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EDU-14-09-00005-A Special Education Programs and Services for Students with Disabilities
7/15/09 N.Y. St. Reg. EDU-14-09-00005-A
NEW YORK STATE REGISTER
VOLUME XXXI, ISSUE 28
July 15, 2009
RULE MAKING ACTIVITIES
EDUCATION DEPARTMENT
NOTICE OF ADOPTION
I.D No. EDU-14-09-00005-A
Filing No. 726
Filing Date. Jun. 29, 2009
Effective Date. Jul. 16, 2009
Special Education Programs and Services for Students with Disabilities
PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Action taken:
Amendment of sections 200.1, 200.2, 200.4, 200.5, 200.6, 200.9 and 200.15 of Title 8 NYCRR.
Statutory authority:
Education Law, sections 101(not subdivided), 207 (not subdivided), 3208(1), (5), 3602(i)(2), 3713(1) and (2), 4002(1), (3), 4308(3) and 4355(3), 4401(2), (9), 4402(1), (7) and 4410(13); and L. 2008, ch. 323
Subject:
Special education programs and services for students with disabilities.
Purpose:
To conform Commissioner's Regulations to changes in the federal IDEA regulations and to ch. 323, L. 2008.
Substance of final rule:
The Commissioner of Education has amended sections 200.1, 200.2, 200.4, 200.5, 200.6, 200.9 and 200.15 of the Commissioner's Regulations, effective July 16, 2009, relating to the provision of special education to students with disabilities. The following is a summary of the substance of the amendments.
Section 200.1, as amended, makes a technical amendment to the definition of travel training; and adds the definition of declassification support services consistent with the definition that was inadvertently deleted from section 100.2(u) of the Commissioner's Regulations.
Section 200.2, as amended, makes a technical amendment relating to board of education written policies.
Section 200.4, as amended, makes a technical amendment and corrects cross citations relating to declassification support services and requests to the committee on special education (CSE) pursuant to section 4005 of the Education Law; and conforms State regulations to federal requirements relating to participation in regular class.
Section 200.5, as amended, makes a technical amendment relating to State complaint procedures; adds certain cross citations; conforms State regulations to federal requirements relating to parent consent, including revocation of parent consent for special education and related services, and meeting notice; and repeals language in the prior notice requirements relating to the provision of a free appropriate public education after graduation with the receipt of a local high school or Regents diploma to be consistent with Education Law.
Section 200.6, as amended, corrects a cross citation relating to staffing requirements.
Section 200.9, as amended, makes a technical amendment relating to financial reporting requirements for approved programs.
Section 200.15, as amended, makes a technical amendment relating to personnel qualifications and conforms State regulations to Chapter 323 of the New York State Laws of 2008 relating to procedures for prevention of abuse, maltreatment or neglect of students in residential placements.
Final rule as compared with last published rule:
Nonsubstantive changes were made in section 200.4(d)(2).
Text of rule and any required statements and analyses may be obtained from:
Chris Moore, State Education Department, Office of Counsel, State Education Building Room 148, 89 Washington Avenue, Albany, NY 12234, (518) 486-1713, email: legal@mail.nysed.gov
Revised Regulatory Impact Statement
Since publication of the Notice of Proposed Rule Making in the State Register on April 8, 2009, the following nonsubstantial revisions were made to the proposed rule:
In subparagraph (viii) of paragraph (2) of subdivision (d) of section 200.4 of the Commissioner's Regulations, underlining, which was inadvertently omitted, was added under the term "students" to denote this as new language, as follows:
"(viii) Participation in regular class. The IEP shall provide:
(a) an explanation of the extent, if any, to which the student will not participate with nondisabled students in the regular class and in the activities described in subparagraph (v) of this paragraph; or. . ."
The clauses in subparagraph (vi) of paragraph (2) of subdivision (l) of section 200.5, incorrectly numbered as (1) and (2), have been lettered as clauses (a) and (b), thus providing for the correct designation of clauses pursuant to the Department of State's rulemaking practice and procedures (19 NYCRR § 261.4).
The above revisions to the proposed rule do not require any revisions to the previously published Regulatory Impact Statement.
Revised Regulatory Flexibility Analysis
Since publication of the Notice of Proposed Rule Making in the State Register on April 8, 2009, nonsubstantial revisions were made to the proposed rule as described in the Statement Concerning the Regulatory Impact Statement.
The above revisions to the proposed rule do not require any revisions to the previously published Regulatory Flexibility Analysis.
Revised Rural Area Flexibility Analysis
Since publication of the Notice of Proposed Rule Making in the State Register on April 8, 2009, nonsubstantial revisions were made to the proposed rule as described in the Statement Concerning the Regulatory Impact Statement.
The above revisions to the proposed rule do not require any revisions to the previously published Rural Area Flexibility Analysis.
Revised Job Impact Statement
Since publication of the Notice of Proposed Rule Making in the State Register on April 8, 2009, nonsubstantial revisions were made to the proposed rule as described in the Statement Concerning the Regulatory Impact Statement.
The proposed rule, as revised, is necessary in order to ensure compliance with federal regulations and State law relating to the education of students with disabilities, ages 3-21; and to make certain technical amendments, including correction of cross citations. The proposed revised 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.
Assessment of Public Comment
Since publication of a Notice of Proposed Rule Making in the State Register on April 8, 2009 the State Education Department received the following comments on the proposed amendments.
Section 200.1(ooo) - Declassification Support Services
1. COMMENT:
Adding the definition of declassification support services will help schools and students to know what these mean and how to access them.
DEPARTMENT RESPONSE:
Comment is supportive in nature and no response is necessary.
2. COMMENT:
Clarify what is meant by "other appropriate support services" in the definition of declassification support services and if this means resource room or consultant teacher services. Provide guidance or add language to the regulations to clarify what declassification support services are.
DEPARTMENT RESPONSE:
The term "other appropriate support services" is the same term as previously found in [the] section 100.1(q) of the Regulations of the Commissioner of Education definition of declassification support services. Such term includes general education support services provided by the district to aid a student in moving from special education to full-time general education, such as remedial instruction, positive behavioral supports, supplementary supports and services, accommodations, program or instructional modifications and student support team services. Consultant teacher services are special education services and would therefore not be an appropriate declassification support service. However, if the district provides nondisabled students with resource room programs, it may offer this as a declassification support service.
Section 200.5(b) - Consent
3. COMMENT:
Regulations should be revised to state that the district cannot use a due process procedure to override a parent's refusal to consent to a reevaluation of the student and that disputes between parents and districts around reevaluations should be resolved through other processes than due process hearings.
DEPARTMENT RESPONSE:
It would be inconsistent with federal law and regulation to make the revision proposed by the commenter. The proposed amendment to section 200.5(b)(3) of the Regulations of the Commissioner of Education is necessary to clarify, consistent with section 300.300(c)(1) of the Code of Federal Regulations, that if a parent refuses to consent to a reevaluation, the public agency may, but is not required to, pursue the reevaluation by using the procedural safeguards in section 200.5(h) through (k) of the Regulations (i.e., mediation or impartial due process hearing). The proposed amendment also repeals language which provides that a district may, but is not required to, continue to pursue a reevaluation by using due process procedures if a parent has failed to respond to a request for consent for a reevaluation, as section 200.5(b)(1)(i)(b) of the Regulations of the Commissioner of Education, consistent with federal requirements, provides that parental consent need not be obtained for a reevaluation if the district can demonstrate that it has made reasonable efforts to obtain consent and the student's parent failed to respond.
4. COMMENT:
The regulations should clarify how long the district would not be in violation of providing a free appropriate public education (FAPE) to a student when a parent revokes consent (e.g., until the end of the term of the individualized education program (IEP)).
DEPARTMENT RESPONSE:
When a parent revokes consent for special education services, it releases the school district from liability for providing FAPE from the time the parent revokes consent for special education and related services until the time, if any, that the child is evaluated and deemed eligible, once again, for special education and related services.
5. COMMENT:
Regulations should clarify if a district is required to annually request consent to evaluate a student whose parent has revoked consent in order to meet its obligation of child find.
DEPARTMENT RESPONSE:
Children who have previously received special education and related services and whose parents subsequently revoke consent should not be treated any differently in the child find process than any other child. Students whose parents revoke consent should be identified, located and offered an evaluation in the same manner as any other child if the child is suspected of having a disability and being in need of special education and related services. A district must obtain informed written parental consent before conducting an initial evaluation. A parent who previously revoked consent for the continued provision of special education and related services, like any parent of a child suspected of having a disability, may refuse to provide consent for an initial evaluation.
6. COMMENT:
The proposed regulation may result in school districts discontinuing special education services until cases go to impartial hearing when there is a dispute over particular services such as a change in a special education service or class size ratio.
DEPARTMENT RESPONSE:
If a parent and the Committee on Special Education (CSE) disagree about whether a child would be provided FAPE if the child did not receive a particular special education or related service, the parent may request a due process hearing to obtain a ruling that the service with which the parent disagrees is or is not appropriate for their child. Once a due process complaint is sent to the district, during the resolution process time period, and while waiting for the decision of any impartial due process hearing, the student must remain in his or her current educational placement. Unless the parent submits a written notice to the school district that he/she is revoking consent for the provision of all special education services to the child, the district may not cease providing special education services to the child.
Section 200.15 - Procedures for prevention of abuse, maltreatment or neglect of students in residential placements
7. COMMENT:
The proposed procedures for prevention of abuse, maltreatment or neglect of students in residential placements should be extended to non-residential public schools to ensure these children have the same protections and are afforded the same notification, training and right to legal protections as residential students.
DEPARTMENT RESPONSE:
The proposed amendment conforms section 200.15 of the Regulations of the Commissioner of Education relating to procedures for prevention of abuse, maltreatment or neglect of students in residential placements to Chapter 323 of the NYS Laws of 2008, which amended NYS Social Services Law and Mental Hygiene Law relating to the requirements for the protection of children in residential facilities from abuse and neglect. [Article 23-B of Education Law and section 100.2(hh) of the Regulations of the Commissioner of Education establishes] Procedures for reporting allegations of child abuse in a public school educational setting are set forth in Article 23-B of Education Law and section 100.2(hh) of the Regulations of the Commissioner of Education.
Other
8. COMMENT:
CSEs will be unable to meet the regulation that requires a school district to invite in advance a representative of an appropriate day placement or a residential placement as the determination for placement is made at the CSE meeting after a review of all evaluations.
DEPARTMENT RESPONSE:
The comment is beyond the scope of the proposed regulations. If the CSE recommends placement in a school operated by an agency or school other than the school district in which the student would normally attend if the student did not have a disability or if the education of a student residing in a facility operated or supervised by a State agency is the responsibility of the school district, the school district must ensure that a representative of that agency or school attends the CSE meeting. In the instance when a private school placement is recommended but the specific school has not yet been identified, the CSE may need to conduct another CSE meeting once the specific private school is identified if determined necessary by the parent, CSE or agency in order to develop the IEP to be implemented in that agency.
