EDU-14-09-00005-P Special Education Programs and Services for Students with Disabilities

4/8/09 N.Y. St. Reg. EDU-14-09-00005-P

NEW YORK STATE REGISTER

VOLUME XXXI, ISSUE 14

April 08, 2009

RULE MAKING ACTIVITIES

EDUCATION DEPARTMENT

PROPOSED RULE MAKING

HEARING(S) SCHEDULED

 

I.D No. EDU-14-09-00005-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, 200.2, 200.4, 200.5, 200.6, 200.9 and 200.15 of Title 8 NYCRR.

Statutory authority:

Education Law, sections 101 (not subdivided), 207 (not subdivided), 3208(1-5), 3602(i)(2), 3713(1) and (2), 4002(1-3), 4308(3), 4355(3), 4401(2-9), 4402(1-7) and 4410(13); and L. 2008, ch. 323

Subject:

Special education programs and services for students with disabilities.

Purpose:

To conform Commissioner's Regulations to changes in the federal IDEA regulations and to ch. 323, L. 2008.

Public hearing(s) will be held at:

2:30 p.m.-5:00 p.m., April 27, 2009 at VESID Binghamton District Office, 44 Hawley St., 7th Fl., Binghamton, NY, Rm. Capacity: 30, Directions: http://www.vesid.nysed.gov/southerntier/directions.htm#binghamton; 2:30 p.m.-5:00 p.m., May 11, 2009 at East Greenbush Community Library, 10 Community Way, Conference Rm. A & B, East Greenbush, NY, Rm. Capacity: 38, Directions: http://www.eastgreenbushlibrary.org/about.asp#directions; 2:30 p.m.-5:00 p.m., May 12, 2009 at VESID Queens District Office, 59-17 Junction Blvd., 20th Fl.*, Corona, NY, Rm. Capacity: 30, Directions: http://www.vesid.nysed.gov/queens/directions.htm

* The New York City public hearing will be conducted by video teleconference.

Interpreter Service:

Interpreter services will be made available to hearing impaired persons, at no charge, upon written request submitted within reasonable time prior to the scheduled public hearing. The written request must be addressed to the agency representative designated in the paragraph below.

Accessibility:

All public hearings have been scheduled at places reasonably accessible to persons with a mobility impairment.

Substance of proposed rule (Full text is posted at the following State website: http://www.vesid.nysed.gov/specialed/timely.htm):

The Commissioner of Education proposes to amend sections 200.1, 200.2, 200.4, 200.5, 200.6, 200.9 and 200.15 of the Commissioner's Regulations, effective July 16, 2009, relating to the provision of special education to students with disabilities. The following is a summary of the substance of the proposed amendments.

Section 200.1, as amended, makes a technical amendment to the definition of travel training; and adds the definition of declassification support services consistent with the definition that was inadvertently deleted from section 100.2(u) of the Commissioner's Regulations.

Section 200.2, as amended, makes a technical amendment relating to board of education written policies.

Section 200.4, as amended, makes a technical amendment and corrects cross citations relating to declassification support services and requests to the committee on special education (CSE) pursuant to section 4005 of the Education Law; and conforms State regulations to federal requirements relating to participation in regular class.

Section 200.5, as amended, makes a technical amendment relating to State complaint procedures; adds certain cross citations; conforms State regulations to federal requirements relating to parent consent, including revocation of parent consent for special education and related services, and meeting notice; and repeals language in the prior notice requirements relating to the provision of a free appropriate public education after graduation with the receipt of a local high school or Regents diploma to be consistent with Education Law.

Section 200.6, as amended, corrects a cross citation relating to staffing requirements.

Section 200.9, as amended, makes a technical amendment relating to financial reporting requirements for approved programs.

Section 200.15, as amended, makes a technical amendment relating to personnel qualifications and conforms State regulations to Chapter 323 of the New York State Laws of 2008 relating to procedures for prevention of abuse, maltreatment or neglect of students in residential placements.

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 Avenue, Albany, NY 12234, [phone], email: [e-mail]

Data, views or arguments may be submitted to:

Rebecca H. Cort, Deputy Commissioner VESID, State Education Department, Room 1606, One Commerce Plaza, Albany, NY 12234, [phone], email: [e-mail]

Public comment will be received until:

45 days after publication of this notice.

Regulatory Impact Statement

STATUTORY AUTHORITY:

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

Education Law section 207 authorizes the Regents and Commissioner to adopt rules and regulations to carry out State laws regarding education.

Education Law section 3208(1-5) provides for attendance and student mental/physical examination requirements.

Education Law section 3602 establishes the apportionment of public monies to school districts employing eight or more teachers. Section 3602(i)(2) defines "declassification pupils" and declassification support services.

Education Law section 3713(1) and (2) authorizes the State and districts to accept federal law making appropriations for education.

Education Law section 4002 establishes responsibilities for education of students in child-care institutions.

Education Law sections 4308(3) and 4355(3) authorize Commissioner's regulations regarding admission to the State School for the Blind and State School for the Deaf.

Education Law section 4401 authorizes Commissioner to approve private day and residential programs serving students with disabilities.

Education Law section 4402 establishes district's duties regarding education of students with disabilities.

Education Law section 4403 outlines Department's and district's responsibilities regarding special education programs/services to students with disabilities. Section 4403(3) authorizes Department to adopt regulations as Commissioner deems in its best interests.

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

Chapter 323 of the Laws of 2008 establish procedures for the prevention and reporting of abuse, maltreatment or neglect of children in residential care.

LEGISLATIVE OBJECTIVES:

The amendments carry 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.

NEEDS AND BENEFITS:

The amendments are necessary to conform the Commissioner's Regulations to the amended federal regulations (34 CFR Part 300) that implement the Individuals with Disabilities Education Act (IDEA) and Chapter 323 of the New York State (NYS) Laws of 2008, and to make certain technical amendments, including correction of cross citations.

Final regulations to amend 34 CFR Part 300 were issued in December 2008 and became effective December 31, 2008. The State must amend its regulations to conform to federal requirements as part of its eligibility for federal funding.

Chapter 323 of the Laws of 2008 amended NYS Social Services Law and Mental Hygiene Law relating to the requirements for the protection of children in residential facilities from abuse and neglect and became effective on January 17, 2009. The legislative changes apply to all approved special education in-state residential programs, Special Act School Districts, State-operated schools, and State-supported schools with a residential component and enhance the protections for children by amending and adding definitions, establishing procedures for investigation of allegations of abuse and neglect, and strengthening consequences for staff whose actions are likely to result in harm to a child.

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 amendments are necessary to conform the Commissioner's Regulations to recent changes in federal IDEA regulations and NYS Social Services Law and Mental Hygiene Law; and to make certain technical amendments, including correction of cross citations, and do not impose any additional costs beyond those imposed by federal and State statutes and regulations.

LOCAL GOVERNMENT MANDATES:

The amendments are necessary to conform the Commissioner's Regulations to recent changes in the federal IDEA regulations and NYS Social Services Law and Mental Hygiene Law, and do not impose any additional program, service, duty or responsibility upon local governments beyond those imposed by federal and State statutes and regulations.

Section 200.1, as amended, makes a technical amendment to the definition of travel training; and adds the definition of declassification support services consistent with the definition of such term in Education Law.

Section 200.2, as amended, makes a technical amendment relating to board of education written policies.

Section 200.4, as amended, makes a technical amendment and corrects cross citations relating to declassification support services and requests to the committee on special education (CSE) pursuant to section 4005 of the Education Law; and conforms State regulations to federal requirements relating to participation in regular class.

Section 200.5, as amended, makes a technical amendment relating to State complaint procedures; adds certain cross citations; conforms State regulations to federal requirements relating to parent consent, including revocation of parent consent for special education and related services, and meeting notice; and repeals language in the prior notice requirements relating to the provision of a free appropriate public education after graduation with the receipt of a local high school or Regents diploma to be consistent with Education Law.

Section 200.6, as amended, corrects a cross citation relating to staffing requirements.

Section 200.9, as amended, makes a technical amendment relating to financial reporting requirements for approved programs.

Section 200.15, as amended, makes a technical amendment relating to personnel qualifications and conforms State regulations to Chapter 323 of the New York State Laws of 2008 relating to procedures for prevention of abuse, maltreatment or neglect of students in residential placements.

PAPERWORK:

Consistent with federal requirements, when a parent of a student revokes consent in writing for the continued provision of special education programs and services, the proposed rule would require school districts to provide prior written notice before ceasing the provision of special education programs and services.

Consistent with the requirements of Chapter 323 of the Laws of 2008, the proposed rule would add reporting requirements when there is a suspected case of child abuse, maltreatment or neglect of a child in residential care.

DUPLICATION:

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

ALTERNATIVES:

The amendments are necessary to conform the Commissioner's Regulations to recent changes in State statute and the federal IDEA regulations, and there are no significant alternatives and none were considered.

FEDERAL STANDARDS:

The amendments are necessary to conform the Commissioner's Regulations to recent changes in the federal IDEA regulations (34 CFR Part 300) and State statute (as amended by Chapter 323 of the Laws of 2008) and do not exceed any minimum federal standards.

COMPLIANCE SCHEDULE:

It is anticipated that regulated parties will be able to achieve compliance with the amendments by their effective date.

Regulatory Flexibility Analysis

Small Businesses:

The amendments are necessary to conform the Commissioner's Regulations to the amended federal regulations (34 CFR Part 300) that implement the Individuals with Disabilities Education Act (IDEA), which became effective December 31, 2008, and Chapter 323 of the New York State (NYS) Laws of 2008, which became effective January 17, 2009; and to make certain technical amendments, including correction of cross citations, and do 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 rule 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 amendments apply to all public school districts, boards of cooperative educational services (BOCES), State-operated and State-supported schools and approved private schools.

COMPLIANCE REQUIREMENTS:

The amendments are necessary to conform the Commissioner's Regulations to the amended federal regulations (34 CFR Part 300) that implement the IDEA, which became effective December 31, 2008, and Chapter 323 of the NYS Laws of 2008, which became effective January 17, 2009, and do not impose any additional compliance requirements upon local governments beyond those imposed by federal statutes and regulations.

Section 200.1, as amended, makes a technical amendment to the definition of travel training; and adds the definition of declassification support services consistent with the definition that was inadvertently deleted from section 100.2(u) of the Commissioner's Regulations.

Section 200.2, as amended, makes a technical amendment relating to board of education written policies.

Section 200.4, as amended, makes a technical amendment and corrects cross citations relating to declassification support services and requests to the committee on special education (CSE) pursuant to section 4005 of the Education Law; and conforms State regulations to federal requirements relating to participation in regular class.

Section 200.5, as amended, makes a technical amendment relating to State complaint procedures; adds certain cross citations; conforms State regulations to federal requirements relating to parent consent, including revocation of parent consent for special education and related services, and meeting notice; and repeals language in the prior notice requirements relating to the provision of a free appropriate public education after graduation with the receipt of a local high school or Regents diploma to be consistent with Education Law.

Section 200.6, as amended, corrects a cross citation relating to staffing requirements.

Section 200.9, as amended, makes a technical amendment relating to financial reporting requirements for approved programs.

Section 200.15, as amended, makes a technical amendment relating to personnel qualifications and conforms State regulations to Chapter 323 of the New York State Laws of 2008 relating to procedures for prevention of abuse, maltreatment or neglect of students in residential placements.

PROFESSIONAL SERVICES:

The amendments are necessary to conform the Commissioner's Regulations to the amended federal regulations (34 CFR Part 300) that implement IDEA, which became effective December 31, 2008, and Chapter 323 of the NYS Laws of 2008, which became effective January 17, 2009, and do not impose any additional professional service requirements on local governments beyond those imposed by such federal statutes and regulations and State statutes.

COMPLIANCE COSTS:

The proposed amendments are necessary to conform the Commissioner's Regulations to recent changes in federal IDEA regulations and NYS Social Services Law and Mental Hygiene Law; and to make certain technical amendments, including correction of cross citations. School districts and other local educational agencies (LEAs) are required to comply with IDEA statutes and regulations as a condition to their receipt of federal funding. The proposed amendments do not impose any additional costs beyond those imposed by such federal statutes and regulations and State statutes.

ECONOMIC AND TECHNOLOGICAL FEASIBILITY:

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

MINIMIZING ADVERSE IMPACT:

The amendments are necessary to conform the Commissioner's Regulations to Chapter 323 of the Laws of 2008 and recent changes in the federal IDEA regulations.

School districts and other LEAs are required to comply with IDEA statutes and regulations as a condition to their receipt of federal funding. The proposed conforming amendments have been carefully drafted to meet federal statutory and regulatory requirements and do 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.

LOCAL GOVERNMENT PARTICIPATION:

Copies of the proposed amendments have been provided to District Superintendents with the request that they distribute them to school districts within their supervisory districts for review and comment. The State Education Department will be conducting public hearings on the proposed amendments in April and/or May 2009.

Rural Area Flexibility Analysis

TYPES AND ESTIMATED NUMBERS OF RURAL AREAS:

The proposed amendments 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.

REPORTING, RECORDKEEPING AND OTHER COMPLIANCE REQUIREMENTS AND PROFESSIONAL SERVICES:

The amendments are necessary to conform the Commissioner's Regulations to the amended federal regulations (34 CFR Part 300) that implement the Individuals with Disabilities Education Act (IDEA), which became effective December 31, 2008, and Chapter 323 of the New York State (NYS) Laws of 2008, which became effective January 17, 2009; and to make certain technical amendments, including correction of cross citations, and do not impose any additional compliance requirements upon rural areas beyond those imposed by federal statutes and regulations and State law.

Section 200.1, as amended, makes a technical amendment to the definition of travel training; and adds the definition of declassification support services consistent with the statutory definition of such term.

Section 200.2, as amended, makes a technical amendment relating to board of education written policies.

Section 200.4, as amended, makes a technical amendment and corrects cross citations relating to declassification support services and requests to the committee on special education (CSE) pursuant to section 4005 of the Education Law; and conforms State regulations to federal requirements relating to participation in regular class.

Section 200.5, as amended, makes a technical amendment relating to State complaint procedures; adds certain cross citations; conforms State regulations to federal requirements relating to parent consent, including revocation of parent consent for special education and related services, and meeting notice; and repeals language in the prior notice requirements relating to the provision of a free appropriate public education after graduation with the receipt of a local high school or Regents diploma to be consistent with Education Law.

Section 200.6, as amended, corrects a cross citation relating to staffing requirements.

Section 200.9, as amended, makes a technical amendment relating to financial reporting requirements for approved programs.

Section 200.15, as amended, makes a technical amendment relating to personnel qualifications and conforms State regulations to Chapter 323 of the New York State Laws of 2008 relating to procedures for prevention of abuse, maltreatment or neglect of students in residential placements.

The amendments do not impose any additional professional service requirements on rural areas, beyond those imposed by such federal statutes and regulations and State statutes.

COSTS:

The proposed amendments are necessary to conform the Commissioner's Regulations to recent changes in federal IDEA regulations and NYS Social Services Law and Mental Hygiene Law; and to make certain technical amendments, including correction of cross citations. School districts and other local educational agencies (LEAs) are required to comply with IDEA statutes and regulations as a condition to their receipt of federal funding. The proposed amendments do not impose any additional costs beyond those imposed by such federal statutes and regulations and State statutes.

MINIMIZING ADVERSE IMPACT:

The amendments are necessary to conform the Commissioner's Regulations to recent changes in the federal IDEA regulations and Chapter 323 of the Laws of 2008.

School districts and other LEAs are required to comply with IDEA statutes and regulations as a condition to their receipt of federal funding. The proposed conforming amendments have been carefully drafted to meet federal statutory and regulatory requirements and do 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.

RURAL AREA PARTICIPATION:

The proposed rule was submitted for discussion and comment to the Department's Rural Education Advisory Committee, which includes representatives of school districts in rural areas. The State Education Department will be conducting public hearings on the proposed rule.

Job Impact Statement

The proposed rule is necessary in order to ensure compliance with federal regulations and State law relating to the education of students with disabilities, ages 3-21; and to make certain technical amendments, including correction of cross citations. The proposed rule will not have a substantial impact on jobs and employment opportunities. Because it is evident from the nature of the 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.