limited to directors hired after September 1, 2016.
DEPARTMENT RESPONSE:
Proposed rule would only affect educational directors hired on or after September 1, 2016 to ensure that requirement is not imposed retroactively, resulting in individuals losing their current jobs.
Make Up Missed Services
COMMENT:
Clarify how to use and “plan” for substitute teachers. Expenses are not reimbursed if more substitutes are employed than needed. Clarify if substitute and SEIS teachers will be compensated the same. If substitutes are underestimated, make-up time frames may be violated. Small programs cannot provide enough work to retain candidates for make-ups. Unclear how a child will benefit from a stranger providing occasional make-up session.
DEPARTMENT RESPONSE:
To ensure unintended consequences, proposed rule to require substitute teachers for SEIS has been deleted.
Program Standards: Instructional
COMMENT:
Ensure essential components of literacy in proposal are consistent with NYS Prekindergarten Foundation for Common Core.
DEPARTMENT RESPONSE:
Proposed rule was revised to delete the list of essential components of early literacy and emergent reading programs.
COMMENT:
Implementation should occur based on child’s cognitive functioning, not by September 1, 2016. Children with significant intellectual challenges need basic prerequisite skills first. Preparation and planning needed prior to implementing. Add “developmentally appropriate” before “instructional practices”.
DEPARTMENT RESPONSE:
While all programs should have been providing instruction toward the State’s learning standards, proposed effective date for this section has been revised to September 1, 2017. Proposed rule has also been revised to ensure that instruction provided to preschool students is developmentally appropriate.
Program Standards: Active Engagement of Parents
COMMENT:
Unclear how to “ensure” parent engagement; clarify who would be penalized if parents aren’t engaged.
DEPARTMENT RESPONSE:
Proposed language has been revised to state that procedures shall be implemented to “promote” the active engagement parents. Teachers and other staff can help to promote the active engagement of parents.
Program Standards: Behavioral Supports
COMMENT:
Due to complexity of implementation, begin September 1, 2017. Need guidance on what types of programs would need to follow this regulation.
DEPARTMENT RESPONSE:
The proposed effective date is revised to September 1, 2017 for all preschool providers.
Program Standards: Progress Monitoring
COMMENT:
Indicate frequency of progress monitoring, as in school-age regulations. Clarify who is responsible for this; burdensome for teachers.
DEPARTMENT RESPONSE:
Proposed rule has been revised to add that regular reports of progress must be written in consistency with frequency for reports to parents as specified in student’s IEP.
