EDU-19-08-00006-P Special Education Programs and Services

5/7/08 N.Y. St. Reg. EDU-19-08-00006-P

NEW YORK STATE REGISTER

VOLUME XXX, ISSUE 19

May 07, 2008

RULE MAKING ACTIVITIES

EDUCATION DEPARTMENT

PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. EDU-19-08-00006-P

Special Education Programs and Services

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

Proposed action:

Addition of section 177.2 to Title 8 NYCRR.

Statutory authority:

Education Law, sections 207 (not subdivided) and 3602-c(7) and L. 2007, ch. 378, section 4

Subject:

Special education programs and services.

Purpose:

To prescribe a dispute resolution mechanism regarding the costs for special education services provided to a non-resident New York State student with a disability who is parentally placed in a nonpublic school in New York State.

Text of proposed rule:

Section 177.2 of the Regulations of the Commissioner of Education is added, effective July 17, 2008, as follows:

§ 177.2 Claim by a school district to recover costs for special education provided to non-resident students pursuant to Education Law section 3602-c(2).

(a) Definitions. For purposes of this section:

(1) “Non-resident student” means a student with a disability who is a legal resident of a school district in New York State, who is placed by the student's parent, guardian or person having legal custody of the student, in a nonpublic elementary or secondary school located in another school district in New York State.

(2) “School district of residence” means the school district in which the non-resident student legally resides.

(3) “School district of location” means the school district in which the nonpublic elementary or secondary school attended by the non-resident student is located.

(b) A school district of location may recover from the school district of residence the special education services costs, evaluation costs and committee on special education administrative costs for a nonresident student in accordance with the following procedures:

(1) Where the parent, guardian or person legally having custody of a non-resident student has provided written consent to the sharing between the school district of location and the school district of residence, of personally identifiable information concerning such student from records collected or maintained pursuant to Part B of the Individuals with Disabilities Education Act [between the school district of location and the school district of residence], the school district of location may submit a claim, subject to the requirements of paragraph (3) of this subdivision, to the school district of residence for the evaluation costs, committee on special education administrative costs and special education services costs for the non-resident student. The school district of residence shall pay the school district of location the costs claimed, unless the school district of residence disagrees with such costs and requests an administrative review by the Commissioner pursuant to paragraph (4) of this subdivision.

(2) Where the parent, guardian or person legally having custody of a non-resident student has refused to provide written consent to the sharing between the school district of location and the school district of residence, of personally identifiable information concerning such student from records collected or maintained pursuant to Part B of the Individuals with Disabilities Education Act, the school district of location may submit a claim to the State Education Department, on a form prescribed by the Commissioner and subject to the requirements of paragraph (3) of this subdivision, for reimbursement of evaluation costs, committee on special education administrative costs and special education services for the non-resident student. Upon verification of the amount of such claim, the Commissioner shall certify the amount of the claim to the State Comptroller and request an intercept of funds from the school district of residence to the school district of location.

(3) The amount charged by the school district of location for the costs attributable to providing special education services to the non-resident student, the costs of conducting evaluation(s) of such student and the committee on special education administrative costs attributable to such student shall not exceed the actual cost to the school district of location, after deducting costs attributable to such student that are paid with federal or state funds. The state aid attributable to such a student with a disability shall be determined in accordance with a methodology set forth in guidelines of the Commissioner. The federal aid attributable to such a student with a disability shall be the per capita amount of funds received by the school district pursuant to sections 611 and 619 of Part B of the Individuals with Disabilities Education Act, 20 U.S.C. §§ 1411 and 1419 (United States Code, 2000 edition, Supplement V, Volume 3; Superintendent of Documents, U. S. Government Printing Office, Stop SSOP, Washington, D.C. 20402-0001: 2007 — available at the Office of Vocational and Educational Services for Individuals with Disabilities, Room 1624, One Commerce Plaza, Albany, New York 12234), as determined pursuant to guidelines of the Commissioner.

(4) Administrative review of claim.

(i) A school district of residence that disagrees with the amount of costs charged by the school district of location may submit a request for an administrative review of such claim to the State Education Department on a form prescribed by the Department. A request for an administrative review by the Department, shall be submitted not later than one year from the date of receipt of the claim. Such administrative review shall be the exclusive remedy for resolution of disputes pursuant to this section and the determination of the Commissioner or the Commissioner's designee upon such review shall be the final determination of the Department.

(ii) Upon receipt of such claim, the Department shall require the school district of location to provide: (a) verification of the non-resident student's school district of residence; (b) a certification that the costs attributable to such student represent the actual costs to the school district of location; and (c) a detailed accounting of such claim including, but not limited to, when the costs were incurred and their relationship to the reimbursable activities. Upon request of the Department, the school district of location shall provide any applicable source documents to verify the claim.

(iii) The review shall culminate in a determination by the Commissioner or the Commissioner's designee and shall be limited to a determination of whether the claimed costs were attributable to the non-resident student and reflect the actual cost to the school district of location pursuant to paragraph (3) of this subdivision, and whether such student resided in the school district from which recovery is sought. The school district of residence shall pay the costs to the school district of location, in accordance with the determination of the Commissioner or the Commissioner's designee. The Commissioner or the Commissioner's designee may modify the amount claimed by the school district of location, as necessary, to reflect the actual cost to such school district.

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

Anne Marie Koschnick, Legal Assistant, Office of Counsel, Education Department, State Education Bldg., Rm. 148, Albany, NY 12234, [phone], e-mail: [e-mail]

Data, views or arguments may be submitted to:

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

Public comment will be received until:

45 days after publication of this notice.

Regulatory Impact Statement

STATUTORY AUTHORITY:

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

Education Law section 3602-c establishes district responsibilities for provision of special education services to students enrolled in nonpublic schools.

Section 4 of Chapter 378 of the Laws of 2007 amended subdivision 7 of section 3602-c of the Education Law, relating to the provision of special education services to parentally-placed nonpublic school students. Section 3602-c, consistent with the federal requirements of the Individuals with Disabilities Education Act (IDEA), requires the school district where a nonpublic school is located (district of location) to be the provider of special education services to a student with a disability. Subdivision 7 of section 3602-c entitles the school district of location to recover costs of special education services, costs of individual evaluations provided for the student and costs of committee on special education (CSE) administration directly from the district of residence of the student (district where the student's parents reside). The amount charged by the school district of location for services, evaluation and CSE administrative costs cannot exceed the actual cost to the school district of location, after deducting any costs paid with federal or State funds. The law further requires the Commissioner to adopt regulations prescribing a dispute resolution mechanism that will be available to a school district of residence where such district disagrees with the amount of the costs charged by the school district of location.

LEGISLATIVE OBJECTIVES:

The proposed regulation is necessary to carry out the legislative objectives in section Education Law section 3602-c(7), as amended by Chapter 378 of the Laws of 2007.

NEEDS AND BENEFITS:

The proposed amendment is necessary to implement Education Law section 3602-c(7), as amended by Chapter 378 of the Laws of 2007, which entitles the school district of location to recover costs to provide special education services to a New York State resident student with a disability who is parentally placed in a nonpublic school located in such district, from a school district of residence; and requires the Commissioner to adopt regulations prescribing a dispute resolution mechanism regarding the amount of charges for special education services provided to a nonresident parentally placed student with a disability.

COSTS:

The proposed regulation is necessary to implement Education Law section 3602-c(7), as amended by Chapter 378 of the Laws of 2007, and will not impose any costs beyond those inherent in the statute. The proposed regulation will:

(1) Establish the process by which a claim by a school district where a nonpublic school is located for costs to provide special education services to a New York State resident student with a disability who resides in another school district may be made to the school district where that student resides; and

(2) Describe the process for an administrative review by the Commissioner when the school district of residence disputes the amount of the claim by the district of location for such services.

The proposed regulation does not impose any additional compliance requirements on school district. The claiming of reimbursable cost by a school district of location, or the initiating of administrative review by the Commissioner of disputed costs by a school district of residence, is at the discretion of each school district.

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: The State Education Department will incur administrative costs to review documentation and render decisions regarding the claim dispute process and to process claims for students where the parents have not provided consent to share personally identifiable information about their child between the school district providing services and the school district of residence. It is anticipated that these costs will be absorbed using existing Department staff and resources.

LOCAL GOVERNMENT MANDATES:

In general, the proposed regulation is necessary to implement 3602-c(7) of the Education Law, as amended by Chapter 378 of the Laws of 2007, and does not impose any additional program, service, duty or responsibility upon local governments beyond those imposed by the statute. The claiming of reimbursable cost by a school district of location, or the initiating of administrative review by the Commissioner of disputed costs by a school district of residence, is at the discretion of each school district.

The proposed amendment would add a new Commissioner's Regulations section 177.2 to establish the process by which a claim by a school district of location for reimbursement of its costs to provide special education services to a New York State resident student with a disability who is parentally placed in a nonpublic school located in such district may be made to the school district where that student resides; and describes the process for an administrative review by the Commissioner when the school district of residence disputes the amount of the claim by the district of location for such services.

PAPERWORK:

The proposed regulation would require that, in instances where parental consent to share personally identifiable special education information about the student is not provided, the school district of location shall submit its reimbursement claim to the State Education Department, on a form prescribed by the Commissioner for reimbursement of evaluation costs, committee on special education administrative costs and special education services for the non-resident student. Upon verification of the amount of such claim, the Commissioner shall certify the amount of the claim to the State Comptroller and request an intercept of funds from the school district of residence to the school district of location. In instances where parental consent to share personally identifiable special education information is provided, the school district of location is entitled to directly recover its costs from the school district of location.

The proposed regulation also requires that requests for administrative review by the State Education Department of disputed claim amounts be submitted on forms prescribed by the Department not later than one year from the date of receipt of the claim. Upon receipt of such claim, the Department shall require the school district of location to provide verification of the non-resident student's school district of residence; a certification that the costs attributable to such student represent the actual costs to the school district of location; and a detailed accounting of such claim including, but not limited to, when the costs were incurred and their relationship to the reimbursable activities. Upon request of the Department, the school district of location shall provide any applicable source documents to verify the claim.

DUPLICATION:

The proposed regulation will not duplicate, overlap or conflict with any other State or federal statute or regulation and is necessary to implement Education Law section 3602-c(7), as amended by Chapter 378 of the Laws of 2007.

ALTERNATIVES:

In general, the proposed regulation is necessary to implement Education Law section 3602-c(7), as amended by Chapter 378 of the Laws of 2007, and to that extent there were no significant alternatives and none were considered. Regarding the dispute resolution mechanism, the Department considered various procedures to ensure the reimbursement to the school district of location for the cost of special education services to nonresident NYS students, including binding arbitration, and determined that the proposed amendment would present the most timely and cost effective resolution of such disagreements.

FEDERAL STANDARDS:

The proposed regulation relating to reimbursement of cost and a dispute resolution mechanism is not required by federal law or regulations, but is necessary to implement 3602-c(7) of the Education Law, as amended by Chapter 378 of the Laws of 2007. There are no applicable Federal statutes, regulations or other requirements.

COMPLIANCE SCHEDULE:

It is anticipated that regulated parties will be able to achieve compliance with the proposed regulation by its effective date.

Regulatory Flexibility Analysis

Small Businesses:

The proposed regulation is necessary to implement Education Law section 3602-c(7), as amended by Section 4 of Chapter 378 of the Laws of 2007, which entitles the school district of location to recover its costs of providing special education services to a New York State resident student with a disability who is parentally placed in a nonpublic school located in such district, from the student's district of residence. The proposed regulation 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 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 regulation applies to all public school districts in the State.

COMPLIANCE REQUIREMENTS:

The proposed regulation is necessary to implement Education Law section 3602-c(7), as amended by Chapter 378 of the Laws of 2007, which became effective June 30, 2007, and does not impose any additional compliance requirements upon local governments beyond those imposed by the statute. The claiming of reimbursable cost by a school district of location, or the initiating of administrative review by the Commissioner of disputed costs by a school district of residence, is at the discretion of each school district.

The proposed regulation would add a new Commissioner's Regulation section 177.2 to establish the process by which a claim by a school district of location for reimbursement of its costs to provide special education services to a New York State resident student with a disability who is parentally placed in a nonpublic school located in such district may be made to the school district where that student resides; and describes the process for an administrative review by the Commissioner when the school district of residence disputes the amount of the claim by the district of location for such services.

The proposed regulation would require that, in instances where parental consent to share personally identifiable special education information about the student is not provided, the school district of location shall submit its reimbursement claim to the State Education Department, on a form prescribed by the Commissioner for reimbursement of evaluation costs, committee on special education administrative costs and special education services for the non-resident student. Upon verification of the amount of such claim, the Commissioner shall certify the amount of the claim to the State Comptroller and request an intercept of funds from the school district of residence to the school district of location. In instances where parental consent to share personally identifiable special education information is provided, the school district of location is entitled to directly recover its costs from the school district of location.

The proposed regulation also requires that requests for administrative review by the State Education Department of disputed claim amounts be submitted on forms prescribed by the Department not later than one year from the date of receipt of the claim. Upon receipt of such claim, the Department shall require the school district of location to provide verification of the non-resident student's school district of residence; a certification that the costs attributable to such student represent the actual costs to the school district of location; and a detailed accounting of such claim including, but not limited to, when the costs were incurred and their relationship to the reimbursable activities. Upon request of the Department, the school district of location shall provide any applicable source documents to verify the claim.

PROFESSIONAL SERVICES:

The proposed regulation is necessary to implement Education Law section 3602-c(7), as amended by Chapter 378 of the Laws of 2007, which became effective June 30, 2007, and does not impose any additional professional service requirements on local governments.

COMPLIANCE COSTS:

The proposed regulation is necessary to implement Education Law section 3602-c(7), as amended by Chapter 378 of the Laws of 2007, and will not impose any costs beyond those inherent in the statute. The proposed regulation will:

(1) Establish the process by which a claim by a school district where a nonpublic school is located for costs to provide special education services to a New York State resident student with a disability who resides in another school district may be made to the school district where that student resides; and

(2) Describe the process for an administrative review by the Commissioner when the school district of residence disputes the amount of the claim by the district of location for such services.

The proposed regulation does not impose any additional compliance requirements or costs on school districts beyond those inherent in the statute. The claiming of reimbursable cost by a school district of location, or the initiating of administrative review by the Commissioner of disputed costs by a school district of residence, is at the discretion of each school district.

ECONOMIC AND TECHNOLOGICAL FEASIBILITY:

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

MINIMIZING ADVERSE IMPACT:

The proposed regulation is necessary to implement Education Law section 3602-c(7), as amended by Chapter 378 of the Laws of 2007, and to that extent, does not exceed any minimum State standards. The proposed regulation has been carefully drafted to meet State statutory requirements and does not impose any additional costs or compliance requirements on school districts beyond those inherent in the statute.

The proposed regulation would add a new Commissioner's Regulation section 177.2 to establish the process by which a claim by a school district of location for reimbursement of its costs to provide special education services to a New York State resident student with a disability who is parentally placed in a nonpublic school located in such district may be made to the school district where that student resides; and describes the process for an administrative review by the Commissioner when the school district of residence disputes the amount of the claim by the district of location for such services. The claiming of reimbursable cost by a school district of location, or the initiating of administrative review by the Commissioner of disputed costs by a school district of residence, is at the discretion of each school district.

LOCAL GOVERNMENT PARTICIPATION:

Copies of the proposed regulation will be provided to District Superintendents with the request that they distribute it to school districts within their supervisory districts for review and comment.

Rural Area Flexibility Analysis

TYPES AND ESTIMATED NUMBERS OF RURAL AREAS:

The proposed regulation will apply to all public school districts 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 proposed regulation is necessary to implement Education Law section 3602-c(7), as amended by Chapter 378 of the Laws of 2007, which became effective June 30, 2007, and does not impose any additional reporting, recordkeeping and other compliance requirements upon rural areas beyond those imposed by the statute.

The proposed regulation would add a new Commissioner's Regulation section 177.2 to establish the process by which a claim by a school district of location for reimbursement of its costs to provide special education services to a New York State resident student with a disability who is parentally placed in a nonpublic school located in such district may be made to the school district where that student resides; and describes the process for an administrative review by the Commissioner when the school district of residence disputes the amount of the claim by the district of location for such services.

The proposed regulation would require that, in instances where parental consent to share personally identifiable special education information about the student is not provided, the school district of location shall submit its reimbursement claim to the State Education Department, on a form prescribed by the Commissioner for reimbursement of evaluation costs, committee on special education administrative costs and special education services for the non-resident student. Upon verification of the amount of such claim, the Commissioner shall certify the amount of the claim to the State Comptroller and request an intercept of funds from the school district of residence to the school district of location. In instances where parental consent to share personally identifiable special education information is provided, the school district of location is entitled to directly recover its costs from the school district of location.

The proposed regulation also requires that requests for administrative review by the State Education Department of disputed claim amounts be submitted on forms prescribed by the Department not later than one year from the date of receipt of the claim. Upon receipt of such claim, the Department shall require the school district of location to provide verification of the non-resident student's school district of residence; a certification that the costs attributable to such student represent the actual costs to the school district of location; and a detailed accounting of such claim including, but not limited to, when the costs were incurred and their relationship to the reimbursable activities. Upon request of the Department, the school district of location shall provide any applicable source documents to verify the claim.

The proposed regulation does not impose any additional professional service requirements on local governments.

COSTS:

The proposed regulation is necessary to implement Education Law section 3602-c(7), as amended by Chapter 378 of the Laws of 2007, and will not impose any compliance requirements or costs on school districts in rural areas beyond those inherent in the statute. The proposed regulation will:

(1) Establish the process by which a claim by a school district where a nonpublic school is located for costs to provide special education services to a New York State resident student with a disability who resides in another school district may be made to the school district where that student resides; and

(2) Describe the process for an administrative review by the Commissioner when the school district of residence disputes the amount of the claim by the district of location for such services.

The claiming of reimbursable cost by a school district of location, or the initiating of administrative review by the Commissioner of disputed costs by a school district of residence, is at the discretion of each school district.

MINIMIZING ADVERSE IMPACT:

The proposed regulation is necessary to implement Education Law section 3602-c(7), as amended by Chapter 378 of the Laws of 2007, and to that extent, does not exceed any minimum State standards. The proposed regulation has been carefully drafted to meet State statutory requirements and does not impose any additional costs or compliance requirements on school districts beyond those inherent in the statute. Since these requirements apply to all school districts in the State, it is not possible to adopt different standards for school districts in rural areas.

The proposed regulation would add a new Commissioner's Regulation section 177.2 to establish the process by which a claim by a school district of location for reimbursement of its costs to provide special education services to a New York State resident student with a disability who is parentally placed in a nonpublic school located in such district may be made to the school district where that student resides; and describes the process for an administrative review by the Commissioner when the school district of residence disputes the amount of the claim by the district of location for such services. The claiming of reimbursable cost by a school district of location, or the initiating of administrative review by the Commissioner of disputed costs by a school district of residence, is at the discretion of each school district.

RURAL AREA PARTICIPATION:

Copies of the proposed rule will be submitted for discussion and comment to the Department's Rural Education Advisory Committee, which includes representatives of school districts in rural areas.

Job Impact Statement

The proposed rule is necessary to implement Education Law section 3602-c(7), as amended by Section 4 of Chapter 378 of the Laws of 2007, which entitles the school district of location to recover its costs of providing special education services to a New York State resident student with a disability who is parentally placed in a nonpublic school located in such district, from the student's school district of residence; and requires the Commissioner to adopt regulations prescribing a dispute resolution mechanism regarding the amount of charges for special education services provided to a nonresident parentally-placed student with a disability. 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.