Specific reasons underlying the finding of necessity:
The purpose of the proposed amendment is to conform the Regulations of the Commissioner of Education to the final federal regulations to implement the Individuals with Disabilities Education Act (IDEA) 2004 as amended by Public Law 108-446. The final Federal regulations were issued August 2006 and became effective October 13, 2006. The State must amend its laws and regulations to conform to Federal regulations by June 30, 2007 as a condition of receipt of Federal funds. The State and school districts must implement the new requirements in IDEA and the final regulations to implement the IDEA.
A Notice of Proposed Rule Making was published in the State Register on March 21, 2007. Since its publication, the proposed amendment has been substantially revised in response to public comment. A Notice of Revised Rule Making was published in the State Register on July 3, 2007. In addition, at the June 25–26, 2007 meeting of the Board of Regents, the Regents made a further substantial revision to the proposed rule, as set forth in the Revised Regulatory Impact Statement submitted herewith, to delete the settlement agreement provision in 200.5(j)(4)(iii). Pursuant to the State Administrative Procedure Act section 202(4-a) cannot be adopted by regular (non-emergency) action until at least 30 days after publication of the revised rule in the State Register. Accordingly, since the Board of Regents meets at fixed intervals and there is no meeting scheduled for August 2007, the earliest the proposed amendment can be adopted by regular action is the September Regents meeting. However, failure to conform the Commissioner's regulations to Federal and State requirements could expose both the State and school districts to liability and affect their eligibility for Federal funding under IDEA, and could deny students with disabilities, parents and school districts the benefits they are intended to receive under IDEA.
Emergency action to adopt the proposed rule is necessary for the preservation of the general welfare in order to immediately conform the Commissioner's Regulations regarding the provision of special education services to the requirements of the Federal Individuals with Disabilities Education Act (IDEA), as amended by Public Law 108-446, and Part 300 of Title 34 of the Code of Federal Regulations, so that such requirements become effective by the federally required date of July 1, 2007 and to ensure they are in effect by the beginning of the 2007–08 school year, and thereby ensure the rights of students with disabilities and their parents consistent with Federal and State statutes and ensure compliance with requirements for receipt of Federal funds.
Subject:
Special education programs and services.
Purpose:
To conform the commissioner's regulations to the Individuals with Disabilities Education Act (IDEA) (20 USC 1400 et seq.), as amended by Public Law 108-446, and the final amendments to 34 CFR Part 300; ensure consistency in procedural safeguards; promote timely evaluations and services; and facilitate services in the least restrictive environment for students with disabilities.
Substance of emergency/revised rule:
The Board of Regents has amended sections 100.2(ii), 120.6(a), 200.1, 200.2, 200.3, 200.4, 200.5, 200.6, 200.7, 200.8, 200.9, 200.13, 200.14, 200.16, 200.22, 201.2, 201.3, 201.4, 201.5, 201.6, 201.7, 201.8, 201.9, 201.10, and 201.11 of the Commissioner's Regulations, as an emergency action effective July 1, 2007, relating to the provision of special education to students with disabilities. Since publication of a Notice of Revised Rule Making in the State Register on July 3, 2007, the proposed rule has been substantially revised as set forth in the Revised Regulatory Impact Statement submitted herewith. The following is a summary of the substance of the emergency and revised proposed rule.
Section 100.2(ii), as added, establishes minimal requirements for using a response to intervention process to determine if a student responds to scientific research-based intervention.
Section 120.6(a), as amended, incorporates by reference the federal definition of highly qualified special education teachers.
Section 200.1, as amended, revises definitions of parent, related services, school health school services and supplementary aids and services; adds the definition of interpreting services consistent with the federal definition; makes technical amendments to definitions of consultant teacher services and transition services; and corrects cross citations relating to definitions of full-day preschool program, guardian ad litem, preschool program, student with a disability and twelve-month special service and/or program.
Section 200.2, as amended, makes technical changes and corrects cross citations and incorporations by reference relating to board of education written policies and procedures, responsibilities of boards of cooperative education services, and maintenance of impartial hearing officer (IHO) lists; requires consent for release of information about nonpublic school students with disabilities; adds examples of nonacademic and extracurricular programs; requires districts to take action to ensure timely evaluation and placement of preschool students; adds that districts may use a response to intervention process to remediate a student's performance prior to referral for special education; and requires districts to publicly report on revisions to inappropriate policies, procedures or practices that resulted in a significant disproportionality by race/ethnicity in the suspension, identification, classification and/or placement of students with disabilities.
Section 200.3, as amended, corrects a cross citation relating to subcommittee membership; and conforms State regulations relating to the role of a regular education teacher on the committee on special education (CSE) to federal regulations.
Section 200.4, as amended, makes technical amendments and corrects cross citations relating to evaluation procedures, recommended special education programs and services and written notice upon graduation or aging out; conforms State regulations to federal requirements relating to: referrals, parental consent, individual evaluations and reevaluations, evaluation procedures, eligibility determinations, CSE recommendations, individualized education program (IEP) contents, and students who transfer districts; requires all IEPs developed on or after January 1, 2009 be on a form prescribed by the Commissioner of Education; and adds additional procedures for identifying students with learning disabilities.
Section 200.5, as amended, corrects cross citations relating to other required notifications, consent for release of information, and impartial hearing timelines; corrects incorporations by reference relating to parent participation in CSE meetings and confidentiality of personally identifiable data; makes a technical change relating to surrogate parent; conforms State due process requirements to federal requirements relating to prior written notice, consent, notice of meetings, procedural safeguards notice, independent educational evaluations, mediation, due process complaint notification requirements, impartial hearings, resolution process, State complaint procedures, pendency, and surrogate parents; adds, effective January 1, 2009, that prior written notice (notice of recommendation) and meeting notices be on forms prescribed by the Commissioner of Education; add steps the district must take to ensure parents participate in the resolution meeting; and adds that not more than one 30-day extension at a time may be granted to an impartial hearing.
Section 200.6, as amended, makes certain technical changes relating to the continuum of services; corrects a cross citation and timeline for providing services to students with disabilities in approved private schools; adds that the CSE may recommend that a student who needs both resource room services and consultant teacher services may receive a combination of such services for not less than three hours each week; and adds “integrated co-teaching services” option to the continuum of services and specifies that when a district provides integrated co-teaching services, the number of students with disabilities cannot, effective July 1, 2008, exceed 12 students.
Section 200.7(b), as amended, conforms State regulations relating to school conduct and discipline at private schools and State-operated and State-supported schools to federal regulations.
Section 200.8(c), as amended, corrects a cross citation relating to the submission of claims for preschool students with disabilities.
Section 200.9(f), as amended, corrects a cross citation relating to tuition reimbursement methodology.
Section 200.13, as amended, corrects cross citations relating to educational programs for students with autism.
Section 200.14(f), as amended, corrects a cross citation relating to students with disabilities enrolled in day treatment programs.
Section 200.16, as amended, makes technical changes regarding IEEs; corrects cross citations relating to referral and the continuum of services for preschool students; conforms State regulations relating to procedural safeguards to federal requirements; and allows approved preschool programs to temporarily increase the enrollment of a class up to a maximum of 13 students for the remainder of the school year.
Section 201.2, as amended, removes an incorporation by reference and adds a cross citation relating to the definition of a student presumed to have a disability for discipline purposes; conforms the definitions of disciplinary change in placement, illegal drug, and interim alternative educational setting (IAES) to the federal definitions; adds that the district has authority to determine on a case-by-case basis if a pattern of removals constitutes a disciplinary change in placement and that such determination is subject to review through due process and judicial proceedings.
Section 201.3, is repealed and a new section 201.3 is added to conform CSE responsibilities for functional behavioral assessments and behavioral intervention plans to federal requirements.
Section 201.4, as amended, requires a school district to remedy IEP deficiencies when it is determined that the student's conduct is the direct result of the district's failure to implement the IEP.
Section 201.5, as amended, removes the requirement that an expression of concern about a student's pattern of behavior be made in accordance with the district's child find and special education referral system.
Section 201.6, as amended, requires that expedited evaluations be completed no later than 15 school days after receipt of parent consent.
Section 201.7(e), as amended, corrects a cross citation. Section 201.7(f), as amended, clarifies school personnel authority to consider unique circumstances when determining whether a change in placement is appropriate.
Section 201.8, as amended, repeals the considerations that an IHO must make to order a change of placement to an IAES; and repeals that an IAES ordered by an IHO be determined by the CSE.
Section 201.9(c), as amended, corrects a cross citation relating to the procedures for suspensions of more than five school days.
Section 201.10, as amended, repeals an incorporation by reference and establishes that school personnel determine services for students removed for more than 10 school days when it is not a disciplinary change in placement; and requires the CSE to determine services and the IAES for students suspended for periods in excess of 10 school days which constitute a disciplinary change in placement.
Section 201.11, as amended, conforms procedures for expedited hearings and timelines for an expedited hearing consistent with federal regulations; clarifies that an IHO appointment for an expedited hearing must be made in accordance with the rotational selection process; and establishes pendency during an expedited impartial hearing.
A cross citation has also been corrected in section 200.22(b)(3).
This notice is intended
to serve as both a notice of emergency adoption and a notice of revised rule making. The notice of proposed rule making was published in the State Register on March 21, 2007, I.D. No. EDU-12-07-00004-P. The emergency rule will expire September 26, 2007.
Revised rule making(s) were previously published in the State Register on
July 3, 2007, I.D. No. EDU-12-07-00004-RP.
Emergency rule compared with proposed rule:
Substantial revisions were made in section 200.5(j)(4)(iii).
Text of 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, (518) 473-8296, e-mail: legal@mail.nysed.gov
Data, views or arguments may be submitted to:
Rebecca H. Cort, Deputy Commissioner, VESID, Education Department, Rm. 1606, One Commerce Plaza, Albany, NY 12234, (518) 473-2714, e-mail: rcort@mail.nysed.gov
Public comment will be received until:
30 days after publication of this notice.
Revised Regulatory Impact Statement
Since publication of a Notice of Revised Rule Making in the State Register on July 3, 2007, the following substantial revision was made to the proposed rule.
Proposed section 200.5(j)(4)(iii), which provided that when parties reach a settlement, the terms of the agreement may be read into the record as an agreement between the parties only the agreement would be enforceable in State or federal court, has been deleted. This revision was made to provide further opportunity for discussion and review of the proposed amendment relating to the decision of an impartial hearing officer and settlement agreements reached by the parties.
The above revision to the proposed rule requires the Local Government Mandates section of the previously published Regulatory Impact Statement be revised to read as follows:
LOCAL GOVERNMENT MANDATES:
In general, the amendments are necessary to conform the Commissioner's Regulations to recent changes in the IDEA statutes and regulations and do not impose any additional program, service, duty or responsibility upon local governments beyond those imposed by federal and State statutes and regulations.
Section 100.2(ii) establishes minimal requirements for using a response to intervention process to determine if a student responds to scientific research-based intervention.
Section 120.6(a) incorporates by reference the federal definition of highly qualified special education teachers.
Section 200.2 requires consent for release of information about nonpublic school students with disabilities; adds examples of nonacademic and extracurricular programs; requires districts to take action to ensure timely evaluation and placement of preschool students; adds that districts may use a response to intervention process to remediate a student's performance prior to referral for special education; and requires districts to publicly report on revisions to inappropriate policies, procedures or practices that resulted in a significant disproportionality by race/ethnicity in the suspension, identification, classification and/or placement of students with disabilities.
Section 200.3 conforms State regulations relating to the role of a regular education teacher on the CSE to federal regulations.
Section 200.4 makes technical amendments relating to evaluation procedures, recommended special education programs and services and written notice upon graduation or aging out; conforms State regulations to federal requirements relating to: referral, parental consent, individual evaluations and reevaluations, evaluation procedures, eligibility determinations, CSE recommendations, individualized education program (IEP) contents, and students who transfer districts; requires all IEPs developed on or after January 1, 2009 be on a form prescribed by the Commissioner; and adds additional procedures for identifying students with learning disabilities.
Section 200.5 makes a technical change relating to surrogate parent; conforms State due process requirements to federal requirements relating to prior written notice, consent, notice of meetings, procedural safeguards notice, independent educational evaluations (IEEs), mediation, due process complaint notification requirements, impartial hearings, resolution process, State complaint procedures, pendency, and surrogate parents; adds, effective January 1, 2009, that prior written notice (notice of recommendation) and meeting notices be on forms prescribed by the Commissioner; adds steps the district must take to ensure parents participate in the resolution meeting; and adds that not more than one 30-day extension at a time may be granted to an impartial hearing.
Section 200.6 makes technical changes regarding continuum of services; corrects a cross citation and timeline for providing services to students with disabilities in approved private schools; provides that the CSE may recommend that a student who needs both resource room services and consultant teacher services may receive a combination of such services for not less than three hours each week; and adds “integrated co-teaching services” option to the continuum of services and specifies that when a district provides integrated co-teaching services, the number of students with disabilities cannot, effective July 1, 2008, exceed 12 students.
Section 200.7(b) conforms State regulations relating to school conduct and discipline at private schools and State-operated and State-supported schools to federal regulations.
Section 200.16 makes technical changes regarding IEEs; conforms State regulations relating to procedural safeguards to federal requirements; and allows approved preschool programs to temporarily increase the enrollment of a class up to a maximum of 13 students for the remainder of the school year.
Section 201.2 conforms the definitions of disciplinary change in placement, illegal drug, and interim alternative educational setting (IAES) to the federal definitions; adds that district has authority to determine on a case by case basis if a pattern of removals constitutes a disciplinary change in placement and that such determination is subject to review through due process and judicial proceedings.
Section 201.3 is repealed and a new section 201.3 is added to conform CSE responsibilities for functional behavioral assessments (FBAs) and behavioral intervention plans (BIPs) to federal requirements.
Section 201.4 requires a school district to remedy IEP deficiencies when it is determined that the student's conduct is the direct result of the district's failure to implement the IEP.
Section 201.5 removes the requirement that an expression of concern about a student's pattern of behavior be made in accordance with the district's child find and special education referral system.
Section 201.6 requires that expedited evaluations be completed no later than 15 school days after receipt of parent consent.
Section 201.7(f) clarifies school personnel authority to consider unique circumstances when determining whether a change in placement is appropriate.
Section 201.8 repeals the considerations that an impartial hearing officer (IHO) must make to order a change of placement to an IAES; and repeals that an IAES ordered by an IHO be determined by the CSE.
Section 201.10 establishes that school personnel determine services for students removed for more than 10 school days when it is not a disciplinary change in placement; and requires the CSE to determine services and the IAES for students suspended for periods in excess of 10 school days which constitute a disciplinary change in placement.
Section 201.11 conforms procedures for expedited hearings and timelines for an expedited hearing consistent with federal regulations; clarifies that an IHO appointment for an expedited hearing must be made in accordance with the rotational selection process; and establishes pendency during an expedited impartial hearing.
Revised Regulatory Flexibility Analysis
Since publication of a Notice of Revised Rule Making in the State Register on July 3, 2007, the proposed rule has been substantially revised as set forth in the Revised Regulatory Impact Statement submitted herewith.
The revision to the proposed rule requires the Compliance Requirements section of the previously published Regulatory Flexibility Analysis be revised to read as follows:
COMPLIANCE REQUIREMENTS:
In general, the amendments are necessary to conform the Commissioner's Regulations to recent changes in the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. 1400 et. seq.), as amended by Public Law 108-446, and recent amendments to 34 CFR Part 300 which became effective on October 13, 2006, and do not impose any additional compliance requirements upon local governments beyond those imposed by federal statutes and regulations.
The amendments relating to evaluation and placement of preschool students; standardized forms for IEPs, written notifications and meeting notices; minimal levels of services for resource room and consultant teacher services; integrated co-teaching services; and temporary increases in the class enrollment of approved preschool programs are not required by federal law or regulations, but are necessary to ensure consistency in procedural safeguards; to promote timely evaluations and services; and to facilitate services in the least restrictive environment for students with disabilities, and are otherwise consistent with federal standards.
Section 100.2(ii) establishes minimal requirements for using a response to intervention process to determine if a student responds to scientific research-based intervention.
Section 120.6(a) incorporates by reference the federal definition of highly qualified special education teachers.
Section 200.2 requires consent for release of information about nonpublic school students with disabilities; adds examples of nonacademic and extracurricular programs; requires districts to take action to ensure timely evaluation and placement of preschool students; adds that districts may use a response to intervention process to remediate a student's performance prior to referral for special education; and requires districts to publicly report on revisions to inappropriate policies, procedures or practices that resulted in a significant disproportionality by race/ethnicity in the suspension, identification, classification and/or placement of students with disabilities.
Section 200.3 conforms State regulations relating to the role of a regular education teacher on the committee on special education (CSE) to federal regulations.
Section 200.4 makes technical amendments relating to evaluation procedures, recommended special education programs and services and written notice upon graduation or aging out; conforms State regulations to federal requirements relating to: referrals, parental consent, individual evaluations and reevaluations, evaluation procedures, eligibility determinations, CSE recommendations, IEP contents, and students who transfer districts; requires documentation of attempts, including telephone calls and correspondence, to obtain parent consent; requires all IEPs developed on or after January 1, 2009 be on a form prescribed by the Commissioner; and adds additional procedures for identifying students with learning disabilities.
Section 200.5 makes a technical change relating to surrogate parent; conforms State due process requirements to federal requirements relating to prior written notice, consent, notice of meetings, procedural safeguards notice, independent educational evaluations (IEEs), mediation, due process complaint notification requirements, impartial hearings, resolution process, State complaint procedures, pendency, and surrogate parents; adds, effective January 1, 2009, that prior written notice (notice of recommendation) and meeting notices be on forms prescribed by the Commissioner; adds steps the district must take to ensure parents participate in the resolution meeting; and adds that not more than one 30-day extension at a time may be granted to an impartial hearing.
Section 200.6 makes technical changes regarding continuum of services; corrects a cross citation and timeline for providing services to students with disabilities in approved private schools; provides that the CSE may recommend that a student who needs both resource room services and consultant teacher services may receive a combination of such services for not less than three hours each week; and adds “integrated co-teaching services” option to the continuum of services and specifies that when a district provides integrated co-teaching services, the number of students with disabilities cannot, effective July 1, 2008, exceed 12 students.
Section 200.7(b) conforms State regulations relating to school conduct and discipline at private schools and State-operated and State-supported schools to federal regulations.
Section 200.16 makes a technical change regarding IEEs; conforms State regulations relating to procedural safeguards to federal requirements; and allows approved preschool programs to temporarily increase the enrollment of a class up to a maximum of 13 students for the remainder of the school year.
Section 201.2 conforms the definitions of disciplinary change in placement, illegal drug, and interim alternative educational setting (IAES) to the federal definitions; adds that the district has authority to determine on a case by case basis if a pattern of removals constitutes a disciplinary change in placement and that such determination is subject to review through due process and judicial proceedings.
Section 201.3 is repealed and a new section 201.3 is added to conform CSE responsibilities for functional behavioral assessments (FBAs) and behavioral intervention plans (BIPs) to federal requirements.
Section 201.4 requires a school district to remedy IEP deficiencies when it is determined that the student's conduct is the direct result of the district's failure to implement the IEP.
Section 201.5 removes the requirement that an expression of concern about a student's pattern of behavior be made in accordance with the district's child find and special education referral system.
Section 201.6 requires that expedited evaluations be completed no later than 15 school days after receipt of parent consent.
Section 201.7(f) clarifies school personnel authority to consider unique circumstances when determining whether a change in placement is appropriate.
Section 201.8 repeals the considerations that an IHO must make to order a change of placement to an IAES; and repeals that an IAES ordered by an IHO be determined by the CSE.
Section 201.10 establishes that school personnel determine services for students removed for more than 10 school days when it is not a disciplinary change in placement; and requires the CSE to determine services and the IAES for students suspended for periods in excess of 10 school days which constitute a disciplinary change in placement.
Section 201.11 conforms procedures for expedited hearings and timelines for an expedited hearing consistent with federal regulations; clarifies that an IHO appointment for an expedited hearing must be made in accordance with the rotational selection process; and establishes pendency during an expedited impartial hearing.
Consistent with federal requirements, districts must publicly report on revisions to inappropriate policies, procedures or practices resulting in a significant disproportionality by race/ethnicity.
If a district uses a process to determine if a student responds to scientific, research-based intervention, written notification must be given to parents when the student requires an intervention beyond that provided to all students in the general education classroom that identifies student performance data, strategies for increasing the student's rate of learning and notification of the parents' right to request an evaluation for special education programs and/or services. In addition, the CSE must develop a written document for the determination of a student with a learning disability.
Consistent with federal requirements, districts must obtain consent before: personally identifiable information about a nonpublic school student is released between the district of location of the private school and the district of residence; releasing information to a representative of any participating agency that is likely to be responsible for providing or paying for transition services or inviting such individual to a CSE meeting; and accessing a parent's public insurance. Changes also require consent before personally identifiable information is released to officials of participating agencies when a student is determined to be at risk of a future placement in a residential school and before providing evaluative information and program recommendations for a student to a Family Court judge, a probation department, a social services district, the Office of Child and Family Services, or a preadmission certification committee established pursuant to Mental Hygiene Law section 9.51(d).
Changes to due process provisions require that districts provide parents with a copy of the procedural safeguards notice upon receipt of their first State complaint and upon a disciplinary change in placement.
Revised Rural Area Flexibility Analysis
Since publication of a Notice of Revised Rule Making in the State Register on July 3, 2007, the proposed rule has been substantially revised as set forth in the Revised Regulatory Impact Statement submitted herewith.
The revision to the proposed rule requires the Reporting, Recordkeeping and Other Compliance Requirements and Professional services section of the previously published Rural Area Flexibility Analysis be revised to read as follows:
REPORTING, RECORDKEEPING AND OTHER COMPLIANCE REQUIREMENTS; AND PROFESSIONAL SERVICES:
In general, the amendments are necessary to conform the Commissioner's Regulations to recent changes in the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. 1400 et. seq.), as amended by Public Law 108-446, and recent amendments to 34 CFR Part 300 which became effective on October 13, 2006, and do not impose any additional compliance requirements upon local governments beyond those imposed by federal statutes and regulations.
The amendments relating to evaluation and placement of preschool students; standardized forms for IEPs, written notifications and meeting notices; minimal levels of services for resource room and consultant teacher services; integrated co-teaching services; and temporary increases in the class enrollment of approved preschool programs are not required by federal law or regulations, but are necessary to ensure consistency in procedural safeguards; to promote timely evaluations and services; and to facilitate services in the least restrictive environment for students with disabilities, and are otherwise consistent with federal standards.
Section 100.2(ii) establishes minimal requirements for using a response to intervention process to determine if a student responds to scientific research-based intervention.
Section 120.6(a) incorporates by reference the federal definition of highly qualified special education teachers.
Section 200.2 requires consent for release of information about nonpublic school students with disabilities; adds examples of nonacademic and extracurricular programs; requires districts to take action to ensure timely evaluation and placement of preschool students; adds that districts may use a response to intervention process to remediate a student's performance prior to referral for special education; and requires districts to publicly report on revisions to inappropriate policies, procedures or practices that resulted in a significant disproportionality by race/ethnicity in the suspension, identification, classification and/or placement of students with disabilities.
Section 200.3 conforms State regulations relating to the role of a regular education teacher on the committee on special education (CSE) to federal regulations.
Section 200.4 makes technical amendments relating to evaluation procedures, recommended special education programs and services and written notice upon graduation or aging out; conforms State regulations to federal requirements relating to: referrals, parental consent, individual evaluations and reevaluations, evaluation procedures, eligibility determinations, CSE recommendations, IEP contents, and students who transfer districts; requires documentation of attempts, including telephone calls and correspondence, to obtain parent consent; requires all IEPs developed on or after January 1, 2009 be on a form prescribed by the Commissioner; and adds additional procedures for identifying students with learning disabilities.
Section 200.5 makes a technical change relating to surrogate parent; conforms State due process requirements to federal requirements relating to prior written notice, consent, notice of meetings, procedural safeguards notice, independent educational evaluations (IEEs), mediation, due process complaint notification requirements, impartial hearings, resolution process, State complaint procedures, pendency, and surrogate parents; adds, effective January 1, 2009, that prior written notice (notice of recommendation) and meeting notices be on forms prescribed by the Commissioner; adds steps the district must take to ensure parents participate in the resolution meeting; and adds that not more than one 30-day extension at a time may be granted to an impartial hearing.
Section 200.6 makes technical changes regarding continuum of services; corrects a cross citation and timeline for providing services to students with disabilities in approved private schools; provides that the CSE may recommend that a student who needs both resource room services and consultant teacher services may receive a combination of such services for not less than three hours each week; and adds “integrated co-teaching services” option to the continuum of services and specifies that when a district provides integrated co-teaching services, the number of students with disabilities cannot, effective July 1, 2008, exceed 12 students.
Section 200.7(b) conforms State regulations relating to school conduct and discipline at private schools and State-operated and State-supported schools to federal regulations.
Section 200.16 makes a technical change regarding IEEs; conforms State regulations relating to procedural safeguards to federal requirements; and allows approved preschool programs to temporarily increase the enrollment of a class up to a maximum of 13 students for the remainder of the school year.
Section 201.2 conforms the definitions of disciplinary change in placement, illegal drug, and interim alternative educational setting (IAES) to the federal definitions; adds that the district has authority to determine on a case by case basis if a pattern of removals constitutes a disciplinary change in placement and that such determination is subject to review through due process and judicial proceedings.
Section 201.3 is repealed and a new section 201.3 is added to conform CSE responsibilities for functional behavioral assessments (FBAs) and behavioral intervention plans (BIPs) to federal requirements.
Section 201.4 requires a school district to remedy IEP deficiencies when it is determined that the student's conduct is the direct result of the district's failure to implement the IEP.
Section 201.5 removes the requirement that an expression of concern about a student's pattern of behavior be made in accordance with the district's child find and special education referral system.
Section 201.6 requires that expedited evaluations be completed no later than 15 school days after receipt of parent consent.
Section 201.7(f) clarifies school personnel authority to consider unique circumstances when determining whether a change in placement is appropriate.
Section 201.8 repeals the considerations that an IHO must make to order a change of placement to an IAES; and repeals that an IAES ordered by an IHO be determined by the CSE.
Section 201.10 establishes that school personnel determine services for students removed for more than 10 school days when it is not a disciplinary change in placement; and requires the CSE to determine services and the IAES for students suspended for periods in excess of 10 school days which constitute a disciplinary change in placement.
Section 201.11 conforms procedures for expedited hearings and timelines for an expedited hearing consistent with federal regulations; clarifies that an IHO appointment for an expedited hearing must be made in accordance with the rotational selection process; and establishes pendency during an expedited impartial hearing.
Consistent with federal requirements, districts must publicly report on revisions to inappropriate policies, procedures or practices resulting in a significant disproportionality by race/ethnicity.
If a district uses a process to determine if a student responds to scientific, research-based intervention, written notification must be given to parents when the student requires an intervention beyond that provided to all students in the general education classroom that identifies student performance data, strategies for increasing the student's rate of learning and notification of the parents' right to request an evaluation for special education programs and/or services. In addition, the CSE must develop a written document for the determination of a student with a learning disability.
Consistent with federal requirements, districts must obtain consent before: personally identifiable information about a nonpublic school student is released between the district of location of the private school and the district of residence; releasing information to a representative of any participating agency that is likely to be responsible for providing or paying for transition services or inviting such individual to a CSE meeting; and accessing a parent's public insurance. Changes also require consent before personally identifiable information is released to officials of participating agencies when a student is determined to be at risk of a future placement in a residential school and before providing evaluative information and program recommendations for a student to a Family Court judge, a probation department, a social services district, the Office of Child and Family Services, or a preadmission certification committee established pursuant to Mental Hygiene Law section 9.51(d).
Changes to due process provisions require that districts provide parents with a copy of the procedural safeguards notice upon receipt of their first State complaint and upon a disciplinary change in placement.
Revised Job Impact Statement
Since publication of a Notice of Revised Rule Making in the State Register on July 3, 2007, the proposed rule has been substantially revised as set forth in the Revised Regulatory Impact Statement submitted herewith.
The proposed rule, as revised, is necessary in order to ensure compliance with federal law and regulations and State law relating to the education of students with disabilities, ages 3–21; to ensure consistency in procedural safeguards; to promote timely evaluations and services; and to facilitate services in the least restrictive environment for students with disabilities, and 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
A Notice of Proposed Rule Making was published in the State Register on March 21, 2007 and a previous Notice of Revised Rule Making was published on July 3, 2007. A Summary of Assessment of Public Comment was Included with the Notice of Revised Rule Making published on July 3rd. The Summary included, among others, comments regarding the provision in proposed section 200.5(j)(4)(iii) relating to settlement agreements. Since then, the Department has not received any public comment under State Administrative Procedure Act section 202(4-a) that was not otherwise addressed in the Summary published on July 3rd. However, at the June 25–26, 2007 meeting of the Board of Regents, the Regents revised the proposed rule, as set forth in the Revised Regulatory Impact Statement submitted herewith, to delete the settlement agreement provision in 200.5(j)(4)(iii). In view of the deletion of the settlement provision, the Department response, as set forth in the Summary of Assessment of Public Comment published on July 3rd, to the comments regarding this provision has been revised as follows:
COMMENT:
Comments of support were received to retain the proposed language regarding settlement agreements. However, some expressed concern that the proposal may violate IDEA 2004; may affect the recovery of attorneys' fees and the ability for parents, particularly low-income parents, to find and retain attorneys; and may make it less likely that school districts will comply with settlement agreements. A comment suggested clarifying that when partial agreement is reached in the form of agreement on any one or more issues among those raised, the regulation would not require the hearing to be closed and presumably the process to start over before a new IHO with respect to outstanding issues. Some stated that the proposed amendment appears to interfere with the independence of the IHO and with a parent's ability to demonstrate exhaustion of administrative remedies with regard to all or part of a claim.
DEPARTMENT RESPONSE:
To provide further opportunity for discussion and review of the proposed amendment relating to the decision of an impartial hearing officer and settlement agreements reached by the parties, the proposed rule has been revised to delete section 200.5(j)(4)(iii).
