Proposed
Regulations
Public Comment through May 7, 2007
Underlined language
is new language.
Bracketed [ ] language is language to be repealed. |
AMENDMENT OF THE REGULATIONS OF THE COMMISSIONER OF EDUCATION
Pursuant to Education Law sections 207, 3208, 3209, 3214, 3602-c, 3713, 4002, 4308, 4355, 4401, 4402, 4403, 4404, 4404-a and 4410
(1) research-based instruction provided to all students in the class by qualified personnel,
(2) instruction matched to student need with increasingly intensive levels of targeted intervention and instruction for students who do not make satisfactory progress in their levels of performance and/or in their rate of learning,
(3) frequent screenings and repeated assessments of student achievement,
(4) the application of information about the student’s response to instruction to make educational decisions about changes in goals, instruction and/or services and the decision to make a referral for special education programs and/or services, and
(5) written notification to the parents when the student requires an intervention beyond that provided to all students in the general education classroom that provides information about:
(i) the amount and nature of student performance data that will be collected and the general education services that will be provided pursuant to this paragraph;
(ii) strategies for increasing the student’s rate of learning; and
(iii) the parents’ right to request an evaluation for special education programs and/or services;
2. Subdivision (a) of section 120.6 of the Regulations of the Commissioner of Education is amended, effective July 19, 2007, as follows:
(a) For the purpose of compliance with the NCLB, a local educational agency shall ensure that its teachers of core academic subjects are highly qualified in accordance with the requirements and definitions prescribed in 34 CFR 200.55, [and] 200.56 (Code of Federal Regulations, revised as of July 1, 2003, title 34, volume 1, Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402-0001, 2003; available at the NYS Education Department, Office of Higher Education, 2M West Wing, Education Building, 89 Washington Avenue, Albany, NY 12234.) For the purpose of compliance with the Individuals with Disabilities Education Act (IDEA) and the NCLB, a local educational agency shall ensure that special education teachers who teach core academic subjects are highly qualified in accordance with 34 CFR 300.18 (Code of Federal Regulations, 2006 edition, title 34, section 300.18, Federal Register/ Vol. 71, No. 156/ August 14, 2006/ pp. 46758-46759 – Office of the Federal Register, National Archives and Records Administration, 800 North Capitol Street, NW, Suite 700, Washington, DC 20001; available at the Office of Vocational and Educational Services for Individuals with Disabilities, Room 1624, One Commerce Plaza, Albany, NY 12234). A local educational agency shall provide a teacher of core academic subjects who is not new to the profession the opportunity to meet the NCLB and IDEA [requirement] requirements to be highly qualified, in part, through passing the high objective uniform State standard of evaluation (HOUSSE). The HOUSSE shall be an evaluation, prescribed by the department and conducted locally either during a pre-employment review or at the time of an annual professional performance review prescribed in section 100.2(o) of this Title, that enables a teacher who is beyond the first year of the effective date of the teacher’s first teaching certificate, or in accordance with the provisions of 34 CFR 300.18, to demonstrate subject matter competency in all core academic subjects that the teacher teaches. The evaluation shall be based upon objective, coherent information as prescribed by the department, and shall include, but not be limited to, information on the teacher’s education, credentials, professional experience, and professional development.
3. Subdivisions (m),(p),(s), (ii),(nn), (qq), (zz), (bbb), (eee), (fff), of section 200.1 of the Regulations of the Commissioner of Education are amended, and a new subdivision (nnn) of section 200.1 of the Regulations of the Commissioner of Education is added, effective July 19, 2007, as follows:
(m) Consultant teacher services means direct and/or indirect services, as defined in this subdivision, provided to a student with a disability [who attends] in the student’s regular education classes and/or to such student's regular education teachers.
(1) . . .
(2) . . .
(p) Full-day preschool program means an approved special education program for preschool students with disabilities that provides instruction for a full-day session as defined in subdivision (q) of this section, provided however that in the event a program is approved by the commissioner to provide instruction for less than a full-day session but more than a half-day session, such program shall be deemed a full-day program solely for purposes of development of a recommendation by the preschool committee on special education pursuant to subparagraph (i) of paragraph b of subdivision 5 of section 4410 of the Education Law and section [200.16 (d)(3)] 200.16(e)(3) of this Part.
(s) Guardian ad litem means a person familiar with the provisions of this Part who is appointed from the list of surrogate parents or who is a pro bono attorney appointed to represent the interests of a student in an impartial hearing pursuant to section [200.5(j)(3)(vii)] 200.5(j)(3)(ix) of this Part and, where appropriate, to join in an appeal to the State Review Officer initiated by the parent or board of education pursuant to section 200.5(k) of this Part. A guardian ad litem shall have the right to fully participate in the impartial hearing to the extent indicated in section [200.5(j)(3)(ix)] 200.5(j)(3)(xii) of this Part.
(ii) (1) Parent means a birth or adoptive parent, a legally appointed guardian generally authorized to act as the child’s parent or authorized to make educational decisions for the child, a person in parental relationship to the child as defined in Education Law, section 3212, an individual designated as a person in parental relation pursuant to title 15-A of the General Obligations Law including an individual so designated who is acting in the place of a birth or adoptive parent (including a grandparent, stepparent, or other relative with whom the child resides), or a surrogate parent who has been appointed in accordance with section 200.5(n) of this Part. The term does not include the State if the student is a ward of the State.
(2) . . .
(3) . . .
(4) . . .
(nn) Preschool program means a special education program approved pursuant to section 4410 of the Education Law to provide special education programs and services, from the continuum of services set forth in section [200.16(h)] 200.16(i) of this Part, and to conduct evaluations of preschool students with disabilities if such program has a multidisciplinary evaluation component.
(qq) Related services means developmental, corrective, and other supportive services as are required to assist a student with a disability and includes speech-language pathology, audiology services, interpreting services, psychological services, physical therapy, occupational therapy, counseling services, including rehabilitation counseling services, orientation and mobility services, medical services as defined in this section, parent counseling and training, school health services, school social work, assistive technology services, appropriate access to recreation, including therapeutic recreation, other appropriate developmental or corrective support services, and other appropriate support services and includes the early identification and assessment of disabling conditions in students. [The term does not include a medical device that is surgically implanted, or the replacement of such device.]
(1) Services that apply to children with surgically implanted devices, including cochlear implants. Related services do not include a medical device that is surgically implanted, the optimization of that device’s functioning (such as mapping), maintenance of that device, or the replacement of that device, provided that nothing in this paragraph:
(i) limits the right of a student with a surgically implanted device to receive related services that are determined by the CSE or CPSE to be necessary for the student to receive a free appropriate public education; or
(ii) limits the responsibility of a school district to appropriately monitor and maintain medical devices that are needed to maintain the health and safety of the student, including breathing, nutrition, or operation of other bodily functions, while the student is transported to and from school or is at school; or
(iii) prevents the routine checking of an external component of a surgically implanted device to make sure it is functioning properly.
(zz) Student with a disability means a student with a disability as defined in section 4401(1) of Education Law, who has not attained the age of 21 prior to September 1st and who is entitled to attend public schools pursuant to section 3202 of the Education Law and who, because of mental, physical or emotional reasons, has been identified as having a disability and who requires special services and programs approved by the department. The terms used in this definition are defined as follows:
(1) . . .
(2) . . .
(3) . . .
(4) . . .
(5) . . .
(6) Learning disability means a disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written, which manifests itself in an imperfect ability to listen, think, speak, read, write, spell, or to do mathematical calculations, as determined in accordance with section [200.4(c)(6)] 200.4(j) of this Part. The term includes such conditions as perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia and developmental aphasia. The term does not include learning problems that are primarily the result of visual, hearing or motor disabilities, of mental retardation, of emotional disturbance, or of environmental, cultural or economic disadvantage.
(7) . . .
(8) . . .
(9) . . .
(10) . . .
(11) . . .
(12) . . .
(13) . . .
(bbb) Supplementary aids and services means aids, services, and other supports that are provided in regular education classes, [or] other education-related settings and in extracurricular and nonacademic settings to enable students with disabilities to be educated with nondisabled students to the maximum extent appropriate in accordance with the least restrictive environment.
(eee) Twelve-month special service and/or program means a special education service and/or program provided on a year-round basis, for students determined to be eligible in accordance with sections [200.6(j)(1)] 200.6(k)(1) and [200.16(h)(3)(v)] 200.16(i)(3)(v) of this Part whose disabilities require a structured learning environment of up to 12 months duration to prevent substantial regression. A special service and/or program shall operate for at least 30 school days during the months of July and August, inclusive of legal holidays, except that a program consisting solely of related service(s) shall be provided with the frequency and duration specified in the student's individualized education program.
(fff) Transition Services means a coordinated set of activities for a student with a disability, designed within a results-oriented process, that is focused on improving the academic and functional achievement of the student with a disability to facilitate the student’s movement from school to post-school activities, including, but not limited to, post-secondary education, vocational education, integrated competitive employment (including supported employment), continuing and adult education, adult services, independent living, or community participation. The coordinated set of activities must be based on the individual student's needs, taking into account the student's strengths, preferences and interests, and shall include needed activities in the following areas:
(1) . . .
(2) . . .
(3) . . .
(4) . . .
(5) when appropriate, acquisition of daily living skills and provision of a functional vocational evaluation.
(nnn) Interpreting services means oral transliteration services, cued language transliteration services, sign language transliteration and interpreting services and transcription services, such as communication access real-time translation, C-Print and TypeWell for students who are deaf or hard of hearing; and special interpreting services for students who are deaf-blind.
4. Section 200.2 of the Regulations of the Commissioner of Education is amended, effective July 19, 2007, as follows:
(a) Census and register of students with disabilities.
(1) . . .
(2) . . .
(3) . . .
(4) . . .
(5) . . .
(6) . . .
(7) Procedures to locate, identify, and evaluate all nonpublic private elementary and secondary school students with disabilities, including religious-school children as required by the Education Law must be established to ensure the equitable participation of parentally placed private school students with disabilities and an accurate count of such students. The child find activities must be similar to activities undertaken for students with disabilities in public schools and must be completed in a time period comparable to that for other students attending public schools in the school district. The school district shall consult with representatives of private schools and representatives of parents of parentally placed private school students with disabilities on the child find process.
(i) If a student is parentally-placed, or is going to be parentally-placed in a private elementary or secondary school that is not located in the student’s school district of residence, parental consent, or consent of a student 18 years of age or older, must be obtained before any personally identifiable information about the student is released between officials in the district where the private school is located and officials in the parent’s district of residence.
(ii) The school district shall maintain in its records and report to the commissioner, in a manner prescribed by the commissioner, on the number of students enrolled in such private schools by their parents who are evaluated to determine if they are students with disabilities, the number of such students who are determined to have a disability and the number of such students who received special education services under this Part.
(b) Written policy. Each board of education or board of trustees shall adopt written policy that establishes administrative practices and procedures:
(1) [establishes administrative practices and procedures] to ensure that students with disabilities residing in the district have the opportunity to participate in school district programs, to the maximum extent appropriate to the needs of the student including nonacademic and extracurricular programs and activities, which are available to all other students enrolled in the public schools of the district, which may include counseling services, athletics, transportation, health services, recreational activities, special interest groups or clubs sponsored by the school district, referrals to agencies that provide assistance to individuals with disabilities and employment of students, including both employment by the school district and assistance in making outside employment available;
(2) [establishes administrative practices and procedures] to ensure that each preschool student with a disability residing in the district has the opportunity to participate in preschool programs, including timely evaluation and placement.
(3) [establishes administrative practices and procedures] for appointing and training appropriately qualified personnel, including the members and chairpersons of the committee on special education and the committee on preschool special education, to carry out the functions identified in this Part;
(4) [establishes policies and administrative practices and procedures] to implement the provisions of section 200.6(a) of this Part and to provide special services or programs, to the extent appropriate to the needs of the student, to enable the student to be involved in and progress in the general education curriculum;
(5) [establishes administrative practices and procedures] for the purpose of ensuring that parents have received and understand the request for consent for evaluation of a preschool student;
(6) [establishes administrative practices and procedures] for the purpose of ensuring the confidentiality of personally identifiable data, information or records pertaining to a student with a disability. Such personally identifiable information shall not be disclosed by any officer or employee of the State Education Department or any school district, or member of a committee on special education or committee on preschool special education to any person other than the parent of such student, except in accordance with [sections] section 300.500 and [300.560 through 300.577] sections 300.610 through 300.625 and Part 99 of title 34 of the Code of Federal Regulations (Code of Federal Regulations, 2006 edition, title 34, section 300.500, Federal Register/ Vol.71, No.156/ August 14, 2006/ p.46791; title 34, sections 300.610-300.625, Federal Register/ Vol.71, No.156/ August 14, 2006/ pp.46802-46804 - Office of the Federal Register, National Archives and Records Administration, 800 North Capitol Street, NW Suite 700, Washington DC 20001; Code of Federal Regulations, [1999] 2005 edition, title 34, Part 99, Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402-0001[: 1999] - available at the Office of Vocational and Educational Services for Individuals with Disabilities, Room 1624, One Commerce Plaza, Albany, NY 12234);
(7) [establishes a plan and policies] for implementing schoolwide approaches, which may include a response to intervention process pursuant to section 100.2(ii) of this Title, and prereferral interventions in order to remediate a student’s performance prior to referral for special education;
(8) [establishes plans and policies] for the appropriate declassification of students with disabilities which must include:
(i) . . .
(ii) . . .
(iii) the provision of educational and support services to the student upon declassification; [and]
(9) [establishes administrative procedures] for the selection and board appointment of an impartial hearing officer consistent with the procedures in paragraph (e)(1) of this section and section 200.5(j) of this Part.
(10) and establishes a plan, pursuant to sections 1604(29-a), 1709(4-a), 2503(7-a) and 2554(7-a) of the Education Law, to ensure that all instructional materials to be used in the schools of the district are available in a usable alternative format, which shall meet National Instructional Materials Accessibility Standard [as defined in 20 U.S.C. section 1474(e)(3)(B) (Public Law section 108-446, section 674, 118 STAT. 2792; Superintendent of Documents, U. S. Government Printing Office, Stop SSOP, Washington, DC 20402-0001; 2004] in accordance with Appendix C to Part 300 of Title 34 of the Code of Federal Regulations (Code of Federal Regulation, 2006 edition, title 34, Part 300, Appendix C, Federal Register/ Vol. 71, No. 156/ August 14, 2006/ pp. 46814-46817 – Office of the Federal Register, National Archives and Records Administration, 800 North Capitol Street, NW, Suite 700, Washington, DC 20001; available at the Office of Vocational and Educational Services for Individuals with Disabilities, Room 1624, One Commerce Plaza, Albany, NY 12234), for each student with a disability in accordance with the student's educational needs and course selections at the same time that such materials are available to non-disabled students. For purposes of this paragraph, "alternative format" is defined as any medium or format for the presentation of instructional materials, other than a traditional print textbook, that is needed as an accommodation for a student with a disability enrolled in the school district, including but not limited to Braille, large print, open and closed captioned, audio, or an electronic file. An electronic file must be compatible with at least one alternative format conversion software program that is appropriate to meet the needs of the individual student. The plan shall:
(i) . . .
(ii) . . .
(iii) . . .
(iv) . . .
(v) . . .
(11) [establishes administrative practices and procedures] to ensure that:
(i) . . .
(a) . . .
(ii) . . .
(iii) . . .
(12) that [identifies] identify the measurable steps it shall take to recruit, hire, train and retain highly qualified personnel, as defined in section 120.6 of this Title and 34 CFR 300.18 (Code of Federal Regulations, 2006 edition, title 34, section 300.18, Federal Register/ Vol. 71, No. 156/ August 14, 2006/ pp. 46758-46759 – Office of the Federal Register, National Archives and Records Administration, 800 North Capitol Street, NW, Suite 700, Washington, DC 20001; available at the Office of Vocational and Educational Services for Individuals with Disabilities, Room 1624, One Commerce Plaza, Albany, NY 12234), to provide special education programs and services;
(13) that [describes] describe the guidelines for the provision of appropriate accommodations necessary to measure the academic achievement and functional performance of the student in the administration of districtwide assessments; [and]
(14) that [identifies] identify how the district, to the extent feasible, will use universal design principles in developing and administering any districtwide assessment programs; and
(15) to ensure that the school district publicly reports on revisions to its policies, procedures and/or practices upon a finding by the Department that the district has inappropriate policies, procedures or practices resulting in a significant disproportionality by race/ethnicity in the suspension, identification, classification and/or placement of students with disabilities.
(e) Maintenance of lists. The board of education or trustees of each school district shall establish a list of:
(1) the name and statement of the qualifications of each impartial hearing officer who is:
(i) certified by the Commissioner of Education pursuant to section [220.1(x)(2)] 200.1(x)(4) of this Part; and
(ii) . . .
(2) . . .
(3) . . .
(f) . . .
(g) . . .
(h) . . .
(i) Responsibility of boards of cooperative educational services (BOCES). (1) Responsibility for ensuring the availability of instructional materials in alternative formats for students with disabilities. By July 1, 2002, each BOCES shall establish a plan to ensure that all instructional materials to be used in the programs of the BOCES are available in a usable alternative format, which shall meet National Instructional Materials Accessibility Standard [as defined in 20 U.S.C. section 1474(e)(3)(B) (Public law section 108-446, section 674, 118 STAT. 2792; Superintendent of Documents, Stop SSOP, U. S. Government Printing Office, Washington, DC 20402-0001; 2004] in accordance with Appendix C to Part 300 of Title 34 of the Code of Federal Regulations (Code of Federal Regulations, 2006 edition, title 34, Part 300, Appendix C, Federal Register/ Vol.71, No.156/ August 14, 2006/ pp. 46814-46817 - Office of the Federal Register, National Archives and Records Administration, 800 North Capitol Street, NW Suite 700, Washington DC 20001; available at the Office of Vocational and Educational Services for Individuals with Disabilities, Room 1624, One Commerce Plaza, Albany, New York 12234), for each student with a disability in accordance with the student's educational needs and course selections at the same time that such materials are available to non-disabled students. For purposes of this subdivision, "alternative format" is defined as any medium or format for the presentation of instructional materials, other than a traditional print textbook, that is needed as an accommodation for a student with a disability enrolled in a program of the BOCES, including but not limited to Braille, large print, open and closed captioned, audio, or an electronic file. An electronic file must be compatible with at least one alternative format conversion software program that is appropriate to meet the needs of the individual student. The plan shall:
(i) . . .
(ii) . . .
(iii) . . .
(iv) . . .
(v) . . .
(2) . . .
5. Subparagraph (v) of paragraph (2) of subdivision (c) and subdivision (d) of section 200.3 of the Regulations of the Commissioner of Education are amended, effective July 19, 2007, as follows:
(v) a school psychologist, whenever a new psychological evaluation is reviewed or a change to a program option with a more intensive staff/student ratio, as set forth in section [200.6(g)(4)] 200.6(h)(4) of this Part, is considered;
(d) The regular education teacher of the student with a disability must, to the extent appropriate, participate in the development, review and revision of a student's IEP, including assisting in the determination of:
(1) appropriate positive behavioral interventions and supports and other strategies for the student; and
(2) supplementary aids and services, program modifications [or] and supports for school personnel that will be provided for the student, consistent with section 200.4(d) of this Part.
6. Section 200.4 of the Regulations of the Commissioner of Education is amended, effective July 19, 2007, as follows:
(a) Referral. A student suspected of having a disability shall be referred in writing to the chairperson of the district's committee on special education or to the building administrator of the school which the student attends or is eligible to attend for an individual evaluation and determination of eligibility for special education programs and services.
(1) . . .
(2) . . .
(3) . . .
(4) . . .
(5) . . .
(6) . . .
(7) . . .
(8) Except as otherwise provided in section 200.5(b)(6) of this Part, [In] in the absence of a written agreement to withdraw a referral, as described in paragraph (7) of this subdivision, and in the event that parental consent to an initial evaluation is not obtained within 30 days of the date of receipt of referral, the chairperson shall document attempts made by the chairperson or other representatives of the committee to obtain parental consent, and shall notify the board of education that they may utilize the due process procedures described in section 200.5 of this Part to permit the district to conduct an evaluation of the student without the consent of the parent.
(9) The building administrator, upon receipt of a referral or copy of a referral, may request a meeting with the parent or person in parental relationship to the student, and the student, if appropriate, to determine whether the student would benefit from additional general education support services as an alternative to special education, including the provision of educationally related support services, speech and language improvement services, academic intervention services, and any other services designed to address the learning needs of the student and maintain a student's placement in general education with the provision of appropriate educational and support services.
(i) If the person making the referral is a professional staff member of the school district in which the student resides, that person shall attend such meeting. The building administrator shall ensure that the parent understands the proceedings of the meeting and shall arrange for the presence of an interpreter, if necessary. Any other person making a referral shall have the opportunity to attend such meeting. If at such meeting the parent or person in parental relationship and the building administrator agree in writing that, with the provision of additional general education support services, the referral is unwarranted, the referral shall be deemed withdrawn, and the building administrator shall provide the chairperson of the committee on special education, the person who made the referral if a professional staff member of the school district, the parent or person in parental relationship to the student, and the student, if appropriate, with copies of the agreement.
(ii) The copy of the agreement provided to the parent or person in parental relationship shall be in the native language of such person. Such agreement shall contain a description of the additional general education support services to be provided, instructional strategies to be used and student centered data to be collected and the proposed duration of such program. A copy of the agreement shall also be placed in the student's cumulative education record file.
(iii) The meeting:
[(i)](a) shall be conducted within 10 school days of the building administrator's receipt of the referral; and
[(ii)](b) shall not impede a committee on special education from continuing its duties and functions under this Part.
(b) Individual evaluation and reevaluation. (1) Unless a referral for an evaluation submitted by a parent or a school district is withdrawn pursuant to paragraph (a) (7) or (9) of this section after parental consent has been obtained or a parental refusal to consent is overridden, an individual evaluation of the referred student shall be initiated by a committee on special education and shall include a variety of assessment tools and strategies, including information provided by the parent, to gather relevant functional, developmental and academic information about the student that may assist in determining whether the student is a student with a disability and the content of the student’s individualized education program, including information related to enabling the student to participate and progress in the general education curriculum (or for a preschool child, to participate in appropriate activities). The individual evaluation must be at no cost to the parent, and the initial evaluation must include at least:
(i) . . .
(ii) . . .
(iii) . . .
(iv) an observation of the student in the [current educational placement] student’s learning environment (including the regular classroom setting) or, in the case of a student of less than school-age or out of school, an environment appropriate for a student of that age, to document the student’s academic performance and behavior in the areas of difficulty; and
(v) . . .
(2) . . .
(3) . . .
(4) . . .
(5) . . .
(6) School districts shall ensure that:
(i) . . .
[(ii) if an assessment is not conducted under standard conditions, a description of the extent to which it varied from standard conditions (e.g., the qualifications of the person administering the test, or the method of test administration) must be included in the evaluation report;]
[(iii)](ii) [tests] assessments and other evaluation materials include those tailored to assess specific areas of educational need and not merely those which are designed to provide a general intelligence quotient;
[(iv)](iii) [tests] assessments are selected and administered to ensure that, when [a test] an assessment is administered to a student with impaired sensory, manual or speaking skills, the [test] assessment results accurately reflect the student's aptitude or achievement level or whatever other factors the test purports to measure, rather than reflecting the student's impaired sensory, manual or speaking skills, except where those skills are factors which the test purports to measure;
[(v)](iv) . . .
[(vi)](v) . . .
[(vii)](vi) . . .
[(viii)](vii) . . .
[(ix)](viii) . . .
[(x)](ix) . . .
[(xi)](x) . . .
[(xii)](xi) . . .
[(xiii)](xii) for purposes of eligibility and continuing eligibility determinations, a copy of the evaluation report and the documentation of determination of eligibility are provided at no cost to the parent;
[(xiv)](xiii) the procedures for evaluating students suspected of having a learning disability are in accordance with [sections 300.540 through 300.543 of title 34 of the Code of Federal Regulations (Code of Federal Regulations, 1999 edition, Superintendent of Documents, U.S. Government Printing Office, Washington, D.C. 20402: 1999 - available at the Office of Vocational and Educational Services for Individuals with Disabilities, Room 1624, One Commerce Plaza, Albany, NY 12234)] subdivision (j) of this section;
[(xv)](xiv) the procedures for conducting expedited evaluations are conducted pursuant to [Part 201] section 201.6 of this Title;
[(xvi)](xv) . . .
[(xvii)](xvi) assessments of students with disabilities who transfer from one school district to another school district in the same [academic] school year are coordinated with such student's prior and subsequent schools, as necessary, and as expeditiously as possible to ensure prompt completion of full evaluations.
(7) . . .
(8) . . .
(9) . . .
(c) Eligibility determinations. (1) [Upon completing the administration of tests and other evaluation materials,] In interpreting evaluation data for the purpose of determining if a student is a student with a disability, as defined in sections 200.1(mm) or (zz) of this Part, and determining the educational needs of the student, the committee on special education and other qualified individuals must [determine whether the student is a student with a disability, as defined in sections 200.1(mm) or 200.1(zz) of this Part] draw upon information from a variety of sources, including aptitude and achievement tests, parent input, and teacher recommendations, as well as information about the student’s physical condition, social or cultural background, and adaptive behavior; and ensure that information obtained from all these sources is documented and carefully considered. [and the] The school district must provide a copy of the evaluation report and the documentation of eligibility to the student's parent.
(2) A student shall not be determined eligible for special education if the determinant factor is:
(i) . . .
(ii) lack of appropriate instruction in math; or
(iii) . . .
(3) . . .
(4) . . .
(5) . . .
(6) [Learning disabilities. In determining whether] The determination that a student has a learning disability as defined in section 200.1(zz)(6) of this Part shall be made pursuant to subdivision (j) of this section.[, the school district:
(i) may use a process that determines if the student responds to scientific, research-based intervention as part of the evaluation procedures pursuant to paragraph (b) of this section; and
(ii) is not required to consider whether a student has a severe discrepancy between achievement and intellectual ability in oral expression, listening comprehension, written expression, basic reading skill, reading comprehension, mathematical calculation or mathematical reasoning.]
(d) Recommendation. For a student not previously identified as having a disability, the committee on special education shall provide a recommendation to the board of education, which shall arrange for the appropriate special education programs and services to be provided to the student with a disability within 60 school days of the receipt of consent to evaluate. For a student with a disability referred for review pursuant to subdivision (f) of this section, a recommendation shall be provided to the board of education, which shall arrange for the appropriate special education programs and services to be provided to the student with a disability within 60 school days of the referral for review of the student with a disability. Prior to the development of a recommendation, the committee shall ensure that the appropriateness of [the] reading and math instruction and other resources of the regular education program, including educationally related support services, and academic intervention services, has been considered.
(1) . . .
(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 July 1, 2008, shall be on a form prescribed by the Commissioner. 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) Measurable annual goals.
(a) The IEP shall list measurable annual goals, including academic and functional goals, consistent with the student's needs and abilities. The measurable annual goals[, including benchmarks or short-term objectives,] must relate to:
(1) . . .
(2) . . .
(b) . . .
(c) . . .
(iv) . . .
(v) Special education program and services.
(a) The IEP shall indicate the recommended special education program and services as defined in section 200.1(qq) and 200.1(ww) of this Part from the options set forth in section 200.6 of this Part or, for preschool students from those options set forth in section [200.16(h)] 200.16(i) of this Part, and the supplementary aids and services as defined in section 200.1(bbb) of this Part that will be provided for the student:
(1) . . .
(2) . . .
(3) . . .
(b) . . .
(vi) . . .
(vii) . . .
(viii) Participation in regular [programs] class. The IEP shall provide:
(a) an explanation of the extent, if any, to which the student will not participate in regular [education programs] class; or
(b) . . .
(c) . . .
(d) . . .
(ix) . . .
(x) . . .
(xi) . . .
(xii) . . .
(3) . . .
(4) Such recommendations shall
(i) be developed in meetings of the committee on special education.
(a) . . .
(b) where a child is determined to be at risk of a future placement in a residential school, the committee must, with parental consent or consent of a student 18 years of age or older, request in writing that a designee of the appropriate county or State agency participate in any proceeding of the committee to make recommendations concerning the appropriateness of residential placement and other programs and placement alternatives, including but not limited to, community support services that may be available to the family. The committee must notify the local social services district when a student who is in a foster care placement is at risk of a future placement in a residential school. A copy of such request must be forwarded to the Office of Mental Health and the Office of Mental Retardation and Developmental Disabilities. In the event that such persons are unable to attend such meetings, the committee shall attempt alternative means allowing for their participation, such as individual or conference telephone discussions, and such attempts shall be documented;
(c) if the purpose of the meeting is to consider [the need for transition services] the postsecondary goals for the student and the transition services needed to assist the student in reaching those goals, the school district shall invite the student [and a representative of the agencies likely to be responsible for providing or paying for transition services]. If the student does not attend, the district shall take steps to ensure that the student's preferences and interests are considered. To the extent appropriate and with parental consent or consent of a student 18 years of age or older, the school district must invite a representative of any participating agency that is likely to be responsible for providing or paying for transition services. If an agency invited to send a representative to a meeting does not do so, the district [shall] should take steps to involve the other agency in the planning of any transition services;
(d) . . .
(ii) . . .
(5) . . .
(6) . . .
(e) IEP implementation. (1) . . .
(2) . . .
(3) . . .
(4) . . .
(5) . . .
(6) . . .
(7) . . .
(8) Students with disabilities who transfer school districts. (i) Transfer within New York State. In the case of a student with a disability who had an IEP that was in effect in this State and who transfers from one school district and enrolls in a new school district within the same [academic] school year, the new school district shall provide such student with a free appropriate public education, including services comparable to those described in the previously held IEP, in consultation with the parents, until such time as the school district adopts the previously held IEP or develops, adopts and implements a new IEP that is consistent with Federal and State law and regulations.
(ii) Transfer from outside New York State. In the case of a student with a disability who transfers school districts within the same [academic] school year, who enrolls in a new school district and who had an IEP that was in effect in another State, the school district shall provide such student with a free appropriate public education, including services comparable to those described in the previously held IEP, in consultation with the parents, until such time as the school district conducts an evaluation pursuant to this section, if determined to be necessary by such school district, and develops a new IEP, if appropriate, that is consistent with Federal and State law and regulation.
(iii) . . .
(9) . . .
(f) . . .
(g) Amendments to the IEP. Amendments to an IEP made after the annual review [by the CSE] may be made by rewriting the IEP or by developing a written document to amend or modify the student’s current IEP, provided that:
(1) . . .
(2) . . .
(h) Requests to the committee on special education pursuant to section 4005 of the Education Law. (1) If, pursuant to section 4005 of the Education Law, a committee on special education receives a written request for evaluative information and program recommendations for a student from 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 section 9.51(d) of the Mental Hygiene Law, the committee shall, with parental consent or consent of a student 18 years of age or older, provide such information and recommendation to the requesting agency within 42 days of the date of receipt of such a request, provided that the committee on special education can obtain the consent of the student's parent to conduct an evaluation.
(2) . . .
(3) . . .
(i) Written notice upon graduation or aging out. Pursuant to Education Law, section 4402(1)(b)(5), the committee on special education or, in the case of a State-operated school, the multidisciplinary team, shall provide written notice to the parents or guardian of each student specified in subparagraphs (1)(i) and (ii) of this subdivision and, if such student is 18 years of age or older, to the student, of the date upon which the student will no longer be entitled to receive tuition free educational services by reason of receipt of a high school diploma or in accordance with Education Law, section 4402(5), whichever is earlier.
(1) . . .
(2) . . .
(3) In addition to the requirements of paragraph (2) of this subdivision, the notice to the parent, or student, where appropriate, shall:
(i) . . .
(ii) . . .
(iii) provide assurances of the confidentiality of personally identifiable data which shall be in accordance with section 200.5(e) of this Part and section [247.4] 247.5 of this Title, as applicable.
(4) . . .
(5) . . .
(j) Additional procedures for identifying students with learning disabilities.
(1) Referral. If, prior to a referral, a student has not made adequate progress after an appropriate period of time when provided instruction, as described in paragraph (4)(ii)(a) and (b) of this subdivision, and whenever a student is referred for an evaluation, the school district must promptly request parental consent to evaluate the student to determine if the student needs special education and related services, and must adhere to the timeframes described in section 200.4(b)(4) and (7) of this Part, unless extended by mutual written agreement of the student’s parents and the CSE.
(2) Individual evaluation. An individual evaluation of a referred student shall be initiated by the CSE consistent with subdivision (b) of this section. The individual evaluation shall include a variety of assessment tools and strategies pursuant to subdivision (b) of this section and may not rely on any single procedure as the sole criterion for determining eligibility.
(i) Observation. The CSE, in determining whether a student has a learning disability, shall:
(a) use information from an observation in routine classroom instruction and monitoring of the student’s performance that was done before the student was referred for an evaluation; or
(b) arrange to have an observation of the student’s academic performance in the regular classroom after the student has been referred for an evaluation and parental consent, consistent with section 200.5(b) of this Part, is obtained. Such observation shall be conducted by an individual specified in paragraph (4)(i) of this subdivision.
(3) Process for determining eligibility. In determining whether a student has a learning disability, the school district shall, consistent with the criteria in paragraph (4) of this subdivision, use:
(i) a process based on the student’s response to scientific, research-based intervention pursuant to section 100.2(ii) of this Title; or
(ii) an alternative research-based procedure to determine if a student has a learning disability as defined in section 200.1(zz)(6) of this Part; or
(iii) a severe discrepancy between achievement and intellectual ability in oral expression, listening comprehension, written expression, basic reading skill, reading fluency skills, reading comprehension, mathematical calculation and/or mathematical problem solving, provided that after July 1, 2010, a school district shall not use the severe discrepancy criteria to determine that a student in kindergarten through grade four has a learning disability as defined in section 200.1(zz)(6) of this Part.
(4) Criteria for determining the existence of a learning disability.
(i) The CSE, which shall include the student’s regular education teacher as defined in section 200.1(pp) of this Part and at least one person qualified to conduct individual diagnostic examinations of students (such as a school psychologist, teacher of speech and language disabilities, speech/language pathologist or reading teacher), may determine that a student has a learning disability, as defined in section 200.1(zz)(6) of this Part, if:
(a) The student does not achieve adequately for the student’s age or to meet State-approved grade-level standards in one or more of the following areas, when provided with learning experiences and instruction appropriate for the student’s age or State-approved grade–level standards:
(1) Oral expression,
(2) Listening Comprehension,
(3) Written expression,
(4) Basic reading skills,
(5) Reading fluency skills,
(6) Reading comprehension,
(7) Mathematics calculation,
(8) Mathematics problem solving, and
(b) The student:
(1) does not make sufficient progress to meet age or State-approved grade-level standards in one or more of the areas identified in paragraph (4)(i)(a) of this subdivision when using a process based on the student’s response to scientific, research-based intervention; or
(2) The student exhibits a pattern of strengths and weaknesses in performance, achievement, or both, relative to age, State-approved grade-level standards, or intellectual development that is determined by the group to be relevant to the identification of a learning disability, using appropriate assessments consistent with section 200.4(b) of this Part; and
(c) The CSE determines that its findings under paragraph (4)(i)(a) and (b) of this subdivision are not primarily the result of:
(1) a visual, hearing, or motor disability;
(2) mental retardation;
(3) emotional disturbance;
(4) cultural factors;
(5) environmental or economic disadvantage; or
(6) limited English proficiency.
(ii) To ensure that underachievement in a student suspected of having a learning disability is not due to lack of appropriate instruction in reading or mathematics, the CSE must consider, as part of the evaluation procedures pursuant to section 200.4(b) and (c) of this Part:
(a) data that demonstrate that prior to, or as a part of, the referral process, the student was provided appropriate instruction in regular education settings, delivered by qualified personnel; and
(b) data-based documentation of repeated assessments of achievement at reasonable intervals, reflecting formal assessment of student progress during instruction, which was provided to the student’s parents.
(5) Specific documentation for the eligibility determination.
(i) When determining eligibility for a student suspected of having a learning disability, the CSE shall prepare a written report containing a statement of:
(a) whether the student has a learning disability;
(b) the basis for making the determination, including an assurance that the determination has been made in accordance with section 200.4(c)(1) of this Part;
(c) the relevant behavior, if any, noted during the observation of the student and the relationship of that behavior to the student’s academic functioning;
(d) the educationally relevant medical findings, if any;
(e) whether, consistent with paragraph (4)(i)(a) and (b) of this subdivision, the student does not achieve adequately for the student’s age or to meet State-approved grade-level standards; and
(1) the student does not make sufficient progress to meet age or State-approved grade-level standards; or
(2) the student exhibits a pattern of strengths and weaknesses in performance, achievement, or both, relative to age, State-approved grade level standards or intellectual development;
(f) the determination of the CSE concerning the effects of a visual, hearing, or motor disability; mental retardation; emotional disturbance; cultural factors; environmental or economic disadvantage; or limited English proficiency on the student’s achievement level; and
(g) if the student has participated in a process that assesses the student’s response to scientific, research-based intervention:
(1) the instructional strategies used and the student-centered data collected; and
(2) the documentation that the student’s parents were notified in accordance with section 100.2(ii)(e) of this Title.
(ii) Each CSE member must certify in writing whether the report reflects the member’s conclusion. If it does not reflect the member’s conclusion, the CSE member must submit a separate statement presenting