EDU-18-14-00006-P Parental Consent for the Initial Provision of Special Education Services/Programs to a Student with a Disability for July/August

5/7/14 N.Y. St. Reg. EDU-18-14-00006-P

NEW YORK STATE REGISTER

VOLUME XXXVI, ISSUE 18

May 07, 2014

RULE MAKING ACTIVITIES

EDUCATION DEPARTMENT

PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. EDU-18-14-00006-P

Parental Consent for the Initial Provision of Special Education Services/Programs to a Student with a Disability for July/August

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

Proposed Action:

Amendment of section 200.5(b)(1) of Title 8 NYCRR.

Statutory authority:

Education Law, sections 101(not subdivided), 207(not subdivided), 305(1), (2), (20), 4402(2) and 4403(3); and L. 2014, ch. 56, part A, section 16-a

Subject:

Parental consent for the initial provision of special education services/programs to a student with a disability for July/August.

Purpose:

To conform the Commissioner's Regulations to section 16-a of part A of chapter 56 of the Laws of 2014.

Text of proposed rule:

Paragraph (1) of subdivision (b) of section 200.5 of the Regulations of the Commissioner of Education is amended, effective July 30, 2014 as follows:

(1) The school district must make reasonable efforts to obtain written informed consent of the parent, as such term is defined in section 200.1(l) of this Part, and must have a detailed record of its attempts, and the results of those attempts. Written consent of the parent is required:

(i) . . .

(ii) prior to the initial provision of special education to a student who has not previously been identified as having a disability. Consent for initial evaluation may not be construed as consent for initial provision of special education services; and

[(iii) prior to initial provision of special education services in a 12-month special service and/or program;]

[(iv)] (iii). . .

Text of 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, [phone], email: [e-mail]

Data, views or arguments may be submitted to:

James P. DeLorenzo, Assistant Commissioner P-12, State Education Department, Office of Special Education, State Education Building, Room 309, 89 Washington Ave., Albany, NY 12234, [phone], email: [e-mail]

Public comment will be received until:

45 days after publication of this notice.

Regulatory Impact Statement

1. STATUTORY AUTHORITY:

Education Law section 101 continues the existence of the Education Department, with the Board of Regents at its head and the Commissioner of Education 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 empowers the Regents and Commissioner of Education to adopt rules and regulations to carry out State education laws and functions and duties conferred on the Education Department by Law.

Education Law section 305(1) and (2) provide the Commissioner, as chief executive officer of the State education system, with general supervision over schools and institutions subject to the provisions of education law, and responsibility for executing Regents policies. Section 305(20) authorizes the Commissioner with such powers and duties as are charged by the Regents.

Education Law section 4402 establishes school district duties for the education of students with disabilities.

Education Law section 4403 establishes Department and school district responsibilities concerning education programs and services to students with disabilities. Section 4403(3) authorizes the Department to adopt rules and regulations as the Commissioner deems in their best interests.

Section 16-a of Part A of Chapter 56 of the Laws of 2014 amended Education Law section 4402(2)(a) to eliminate the requirement for parental consent prior to the initial provision of special education services and programs during the months of July and August.

2. LEGISLATIVE OBJECTIVES:

The proposed amendment is consistent with the authority conferred by the above statutes and is necessary to conform the Commissioner's Regulations to Chapter 56 of the New York State Laws of 2014, which became effective March 31, 2014.

3. NEEDS AND BENEFITS:

The proposed amendment is necessary to conform the Commissioner's Regulations to Chapter 56 of the New York State Laws of 2014. Section 16-a of Part A of Chapter 56 amended Education Law section 4402(2)(a) to eliminate the requirement for parental consent prior to the initial provision of special education services and programs during the months of July and August.

4. COSTS:

a. Costs to State government: None.

b. Costs to local governments: None.

c. Costs to regulated parties: None.

d. Costs to the State Education Department of implementation and continuing compliance: None.

The proposed amendment merely conforms the Commissioner's Regulations to Chapter 56 of the Laws of 2014. It does not impose any additional costs beyond those imposed by the statute. Consistent with the statute, the proposed amendment may reduce costs to school districts that are associated with obtaining parental consent prior to the initial provision of special education services and programs to a student with a disability during the months of July and August.

5. LOCAL GOVERNMENT MANDATES:

The proposed amendment merely conforms the Commissioner's Regulations to Chapter 56 of the Laws of 2014. It does not impose any additional program, service, duty or responsibility upon local governments beyond those imposed by the statute. Consistent with the statute, the proposed amendment may reduce costs to school districts and will provide some relief from procedural compliance requirements by minimizing the instances when consent from parents must be obtained.

Section 200.5(b)(1), as amended, repeals the requirement for the written consent of the parent prior to the initial provision of special education services in a 12-month special service and/or program.

6. PAPERWORK:

The proposed amendment merely conforms the Commissioner’s Regulations to Chapter 56 of the Laws of 2014. It does not impose any additional paperwork requirements. The proposed amendment eliminates the requirement for school districts to obtain parental consent prior to the initial provision of special education services and programs to a student with a disability during the months of July and August and, therefore, also eliminates the need for districts to give parents prior written notice at the same time that it requests consent for such services. This will result in a reduction of paperwork for districts.

7. DUPLICATION:

The proposed amendment will not duplicate, overlap or conflict with any other State or federal statute or regulation, and is necessary to conform the Commissioner's Regulations to Chapter 56 of the Laws of 2014.

8. ALTERNATIVES:

The proposed amendment is necessary to conform the Commissioner’s Regulations to Chapter 56 of the Laws of 2014. There are no significant alternatives and none were considered.

9. FEDERAL STANDARDS:

The proposed amendment is necessary to conform the Commissioner’s Regulations to recent changes in State statute and does not exceed any minimum federal standards.

10. COMPLIANCE SCHEDULE:

It is anticipated that regulated parties will be able to achieve compliance with the proposed amendment because the amendment merely conforms the Commissioner’s Regulations to section 16-a of Part A of Chapter 56 of the Laws of 2014, which became effective on March 31, 2014.

Regulatory Flexibility Analysis

Small Businesses:

The proposed amendment is necessary to conform the Commissioner's Regulations to section 16-a of Part A of Chapter 56 of the Laws of 2014, which eliminated the requirement for parental consent prior to the initial provision of special education services and programs to a student with a disability during the months of July and August. The proposed amendment does not impose any adverse economic impact, reporting, recordkeeping or any other compliance requirements on small businesses. Because it is evident from the nature of the proposed amendment that it does not affect small businesses, no affirmative steps are needed to ascertain that fact and none were taken. Accordingly, a regulatory flexibility analysis for small businesses is not required and one has not been prepared.

Local Governments:

1. EFFECT OF RULE:

The proposed amendment applies to all public school districts, boards of cooperative educational services (BOCES), charter schools, State-operated and State-supported schools, special act school districts and approved private schools.

2. COMPLIANCE REQUIREMENTS:

The proposed amendment merely conforms the Commissioner's Regulations to section 16-a of Part A of Chapter 56 of the Laws of 2014, which became effective March 31, 2014. It does not impose any additional compliance requirements beyond those imposed by the statute. Consistent with the statute, the proposed amendment would provide some relief from procedural compliance requirements by eliminating the requirement that schools obtain written consent of the parent prior to the initial provision of special education services to a student with a disability in a 12-month special service and/or program.

3. PROFESSIONAL SERVICES:

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

4. COMPLIANCE COSTS:

The proposed amendment merely conforms the Commissioner's Regulations to Chapter 56 of the Laws of 2014. It does not impose any additional costs on local governments. Consistent with the statute, the proposed amendment may reduce costs to school districts that are associated with obtaining parent consent prior to the initial provision of special education services and programs to a student with a disability during the months of July and August.

5. ECONOMIC AND TECHNOLOGICAL FEASIBILITY:

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

6. MINIMIZING ADVERSE IMPACT:

The proposed amendment merely conforms the Commissioner’s Regulations to Chapter 56 of the Laws of 2014. It does not impose any additional costs or compliance requirements on the State, local governments, private regulated parties or the State Education Department. Consistent with the statute, the proposed amendment may reduce costs and will provide some relief from procedural compliance requirements to school districts by minimizing the instances when consent from parents must be obtained.

Section 200.5(b)(1)(iii), as amended, repeals the requirement for the written consent of the parent prior to the initial provision of special education services in a 12-month special service and/or program.

7. LOCAL GOVERNMENT PARTICIPATION:

Copies of the proposed amendment have been provided to District Superintendents and the chief officers of the Big 5 city school districts with the request that they distribute them to school districts within their supervisory districts for review and comment. Copies have also been provided to charter schools, State operated schools, Special Act school districts, approved private schools and other State agencies that operate education programs.

8. INITIAL REVIEW OF RULE (SAPA § 207):

Pursuant to State Administrative Procedure Act section 207(1)(b), the State Education Department proposes that the initial review of this rule shall occur in the fifth calendar year after the year in which the rule is adopted, instead of in the third calendar year. The justification for a five year review period is that the proposed amendment is necessary to implement statutory requirements in Education Law section 4402(2)(a), as amended by section 16-a of Part A of Chapter 56 of the Laws of 2014, and therefore the substantive provisions of the proposed rule cannot be repealed or modified unless there is a further statutory change. Accordingly, there is no need for a shorter review period. The Department invites public comment on the proposed five year review period for this rule. Comments should be sent to the agency contact listed in item 10 of the Notice of Proposed Rule Making published herewith, and must be received within 45 days of the State Register publication date of the Notice.

Rural Area Flexibility Analysis

1. TYPES AND ESTIMATED NUMBERS OF RURAL AREAS:

The proposed amendment will apply to all public school districts, boards of cooperative educational services (BOCES), charter schools, State-operated and State-supported schools, special act school districts and approved private schools in the State, including those located in the 44 rural counties with less than 200,000 inhabitants and the 71 towns in urban counties with population density of 150 per square miles or less.

2. REPORTING, RECORDKEEPING AND OTHER COMPLIANCE REQUIREMENTS AND PROFESSIONAL SERVICES:

The proposed amendment merely conforms the Commissioner's Regulations to section 16-a of Part A of Chapter 56 of the New York State (NYS) Laws of 2014, which became effective March 31, 2014. It does not impose any additional reporting, record keeping or other compliance requirements, or professional service requirements, on entities in rural areas beyond those imposed by the statute. Consistent with the statute, the proposed amendment would provide some relief from procedural compliance requirements by eliminating the requirement that schools obtain written consent of the parent prior to the initial provision of special education services to a student with a disability in a 12-month special service and/or program.

3. COSTS:

The proposed amendment merely conforms the Commissioner's Regulations to Chapter 56 of the Laws of 2014. It does not impose any additional costs on entities in rural areas. Consistent with the statute, the proposed amendment may reduce costs to school districts that are associated with obtaining parental consent prior to the initial provision of special education services and programs to a student with a disability during the months of July and August.

4. MINIMIZING ADVERSE IMPACT:

The proposed amendment merely conforms the Commissioner’s Regulations to Chapter 56 of the Laws of 2014. It does not impose any additional costs or compliance requirements on entities in rural areas. Consistent with the statute, the proposed amendment may reduce costs and provide some relief from procedural compliance requirements to school districts by minimizing the instances when consent from parents must be obtained.

Section 200.5(b)(1), as amended, repeals the requirement that schools obtain written consent of the parent prior to the initial provision of special education services in a 12-month special service and/or program.

The statute applies to school districts throughout the State, including those in rural areas. Therefore, it was not possible to establish different requirements for entities in rural areas, or to exempt them from the amendment's provisions.

5. RURAL AREA PARTICIPATION:

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

6. INITIAL REVIEW OF RULE (SAPA § 207):

Pursuant to State Administrative Procedure Act section 207(1)(b), the State Education Department proposes that the initial review of this rule shall occur in the fifth calendar year after the year in which the rule is adopted, instead of in the third calendar year. The justification for a five year review period is that the proposed amendment is necessary to implement statutory requirements in Education Law section 4402(2)(a), as amended by section 16-a of Part A of Chapter 56 of the Laws of 2014, and therefore the substantive provisions of the proposed rule cannot be repealed or modified unless there is a further statutory change. Accordingly, there is no need for a shorter review period. The Department invites public comment on the proposed five year review period for this rule. Comments should be sent to the agency contact listed in item 10 of the Notice of Proposed Rule Making published herewith, and must be received within 45 days of the State Register publication date of the Notice.

Job Impact Statement

The proposed amendment is necessary to conform the Commissioner's Regulations to section 16-a of Part A of Chapter 56 of the Laws of 2014, which eliminated the requirement for parental consent prior to the initial provision of special education services and programs to a student with a disability during the months of July and August.

The proposed amendment will not have a substantial impact on jobs and employment opportunities. Because it is evident from the nature of the amendment that it will not affect job and employment opportunities, no affirmative steps were needed to ascertain that fact and none were taken. Accordingly, a job impact statement is not required, and one has not been prepared.