EDU-31-08-00014-P Special Education Programs and Services

7/30/08 N.Y. St. Reg. EDU-31-08-00014-P

NEW YORK STATE REGISTER

VOLUME XXX, ISSUE 31

July 30, 2008

RULE MAKING ACTIVITIES

EDUCATION DEPARTMENT

PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. EDU-31-08-00014-P

Special Education Programs and Services

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

Proposed Action:

Amendment of sections 200.4 and 200.5 of Title 8 NYCRR.

Statutory authority:

Education Law, sections 207 (not subdivided), 4402(1–7), 4403(3) and 4410(13)

Subject:

Special education programs and services.

Purpose:

To extend the date for required use of State forms for IEPs, prior written notice and meeting notice.

Text of proposed rule:

1. Paragraph (2) of subdivision (d) of section 200.4 of the Regulations of the Commissioner of Education is amended, effective November 13, 2008, as follows:

(2) Individualized education program (IEP). If the student has been determined to be eligible for special education services, the committee shall develop an IEP. IEPs developed on or after [January 1, 2009] September 1, 2009, shall be on a form prescribed by the commissioner and developed consistent with the commissioner's guidelines. In developing the recommendations for the IEP, the committee must consider the results of the initial or most recent evaluation; the student's strengths; the concerns of the parents for enhancing the education of their child; the academic, developmental and functional needs of the student, including, as appropriate, the results of the student's performance on any general State or districtwide assessment programs; and any special considerations in paragraph (3) of this subdivision. The IEP recommendation shall include the following:

(i) …

(ii) …

(iii) …

(iv) …

(v) …

(vi) …

(vii) …

(viii) …

(ix) …

(x) …

(xi) …

(xii) …

2. Paragraph (1) of subdivision (a) of Section 200.5 of the Regulations of the Commissioner of Education is amended, effective November 13, 2008, as follows:

(1) Prior written notice (notice of recommendation) that meets the requirements of section 200.1(oo) of this Part must be given to the parents of a student with a disability a reasonable time before the school district proposes to or refuses to initiate or change the identification, evaluation, educational placement of the student or the provision of a free appropriate public education to the student. Effective [January 1, 2009] September 1, 2009, the prior written notice shall be on [the] a form prescribed by the commissioner and developed consistent with the commissioner's guidelines.

3. Paragraph (1) of subdivision (c) of Section 200.5 of the Regulations of the Commissioner of Education is amended, effective November 13, 2008, as follows:

(1) Whenever the committee on special education proposes to conduct a meeting related to the development or review of a student's IEP, or the provision of a free appropriate public education to the student, the parent must receive notification in writing at least five days prior to the meeting. The meeting notice may be provided to the parent less than five days prior to the meeting to meet the timelines in accordance with Part 201 of this Title and in situations in which the parent and the school district agree to a meeting that will occur within five days. The parent may elect to receive the notice of meetings by an electronic mail (e-mail) communication if the school district makes such option available. Effective [January 1, 2009] September 1, 2009, the meeting notice shall be on a form prescribed by the commissioner and developed consistent with the commissioner's guidelines.

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

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

Data, views or arguments may be submitted to:

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

Public comment will be received until:

45 days after publication of this notice.

Regulatory Impact Statement

STATUTORY AUTHORITY:

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

Education Law section 4402 establishes district's duties regarding education of students with disabilities.

Education Law section 4403 outlines Department's and district's responsibilities regarding special education programs/services to students with disabilities. Section 4403(3) authorizes Department to adopt regulations as Commissioner deems in their best interests.

Education Law section 4410 outlines special education services and programs for preschool children with disabilities. Section 4410(13) authorizes Commissioner to adopt regulations.

LEGISLATIVE OBJECTIVES:

The proposed amendment is necessary to ensure consistency in procedural safeguards and carry out the legislative objectives in the aforementioned statutes.

NEEDS AND BENEFITS:

The proposed amendment is necessary to ensure consistency in procedural safeguards by extending the date by which school districts would be required to use the forms prescribed by the Commissioner for individualized education programs (IEPs), Committee on Special Education (CSE) and Committee on Preschool Special Education (CPSE) meeting notices and for prior written notices (notice of recommendation), and providing that the IEPs and notices be developed consistent with the Commissioner's guidelines.

The regulations that require the use of the State's forms for IEPs, CSE and CPSE meeting notices, and prior written notice (notice of recommendation) as of January 1, 2009 were adopted in September 2007. Since that date, the Department sought extensive comment from the field on the development of the forms from stakeholders across the State. In response to their comments, the Department proposes to extend the effective date for required use of the forms from January 1, 2009 to September 1, 2009. Extending the date for the required use of these forms will allow additional time for VESID to work with stakeholders to field check proposed forms and to provide professional development on the new forms and guidance. In addition, the proposed amendment will require school districts to use the new forms at the beginning of the 2009–2010 school year, and thereby avoid any risk of potential disruptions to a district's policies, procedures and practices that might result if this requirement were to be made effective in the middle of the 2008–2009 school year.

COSTS:

a. Costs to State government: None.

b. Costs to local governments: None.

c. Costs to regulated parties: None.

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

LOCAL GOVERNMENT MANDATES:

The proposed amendment does not impose any additional program, service, duty or responsibility upon local governments beyond those imposed by federal and State statutes and regulations. The proposed amendment will extend the date for requiring the State's forms for IEPs, prior written notice (notice of recommendation) and meeting notice, and provide that the IEPs and notices be developed consistent with the Commissioner's guidelines.

Section 200.4 revises the date by which all school districts must use the form prescribed by the Commissioner to develop IEPs from January 1, 2009 to September 1, 2009 and provides that such form be developed consistent with guidelines prescribed by the Commissioner.

Section 200.5 revises the date by which all school districts must use the prior written notice (notice of recommendation) and meeting notices prescribed by the Commissioner from January 1, 2009 to September 1, 2009 and provides that such forms be developed consistent with guidelines prescribed by the Commissioner.

PAPERWORK:

The proposed amendment will extend the date for requiring the State's forms for IEPs, prior written notice (notice of recommendation) and meeting notice and provides that such forms be developed consistent with guidelines prescribed by the Commissioner, and does not impose any additional paperwork requirements.

DUPLICATION:

The proposed amendment does not duplicate, overlap or conflict with any other State or federal statute or regulation.

ALTERNATIVES:

Since the September 2007 adoption of regulations requiring, as of January 1, 2009, the use of the State's forms for IEPs, prior written notice (notice of recommendation) and meeting notice, the Department has obtained extensive public comment on the development of the forms from stakeholders across the State. Various alternative effective dates for mandatory forms were considered. However, in response to public comment, the Department proposes to extend the effective date for required use of the forms from January 1, 2009 to September 1, 2009 to allow the Department additional time to work with stakeholders to field check proposed forms and to provide professional development of the new forms and guidance. In addition, the proposed amendment will require school districts to use the new forms at the beginning of the 2009–2010 school year, and thereby avoid any risk of potential disruptions to a district's policies, procedures and practices that might result if this requirement were to be made effective in the middle of the 2008–2009 school year.

FEDERAL STANDARDS:

The proposed amendment is not required by federal law or regulations, but is necessary to ensure consistency in procedural safeguards.

COMPLIANCE SCHEDULE:

It is anticipated that regulated parties will be able to achieve compliance with the proposed amendment by its effective date. The proposed amendment will require school districts to use the new forms for IEPs, prior written notice (notice of recommendation) and meeting notice at the beginning of the 2009–2010 school year, and thereby avoid any risk of potential disruptions to a district's policies, procedures and practices that might result if this requirement were to be made effective in the middle of the 2008–2009 school year.

Regulatory Flexibility Analysis

Small Businesses:

The proposed amendment relates to the provision of special education programs and services to students with disabilities, and is necessary to ensure consistency in procedural safeguards by extending the date for required use of the State's forms for individualized education programs (IEPs), prior written notice (notice of recommendation) and meeting notice and providing that the completion of such forms be consistent with guidelines prescribed by the Commissioner. Because it is evident from the nature of the rule that it does not affect small businesses, no affirmative steps are needed to ascertain that fact and none were taken. Accordingly, a regulatory flexibility analysis for small businesses is not required and one has not been prepared.

Local Governments:

EFFECT OF RULE:

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

COMPLIANCE REQUIREMENTS:

The proposed amendment will extend the date for required use of the State's forms for IEPs, prior written notice (notice of recommendation) and meeting notice and provide that the completion of such forms be developed consistent with the Commissioner's guidelines, and does not impose any additional compliance requirements upon local governments beyond those imposed by federal statutes and regulations.

Section 200.4 revises the date by which all school districts must use the form prescribed by the Commissioner to develop IEPs from January 1, 2009 to September 1, 2009 and provides that such form be developed consistent with the Commissioner's guidelines.

Section 200.5 revises the date by which all school districts must use the prior written notice (notice of recommendation) and meeting notices prescribed by the Commissioner from January 1, 2009 to September 1, 2009 and provides that such forms be developed consistent with the Commissioner's guidelines

PROFESSIONAL SERVICES:

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

COMPLIANCE COSTS:

The proposed amendment is necessary to ensure consistency in procedural safeguards by extending the date for requiring the State's forms for individualized education programs (IEPs), prior written notice (notice of recommendation) and meeting notice and providing that the completion of such forms be developed consistent with the Commissioner's guidelines, and does not impose any additional costs beyond those imposed by federal statutes and regulations and State statutes.

ECONOMIC AND TECHNOLOGICAL FEASIBILITY:

The proposed does not impose any new technological requirements. Economic feasibility is addressed above under Compliance Costs.

MINIMIZING ADVERSE IMPACT:

The proposed amendment is necessary to ensure consistency in procedural safeguards by extending the date for requiring the State's forms for individualized education programs (IEPs), prior written notice (notice of recommendation) and meeting notice and providing that the completion of such forms be developed consistent with the Commissioner's guidelines, and does not impose any additional costs or compliance requirements on these entities beyond those imposed by federal law and regulations and State statutes.

The regulations that require the use of the State's forms for IEPs, CSE and CPSE meeting notices, and prior written notice (notice of recommendation) as of January 1, 2009 were adopted in September 2007. Since that date, the Department sought extensive comment from the field on the development of the forms from stakeholders across the State. In response to their comments, the Department proposes to extend the effective date for required use of the forms from January 1, 2009 to September 1, 2009. Extending the date for the required use of these forms will allow additional time for VESID to work with stakeholders to field check proposed forms and to provide professional development on the new forms and guidance. In addition, the proposed amendment will require school districts to use the new forms at the beginning of the 2009–2010 school year, and thereby avoid any risk of potential disruptions to a district's policies, procedures and practices that might result if this requirement were to be made effective in the middle of the 2008–2009 school year.

LOCAL GOVERNMENT PARTICIPATION:

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

Rural Area Flexibility Analysis

TYPES AND ESTIMATED NUMBERS OF RURAL AREAS:

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

REPORTING, RECORDKEEPING AND OTHER COMPLIANCE REQUIREMENTS AND PROFESSIONAL SERVICES:

The proposed amendment will extend the date for required use of the State's forms for IEPs, prior written notice (notice of recommendation) and meeting notice and provide that the completion of such forms be developed consistent with the Commissioner's guidelines, and does not impose any additional compliance requirements upon rural areas beyond those imposed by federal statutes and regulations.

Section 200.4 revises the date by which all school districts must use the form prescribed by the Commissioner to develop IEPs from January 1, 2009 to September 1, 2009 and provides that such form be developed consistent with the Commissioner's guidelines.

Section 200.5 revises the date by which all school districts must use the prior written notice (notice of recommendation) and meeting notices prescribed by the Commissioner from January 1, 2009 to September 1, 2009 and provides that such forms be developed consistent with the Commissioner's guidelines.

The amendment does not impose any additional professional service requirements on rural areas, beyond those imposed by federal statutes and regulations and State statutes.

COSTS:

The proposed amendment is necessary to ensure consistency in procedural safeguards by extending the date for required use of the State's forms for individualized education programs (IEPs), prior written notice (notice of recommendation) and meeting notice and providing that the completion of such forms be developed consistent with the Commissioner's guidelines, and does not impose any additional costs beyond those imposed by such federal statutes and regulations and State statutes.

MINIMIZING ADVERSE IMPACT:

The proposed amendment is necessary to ensure consistency in procedural safeguards by extending the date for required use of the State's forms for individualized education programs (IEPs), prior written notice (notice of recommendation) and meeting notice and providing that the completion of such forms be developed consistent with the Commissioner's guidelines, and does not impose any additional costs or compliance requirements on these entities beyond those imposed by federal law and regulations and State statutes. Since these requirements apply to all school districts in the State, it is not possible to adopt different standards for school districts in rural areas.

The regulations that require the use of the State's forms for IEPs, CSE and CPSE meeting notices, and prior written notice (notice of recommendation) as of January 1, 2009 were adopted in September 2007. Since that date, the Department sought extensive comment from the field on the development of the forms from stakeholders across the State. In response to their comments, the Department proposes to extend the effective date for required use of the forms from January 1, 2009 to September 1, 2009. Extending the date for the required use of these forms will allow additional time for VESID to work with stakeholders to field check proposed forms and to provide professional development on the new forms and guidance. In addition, the proposed amendment will require school districts to use the new forms at the beginning of the 2009–2010 school year, and thereby avoid any risk of potential disruptions to a district's policies, procedures and practices that might result if this requirement were to be made effective in the middle of the 2008–2009 school year.

RURAL AREA PARTICIPATION:

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

Job Impact Statement

The proposed amendment relates to the provision of special education programs and services to students with disabilities, and is necessary to ensure consistency in procedural safeguards by extending the date for required use of the State's forms for individualized education programs (IEPs), prior written notice (notice of recommendation) and meeting notice and providing that the completion of such forms be developed consistent with the Commissioner's guidelines. 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.