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 final rule:
1. Paragraph (3) of subdivision (d) of section 200.4 of the Regulations of the Commissioner of Education is amended, effective June 29, 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 (or 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 June 29, 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 June 29, 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 June 29, 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 Learning Standards, 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.
Final rule as compared with last published rule:
Nonsubstantive changes were made in sections 200.4(d)(3) and 200.20(b)(7).
Revised rule making(s) were previously published in the State Register on
April 6, 2016.
Text of 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
Revised Regulatory Impact Statement
Since publication of a Notice of Revised Rule Making in the State Register on April 6, 2016, the following non-substantial revisions were made:
200.4(d)(3), relating to assignment of an individual aide to a student with a disabilities, is revised to: insert an “or” before supplementary school personnel to make it clearer that a “one-to-one aide” means assignment of additional supplementary school personnel to meet a student’s individual needs.
200.20(b)(7)(i)(a) is revised to substitute New York State Pre-Kindergarten Foundation for Common Core to the New York State Prekindergarten Learning Standards to conform with current terminology.
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 Learning Standards, 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 the CPSE; 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 Learning Standards, 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 Learning Standards, 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 Learning Standards 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 Revised Rule Making in the State Register on April 6, 2016, non-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 Learning Standards, 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 Revised Rule Making in the State Register on April 6, 2016, 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 Learning Standards, 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 Learning Standards, 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 April 6, 2016, non-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 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.
Initial Review of Rule
As a rule that requires a RFA, RAFA or JIS, this rule will be initially reviewed in the calendar year 2019, which is no later than the 3rd year after the year in which this rule is being adopted.
Assessment of Public Comment
Since publication of a Notice of Revised Rule Making in the State Register on April 6, 2016, the State Education Department (SED) received the following comments on the proposed amendment.
One-to-One Aides
COMMENT:
Commenters supported the revised amendment to add considerations of the extent to which a 1:1 aide might enable a student to be educated with nondisabled students and in the least restrictive environment, behaviors that impede learning and training needed by the 1:1 aides. Recommendations were made that NYSED provide training to special education administrators to understand their responsibilities.
DEPARTMENT RESPONSE:
Comments are supportive and therefore no response is necessary.
COMMENT:
One commenter recommended that the rule be revised to replace the term 1:1 aide with “IEP-recommended assistant or aide” because the term “one-to-one aide” is not consistent with the concept of a shared assistant or aide.
DEPARTMENT RESPONSE:
The proposed regulation clarifies that the term “1:1 aide” means the assignment of supplementary school personnel to meet the individualized needs of a student with a disability. Supplementary school personnel are defined in section 200.1(hh) of the Regulations of the Commissioner of Education and mean a teacher aide or a teaching assistant as described in section 80-5.6(a) through (d). Nothing in the proposed rule would prohibit an individual school district from using another term to describe this service such as “IEP-recommended assistant or aide”. Moreover, a school may determine that the same 1:1 aide can meet the individualized needs of more than one student, provided that such shared services are consistent with each student’s IEP.
COMMENT:
Require that the IEP specify the maximum number of students that can be shared simultaneously with the aide/assistant, so long as the needs of the students can be adequately met, and document ratios in the IEP.
DEPARTMENT RESPONSE:
The school must implement the IEP recommendation to meet a student’s individualized needs. A school may determine that the same 1:1 aide can meet the individualized needs of more than one student, provided that such shared services are consistent with each student’s IEP.
COMMENT:
Regulations contemplate only select instances during the school day when a 1:1 aide would be warranted. Reaffirm that all factors listed must be considered.
DEPARTMENT RESPONSE:
There is nothing in the proposed rule that would contemplate that 1:1 aide services only be available for portions of the school day.
The proposed rule requires that each of the considerations outlined in the rule be made.
COMMENT:
Unclear whether the provisions of the proposal extend to preschool, as section 200.4 applies to school-age students.
DEPARTMENT RESPONSE:
Section 200.4 applies to all students with disabilities, including preschool students with disabilities, except where such requirements are inconsistent with the requirements in section 200.16. Section 200.16(e)(3) states that the IEP recommendation shall be developed in accordance with section 200.4(d)(2), (3) and (4). The proposed rule relating to 1:1 aides is in section 200.4(d)(3), and therefore applies to preschool students with disabilities.
Provision of SEIS
COMMENT:
Authorize providers to bill for indirect SEIS in 30-minute intervals based on a cumulative weekly total, as general education teachers aren’t available for a full 30-minute session during the school day.
DEPARTMENT RESPONSE:
Comment is beyond the scope of proposed regulations and therefore no comment is warranted.
COMMENT:
Committee on Preschool Special Education (CPSE) chairpersons should receive training on indirect SEIS and new requirements regarding the IEP. Recommend NYSED encourage use of indirect SEIS when promoting integration.
DEPARTMENT RESPONSE:
The Department will issue guidance on the proposed regulations when approved by the Board of Regents. Moreover, the availability of indirect SEIS is not new and is part of the new CPSE chairperson training delivered by the State’s special education technical assistance providers.
COMMENT:
The proposed rule should be revised to further define what type of setting is included under each possible location (regular early childhood program, student’s home, other child care location chosen by the parent) in 200.20(b)(4). CPSE chairs have inconsistent interpretations of “other child care location” and the difference between site and setting. Provide sufficient phase in time so that current IEPs would not be required to be amended to meet this requirement.
DEPARTMENT RESPONSE:
The settings listed in the regulations are self-explanatory or, in the case of “child care location”, clearly defined in section 4410 of the Education Law to mean “a child’s home or a place where care for less than twenty-four hours a day is provided on a regular basis and includes, but is not limited to, a variety of child care services such as day care centers, family day care homes and in-home care by persons other than parents.” When adopted, the regulations will become effective for IEPs developed on or after the effective date of the proposed regulation. Retroactive changes to IEPs will not be required.
COMMENT:
Include a statement authorizing CPSE chairs to identify an alternate location, mutually agreed upon by the parent, where SEIS could be provided only when the regular early childhood program is closed.
DEPARTMENT RESPONSE:
There is nothing in the proposed amendment that would prohibit the CPSE from designating on a student’s IEP an alternate location for SEIS to be provided when the regular early childhood program is closed.
COMMENT:
Require that SEIS only be provided during the regular school day.
DEPARTMENT RESPONSE:
The Department declines to make the recommended revision because, if a student’s IEP requires extended day services, a student may need SEIS beyond the regular school day. However, most students with disabilities can and should receive their special education services during the school day.
Special Class and Related Services
COMMENT:
Some related services, such as parent counseling and training, may not be able to occur during the school day. The provision of both home-based and school-based services is appropriate for some children.
DEPARTMENT RESPONSE:
Comments are supportive in nature and no response is necessary.
COMMENT:
The proposed rule does not clarify that all instructional and related services specified in IEP must be provided during the school day by the special class program. Allow for exceptions where documentation demonstrates that extenuating circumstances prevent delivery of services during the school day and document in IEP.
DEPARTMENT RESPONSE:
The proposed rule requires that each preschool student with a disability be provided with the extent and duration of services described in the IEP and that a student’s special class program include both instruction and related services specified in the IEP. Therefore, unless the IEP indicates otherwise, instructional and related services would be provided during the hours of the student’s special class program.
Educational Directors
COMMENT:
Clarify if requirement applies to educational directors who supervise both approved preschool programs and approved private schools, and have no direct responsibility for school building leadership.
DEPARTMENT RESPONSE:
For preschool program educational directors hired on or after September 1, 2016, such individuals must meet the qualifications as prescribed in the proposed amendment. These requirements would only apply to those individuals providing direct on-site oversight of the preschool special education program (i.e., school building leadership).
Make Up Missed Services
COMMENT:
Clarify that 30-day make-up requirement applies to missed related services and provide field guidance. Clarify that missed sessions refers to SEIS and not special class or special class in an integrated setting.
DEPARTMENT RESPONSE:
The proposed amendment applies to all preschool providers approved by the Department. For special class programs, the provisions would apply to related services for students enrolled in such classes. Special class and SCIS programs must have substitute teachers when a student’s special education teacher is absent and there is no requirement that if a student is absent from his/her special class program that the program provides a make-up session for that student. While the proposed rule does not apply to related services provided by individuals on the list maintained by the municipality, it is expected that make up sessions also be provided for related service sessions missed because of provider unavailability as appropriate.
COMMENT:
Time limit of 30 days is too short for students who do not attend program full-time.
DEPARTMENT RESPONSE:
The time limit of 30 days should be sufficient to provide most make-up sessions. If there is a documented child-specific reason why a make-up cannot be provided within 30 days, the provider should discuss with the CPSE how timely make-up sessions can be provided for the student.
COMMENT:
Restore proposed requirement for substitute teachers, as they reduce the need for make-ups.
DEPARTMENT RESPONSE:
Providers are encouraged to use substitute teachers to the maximum extent possible to provide SEIS services, but are not required to do so.
COMMENT:
Clarify that make-ups are only required when provider caused missed service. Require make-up only after provider caused missed service and CPSE determines that it will interfere with student opportunity to meet goals. Have CPSE determine the number of make-ups needed. Require provider to notify CPSE when it is unable to implement IEP due to unavailability of staff.
DEPARTMENT RESPONSE:
Consistent with Department guidance, providers must arrange to provide students with make-up sessions when the missed sessions were due to staff absence and, as appropriate to the individual student’s needs, any excused student absences. Providers may, but are not required to, make up sessions for unexcused student absences. Students must have services delivered as indicated in their IEPs; therefore, it would be not only burdensome, but unnecessary for CPSEs to determine the number of make-ups needed. The Department agrees that the CPSE should be notified immediately if a student’s IEP is unable to be implemented due to unavailability of staff. There is no need to add this requirement to the proposed regulations, as it is an implicit provider responsibility.
Program Standards: Instructional
COMMENT:
Current rate setting methodology does not support additional funds for staff training and the substitutes needed to provide coverage.
DEPARTMENT RESPONSE:
The proposed amendment does not require that staff attend professional development. Additional resources, including web-based guidance will be considered to provide no-cost access to information necessary to implement the proposed amendment.
Program Standards: Active Engagement of Parents
COMMENT:
Clarify if the Early Childhood Direction Centers and Parent Centers (ECDC) will provide assistance with this requirement or if an alternative plan is in place.
DEPARTMENT RESPONSE:
ECDCs and Special Education Parent Centers are available to provide technical assistance to families and providers relating to this proposed requirement.
Program Standards: Behavioral Supports
COMMENT:
Clarify if prohibiting suspension also applies to students in private preschools who receive related services.
DEPARTMENT RESPONSE:
Program standards for positive behavioral supports, including prohibiting suspension, are requirements for approved preschool special class programs. The proposed amendment does not govern policies and practices in regular early childhood programs.
COMMENT:
Preschools may delay referral for assessment in order to avoid readmission. Providers may be reluctant to accept students that have a history of difficult behaviors. Clarify if a program is obligated to readmit a student that is expelled from preschool and subsequently becomes classified as a preschooler with a disability. Clarify if there will be a provision to provide interim services for a student that has been expelled and is waiting for an opening in a different placement.
DEPARTMENT RESPONSE:
If a current program is not appropriate to meet the needs of a student, the CPSE must act in a timely manner to secure an alternate program/placement consistent with the timelines currently in regulation. The proposed amendment would prohibit suspension or expulsion from the student’s special education program or services and therefore, there would be no need for ‘interim’ services; however, if the location for the delivery of such services is a regular early childhood program from which the student was suspended, the CPSE would need to revise the location for the delivery of the student’s special education services.
Program Standards: Progress Monitoring
COMMENT:
“Regular” is open to interpretation. Unclear how inconsistent practices regarding reporting of progress notes will addressed.
DEPARTMENT RESPONSE:
The proposed amendment requires regular progress monitoring of student achievement data, which must be 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.
