NYS Laws and Regulations differ from Federal Reguirements

New York State Law, Regulations and Policy Not Required by Federal Law/Regulation/Policy

20 U.S.C. § 1407(a)(2) requires that each State identify in writing to the Secretary of the United States Department of Education (USDOE) and to local educational agencies (LEAs) located in the State any rule, regulation or policy as a State-imposed requirement that is not required by the Individuals with Disabilities Education Act (IDEA) and federal regulations. The New York State Education Department has taken steps to conduct a comprehensive review of its laws and regulations that apply to the education of students with disabilities. The following summary provides a list of New York State (NYS) laws and regulations that differ from federal requirements in effect on the date of the analysis. Items are included in the list where there are no comparable federal requirements because the federal statute and regulations are silent on the subject (e.g., provisions governing rate-setting or the payment of State excess cost aid) as well as where State requirements go beyond federal requirements. Accordingly, the list includes State requirements that, though not technically required by IDEA or the federal regulations currently in place, are necessary for NYS' special education system to function. Requirements that apply equally to disabled and non-disabled students are not included. Statutory requirements are listed first, followed by regulatory requirements.

BOCES	Board of Cooperative Educational Services
BOE	Board of Education
CSE	Committee on Special Education
CPSE	Committee on Preschool Special Education
Ed. L.	Education Law
EI	Early Intervention
FAPE	Free Appropriate Public Education
IDEA	Individuals with Disabilities Education Act
IEP	Individualized Education Program
IHO	Impartial Hearing Officer
LEA	Local Educational Agency
NYC	New York City
NYS	New York State
SEA	State Educational Agency
SED	State Education Department
8 NYCRR	New York Code, Rules and Regulations (Education)
34 CFR	Code of Federal Rules
§	Section

State Requirement	Citation	How State Requirement is Different from Federal Requirement
BOCES required to submit special education space requirements plans by 2/1 of every 5^th year. Requirements for development, content, submission, approval of the plan, amendments to the plan and an annual progress report.	Ed. L. §1950(17) 8 NYCRR §200.2(g)	Federal law does not specify how a state must ensure space in facilities to meet the needs of students with disabilities and least restrictive environment responsibilities.
The school district of residence is the LEA and develops the IEP for charter school students.	Ed. L. §2853(4)	Federal law leaves it to the states to decide whether charter schools are LEAs or are schools of a school district.
School districts must have an approved plan for the use of State public excess cost aid in the most educationally advantageous manner.	Ed. L.§3602(10)(a)	Federal law does not impose planning requirements relating to the use of State aid.
School districts submit an approved plan of service every two years as a condition of receipt of State public excess cost aid.	Ed. L. §3602(10)(b)	Federal law does not impose planning requirements relating to the use of State aid.
State aid formulas for the computation of State public excess cost aid.	Ed. L. §§3602(1) & (19); Chapter 53 of the Laws of 2005	Federal law does not prescribe formulas for computing State aid for services to students with disabilities.
Minimum periods of instruction or services to qualify for weightings that generate additional state public excess cost aid (e.g., 20% or more of the school week in a resource room or receiving special services or programs; 60% or more of the school day in a special class or an integrated setting).	Ed. L. §3602 (19)(b); Chapter 53 of the Laws of 2005	Federal law does not prescribe formulas for computing State aid for services to students with disabilities.
Students with disabilities who are residents of the State attending nonpublic schools located in the State are dually enrolled in the public schools for purposes of special education and receive services pursuant to an IEP developed by the CSE of the student's school district of residence. Parents must request special education services before June 1 preceding the school year for which the request is made subject to certain exceptions.	Ed. L. §3602-c (2)(a)	Federal law requires that the school district in which the nonpublic school is located uses a proportionate share of its IDEA funds to provide services to nonpublic school students, based on consultation with nonpublic school representatives. Districts develop an individualized service plan (ISP) for a student that does not create an individual right to services.
A parent of a student attending a nonpublic school may bring an impartial hearing to challenge their child’s IEP.	Ed. L. §3602-c (2)(a)	Nonpublic school students do not have an individual right to services under IDEA and therefore are not entitled to a due process hearing.
School district in which the nonpublic school is located refers a nonpublic school student suspected of having a disability to the CSE of the child's school district of residence for evaluation.	Ed. L. §3602-c(2-a)	Federal law imposes child find requirement on the school district of location and does not require referral to the school district of residence to conduct the evaluation.
School district of location serving a nonpublic school student recovers tuition from the school district of residence of the student, exclusive of costs paid by district of location using federal or State funds.	Ed. L. §3602-c(7)	Federal law does not address the recovery of tuition costs incurred by the school district in which the nonpublic school is located for nonresident students, where the services required under State law exceed the federal minimum and require a substantial State and local contribution.
Establishes a timeline of 42 days of the date of receipt of a request by a CSE for evaluative information for the CSE to provide such information and recommendation to the requesting agency. Establishes procedures for the CSE receiving such a request to obtain parental consent for the evaluation to develop a written recommendation.	Ed. L. §4005(1) 8 NYCRR §200.4(h)	There are no comparable federal requirements.
Reimbursement of costs of tuition and maintenance for students attending a State-supported school for the deaf or blind.	Ed. L. §§4204,4207, 4204-b, 4211	Federal law does not require that states set tuition or maintenance rates for schools and leaves it to the states to assign fiscal responsibility for special education programs and services among school districts and other public agencies.
Deaf infant definition includes infants who are unable to respond to sounds presented at intensities of 60 decibels sound pressure level.	Ed. L. §4204(a) 8 NYCRR §200.7 (d)(7)(i)(a)	The federal definition of deaf infant does not include a decibel sound pressure standard.
Admission to State-operated schools for the blind and deaf through appointment by the Commissioner.	Ed. L. §§4308(1)–(2)(a); 4351–4355 (a)(2) 8 NYCRR §200.7(d)(1)	There are no federal requirements regarding appointment to State operated schools.
Requires school psychologist and additional parent member as members of the multidisciplinary team (MDT) at the State-operated schools. Requires a physician to be a member of the MDT if requested by the school or parent 3 days before the meeting. All members of the MDT must participate in meetings except that the parent can decline the participation of the additional parent member. Additional MDT members may be appointed by school district of residence.	Ed. L. §§4308(2)(b) -(e); 4355(2)(b)- (e) 8 NYCRR §200.7(d)(1)	Federal law authorizes the parent and school to agree that the attendance of a CSE member is not necessary or that a CSE member could be excused from a meeting. Federal law and regulations do not require a school psychologist, additional parent member or physician. 34 CFR §300.554 requires the SEA to ensure that the least restrictive environment requirements in §300.550 are effectively implemented for children in public or private institutions.
The definition of student with a disability includes a student with a disability who requires related services only, because "special education" is defined in a way that includes related services. For all disabilities, the definition does not include a child whose educational needs are due primarily to unfamiliarity with the English language, environmental, cultural or economic factors.	Ed. L. §§4401(1), (2); 4410(1)(i)	Federal regulations provide that a student who only needs related services and not special education is not a child with a disability, except that a state may consider related services to be special education, as New York law does. Federal regulations impose limitations on eligibility determinations based on limited English proficiency for all disability categories.
Definition of special services or programs includes transportation as a special education service, transitional support services and related services.	Ed. L. §4401(2) 8 NYCRR §§200.1(ww); 200.1(ddd)	Federal requirements include transportation as a related service; does not reference transitional support services; and does not include related services as special education.
Definition of transition services includes integrated "competitive" employment.	Ed. L. §4401(9) 8 NYCRR §200.1(fff)	Federal requirements do not specify that integrated employment must be competitive integrated employment.
Referrals for special education evaluations may be made by a student’s parent, a professional staff member of the school district in which the student resides, or the public or private school the student legally attends, a licensed physician, a judicial officer, the commissioner or designee of a public agency or the pupil, if 18 or older or is an emancipated minor.	Ed. L. §4401-a(1) 8 NYCRR §§200.4(a)(1)(iii)-(vi); 200.5(b)(1)(i)(c)	Federal law states that either a parent of a child, or a State educational agency, other SEA or LEA may initiate a request for an initial evaluation to determine if the child is a child with a disability (20 USC §1414(a)(1)(B)).
The referral for an initial evaluation must include the reasons for referral and include any test results, records or reports upon which the referral is based, describe prereferral services provided or why no such attempts were made and describe the extent of parental contact or involvement prior to the referral.	Ed. L. §4401-a(2) 8 NYCRR §200.4(a)(2)	There is no federal requirement that specifies what must be included in a written referral.
A referral received by the building administrator must be forwarded to the CSE chairperson immediately upon its receipt by the administrator, or, if received by the committee chairperson, to the building administrator within 5 days Regulations establish procedures for the withdrawal of a referral for special education. If the BOE does not obtain parent consent for an initial evaluation within 30 days, it may pursue due process.	Ed. L. §4401-a(3) 8 NYCRR §§200.4(a)(3)- (5), 200.4(a)(7) - (9)	There are no federal requirements or timelines for forwarding the referral to a school administrator or procedures to withdraw a referral or timelines for obtaining consent from the parent from the date of the receipt of the referral.
Prereferral supports and services: Special education services and programs should be provided after the appropriateness of the resources of the general education program, including educationally related support services, speech and language improvement services and remedial instruction have been considered. Requires plan and policies for implementation of school-wide approaches and prereferral interventions.	Ed. L. §§4401-a(5); 3602(32) 8 NYCRR §200.2(b)(7)	There are no federal requirements for consideration of prereferral supports and services or for a plan or policies for implementation of school wide approaches and prereferral interventions.
A student determined ineligible for special education must be referred to the building administration for a determination of general education support services for that student.	Ed. L. §4401-a(6) 8 NYCRR §§200.4(d)(1)(i) and (iii); 100.1(q)	There are no federal requirements for consideration of general education support services when a student is determined ineligible for special education services.
IEP recommendations must be developed in meetings of the CSE.	Ed. L. §4402(1)(b)(2) 8 NYCRR §200.4(d)(4)(i)	IDEA allows the LEA and parent to agree to amend the IEP after the annual review without a meeting.
Requires school psychologist and additional parent member as members of the CSE. Requires a physician to be a member of the CSE if requested by the school or parent 3 days before the meeting. All members of the CSE must participate in meetings except that the parent can decline the participation of the additional parent member.	Ed. L. §4402(1)(b)(1) (a) and (b) 8 NYCRR §200.3(a)(1)	Federal law authorizes the parent and school to agree that the attendance of a CSE member is not necessary or that a CSE member could be excused from a meeting. Federal law and regulations do not require a school psychologist, additional parent member or physician.
Subcommittees on Special Education: School districts with more than 125,000 inhabitants must appoint subcommittees to the extent necessary to ensure timely evaluation and placement of students with disabilities. The school psychologist is a required member whenever a new psychological evaluation is reviewed or a change to a program option with a more intensive staff-to-student ratio is recommended. Subcommittees must submit an annual report to CSE. The parent has the right to disagree with subcommittee and refer to CSE.	Ed. L. §4402(1)(b)(1)(d) 8 NYCRR §200.3(c)	The subcommittee membership is the same as the federal mandated IEP team membership, with the exception of the requirements for participation of the school psychologist. Federal requirements allow the parent and LEA to agree that the participation of a member is not necessary or that a member may be excused.
The CSE must make a recommendation as to the appropriate programs and services. Any meeting to develop, review or revise the IEP must be conducted by the CSE or subcommittee thereof.	Ed. L. §4402(1)(b)(2) 8 NYCRR §200.4(f)	Federal law allows the parent and LEA to agree to amend the IEP after the annual review without a meeting.
Individual evaluation requires specific assessments to be conducted as part of the initial evaluation: physical examination, individual psychological evaluation, social history and functional behavioral assessment (FBA) required components of a student’s initial individual evaluation.	Ed. L. §4402(1)(b)(3)(a) 8 NYCRR §§200.1(r), (aa), (bb), (tt) and (ddd); 200.4(b)(1)(i) – (v); 200.16(c)	Federal requirements do not prescribe specific types of assessments that must be conducted as part of an initial evaluation except that a classroom observation is a federal requirement for students with specific learning disabilities. The terms psychological evaluation, social history and FBA are not defined in federal law or regulation.
Establishes the process for a school psychologist to determine the need to administer an individual psychological evaluation and requires a written report when such evaluation is determined not to be necessary.	Ed. L. §4402(1)(b)(3)(a) 8 NYCRR §200.4(b)(2)	There is no comparable federal requirement.
Specifies that the LEA representative who can reach agreement with the parent for reevaluations more frequently than once a year must be the LEA representative appointed to the CSE or CPSE. Requires a reevaluation at least every three years.	Ed. L. §4402(1)(b)(3)(d) 8 NYCRR §200.4(b)(4)	Federal law states that the LEA and the parent can reach agreement that a reevaluation is necessary more than once in a year and authorizes the parent and LEA to agree that the three-year reevaluation is not necessary.
The CSE/CPSE may recommend a placement in a school that uses psychotropic drugs only if such school has a written policy pertaining to such use and the parent is given the written policy at the time the recommendation is made.	Ed. L. §4402(1)(b)(3)(b) 8 NYCRR §200.5(a)(6)(v)	There is no comparable federal requirement.
The school must provide written prior notice to the parents of his/her opportunity to address the committee, either in person or in writing, on the appropriateness of the committee's recommendation on program placement to be made to the BOE or trustees.	Ed. L. §4402(1)(b)(3)(c)	There is no specific federal requirement for this notice to the parent.
When a child has been placed in a residential placement or is at risk of a residential placement, parents must be notified of when their child's right to FAPE will end.	Ed. L. §4402(1)(b)(3)(c)	There is no comparable federal requirement.
Requires the school district to provide a form to parents of certain children with disabilities who are veterans of the Vietnam war for a report to the Division of Veterans' Affairs for research purposes.	Ed. L. §4402(1)(b)(3)(h); Executive Law §353(14)	There is no comparable federal requirement.
Requires BOEs to have plans and policies for appropriate declassification of students with disabilities – regular consideration for declassifying students when appropriate and the provision of educational and support services upon declassification.	Ed. L. §4402(1)(b)(3)(d-2) 8 NYCRR §200.2(b)(8)	There is no comparable federal requirement.
For a child at risk of residential placement, the CSE must provide the parent with information about community support services, including an assessment of the family's community support service needs and the name and address of the agency that can perform the assessment.	Ed. L. §4402(1)(b)(4)(a)	There is no comparable federal requirement.
When a CSE determines that a child in foster care is at risk of a future placement in a residential school, the CSE must notify the local social services district responsible for the child.	Ed. L. §4402(1)(b)(4)(b)	There is no comparable federal requirement.
Procedures are established for CSEs when a child has been determined to be at risk of a future placement in a residential school, including inviting a representative from the appropriate county or State agency participate in CSE meetings concerning the appropriateness of residential placement and other programs and placement alternatives.	Ed. L. §§4402(1)(b)(4)(c) and (d); 4403(19) 8 NYCRR §§200.4(d)(4)(i)(b); 200.5(a)(6)(iii)	There is no comparable federal requirement.
Authorizes residential schools to provide transitional care to adults who were in residential schools prior to their 21st birthdays and requires the residential school to develop a transfer plan to facilitate the individual's transfer to an adult program.	Ed. L. §4402(1)(b)(4)(e) and (f)	There is no comparable federal requirement.
Establishes procedures and timelines for the CSE to provide written notice to the parents or guardian (or the student if the student is age 18 or older) who are in residential programs, receiving special education services 100% of the school day, receiving individualized attention or intervention because of intensive management needs or a severe disability and/or who may need adult services as determined by the CSE, to inform such students/parents that their eligibility for special education services will end and obtain consent to share information on the student with appropriate adult agencies. Requires the school district to forward information to the adult agencies and prepare an annual report to SED on all students with disabilities aging out or graduating.	Ed. L. §§4402(1)(b)(3) (c); 4402(5) 8 NYCRR §§200.4(i); 200.5(a)(6)(iii)	There are no comparable federal requirements.
Requires school districts to make periodic evaluations of programs, services and facilities for students with disabilities and report at least annually to the BOE.	Ed. L. §§4402(1)(b)(3)(e) and (f); 3602(10) 8 NYCRR §200.2(c)	States and LEAs are required to assure that students with disabilities receive FAPE, but there are no specific federal requirements relating to planning or self-evaluations by LEAs or for annual reports to the BOE.
Establishes timelines and procedures for transfer of information to adult agencies for students transitioning to adult services, including written notice to parents or student and the opportunity to consent to transfer information within 20 days.	Ed. L. §4402(1)(b)(5)	There is no comparable federal requirement.
The CSE/CPSE must provide a copy of the State's handbook for parents of students with disabilities or a locally approved handbook when a student is referred for special education.	Ed. L. §4402(1)(b)(7)	There is no comparable federal requirement.
Written consent of the parent is required prior to initial provision of special education services in a 12-month special service and/or program.	Ed. L. §4402(2)(a) 8 NYCRR §200.5(b)(1)(iii)	Federal regulations allow a State to require parental consent for other services and activities if it ensures that each public agency in the State establishes and implements effective procedures to ensure that a parent's refusal to consent does not result in a failure to provide the child with FAPE.
For students eligible for 12-month services, the IEP must identify the provider of services and for preschool students, the reason for such recommendation.	Ed. L. §4402(2)(a) 8 NYCRR §200.4(d)(2)(x)	Federal law does not require that IEPs include this specific information on providers of 12-month services.
Eligibility of students for 12-month special services and/or programs in accordance with their need to prevent substantial regression. Requires July/August programs to operate for at least 30 days.	Ed. L. §§4402(2)(a); 4403(17); 4410(5)(h) 8 NYCRR §§200.1(aaa); 200.1(eee); 200.6(j); 200.16(i)(3)(v)	Federal regulations require that extended school year be provided where necessary to provide FAPE, but do not contain a specific standard. Federal requirements are silent on the operation of 12-month programs.
Requires the school district to place students in private school programs only after consideration of public school options.	Ed. L. §4402(2)(b)(1) and (2)	Federal law and regulations require placement in the least restrictive environment.
The BOE must provide written notice of its determination if the BOE is inconsistent with the recommendation of the CSE. The notice must provide the reasons for the board's determination and identify the factors considered by the CSE in its evaluations.	Ed. L. §4402(2)(b)(2) 8 NYCRR §§200.2(d); 200.5(a)(6)(ii)	There are no federal requirements relating to notices from the BOE. Federal law and regulations require that parents receive prior written notice of a proposed action or refusal of an action relating to the provision of FAPE to their child.
If the BOE disagrees with the recommendation of the CSE, the BOE may remand the recommendation to the CSE or subcommittee or establish a second CSE or subcommittee to develop a new recommendation for the student.	Ed. L. §4402(2)(b)(2) 8 NYCRR §200.4(e)(2)	There is no comparable federal requirement.
If the board cannot secure an appropriate special service within the State or non-residential program to meet the needs of the student, it must notify the Commissioner.	Ed. L. §4402(2)(b)(3)	There is no comparable federal requirement.
A BOE (except NYC) may, upon written approval from the Commissioner, exceed the special class size standards for middle and secondary school special classes.	Ed. L. §4402(2)(d)(1) and (2) 8 NYCRR §§200.1(uu) 200.6(g)(6)	There are no federal requirements for special class sizes.
The total number of students assigned to a resource room teacher cannot exceed 20 students (with a variance for NYC) or 25 students for students in grades 7-12 or a multi-level middle school program operating on a period basis (with a variance for NYC).	Ed. L. §4403(3) 8NYCRR §200.6(f)(5)	There are no comparable federal requirements.
School districts must provide transportation up to 50 miles to and from a nonpublic school if a student with a disability has been identified by the CSE as receiving services or programs similar to special education programs recommended by the CSE. (Transportation only provision for private school students.)	Ed. L. §4402(4)(d)	There is no comparable federal requirement.
Allows a student with a disability to receive FAPE until the end of the school year in which the student turns age 21.	Ed. L. §4402(5)	Federal regulations require each State to ensure that all children with disabilities aged 3 through 21 residing in the State have a right to FAPE.
BOEs in a city school district with a population of 175,000 or more inhabitants (except for NYC) are permitted to increase class sizes in middle/secondary special classes. The authorization terminates on June 30^th of the school year. Districts must implement a study of attendance problems at the secondary level and implement a corrective action plan to increase the rate of attendance to at least the rate for students attending regular education classes in secondary schools of the district.	Ed. L. §4402(6) 8 NYCRR §200.6(g)(6)(iii)	There are no federal requirements for special class sizes.
Requires the BOE to establish administrative practices and procedures to provide copies of IEPs to teachers and providers before the implementation of the IEP. Chairperson must designate an individual as defined in statute to inform school personnel of IEP responsibilities.	Ed. L. §4402(7) (Chapter 408 of the Laws of 2002) 8 NYCRR §§200.1(xx); 200.2(b)(11); 200.4(e)(3)(i) and (ii)	Federal law requires each public agency to ensure that the child’s IEP is accessible to each regular education teacher, special education teacher, related service provider, and other service provider who is responsible for its implementation.
The Commissioner must establish standards and procedures for the protection of students with disabilities in approved private residential schools from abuse and maltreatment and must cooperate with other State agencies in resolving complaints and taking remedial actions.	Ed. L. §4403(11), (12) & (13) Social Services Law §483-d 8 NYCRR §200.15	Federal law does not address procedures for prevention and remediation of child abuse or maltreatment.
The Commissioner approves the provision of early intervention services by approved preschool providers.	Ed. L. §4403(18)	Federal law does not require the SEA to approve providers of early intervention services.
The Commissioner must identify school districts with high rates of identification of students with disabilities, low rates of declassification, high rates of placement of students with disabilities in separate sites and school districts with significant disproportionality based on race and ethnicity in such identification or placement in particular settings and provide technical assistance to develop effective strategies to improve such results.	Ed. L. §4403(21) and (22)	Section 618 of IDEA imposes very similar but not identical data reporting requirements on states, and states may be required to take remedial action under section 618(d) or section 616 of IDEA. States are not required to report on rates of declassification or identify districts with low rates of declassification.
IHOs are selected from a list through a rotational selection process. Definition of IHO requires IHOs to be attorneys and to have access to support and equipment. Prohibits an IHO from serving for two years following their term of employment in a school district, school or program serving students with disabilities placed there by a school district CSE. Requires the IHO not have participated in any manner in the formulation of the recommendation sought to be reviewed. Requires the IHO to complete a training program and updates. Regulations establish procedures to suspend/revoke IHO certification on the grounds of incompetence or misconduct.	Ed. L. §4404(1)(c) 8 NYCRR §§200.1(x); 200.2(b)(9); 200.2(e); 200.5(j)(3); and 200.21(a) §200.21(b)(1) - (5)	Although necessary to comply with federal requirements to implement 20 USC §1415, federal law and regulations do not specify the process for selecting an IHO. §1415(f)(2)(a) and 34 CFR §300.508 require that the IHO not be an employee of the SEA or LEA involved in the education or care of the child or be a person who has a personal or professional interest that conflicts with the person’s objectivity in the hearing, possess the knowledge and ability to conduct hearings in accordance with appropriate, standard legal practice and ability to render and write decisions in accordance with appropriate, standard legal practice. There are no federal requirements that a State set maximum rates for IHOs or specific federal requirements for the suspension of an IHO.
Two-year statute of limitations on commencement of an impartial hearing.	Ed. L. §4404(1)	Federal law applies a two-year statute of limitation, except where the State prescribes an explicit time limitation for requesting a hearing.
Procedures for review of the decision of an IHO.	Ed. L. §§ 4404(2); 4410(7)(d) 8 NYCRR §§200.5(k); 200.16 (h)(9-10); Part 279	Although necessary to comply with 20 USC §1415(g), federal law does not prescribe specific procedures for the State-level review of the IHO's decision.
Four-month statute of limitations for judicial review under Article 4 of the Civil Practice Law and Rules (CPLR).	Ed. L. §4404(3)(b); CPLR §217(1)	Federal law provides for a 90-day statute of limitations unless the State has an explicit time limitation.
The CSE or CPSE must immediately amend the student's IEP to be consistent with a mediation agreement.	Ed. L.§4404-a (5) 8 NYCRR §200.5(h)(3)	There is no comparable federal requirement.
Reimbursement of costs of tuition and maintenance for students attending an approved private school for students with disabilities, a special act school district or the State-operated schools for the deaf and blind.	Ed. L. §§4405, 4401 (3), (5) Social Services Law §153(10) 8 NYCRR §§200.9; 200.10	Federal law does not require that states set tuition or maintenance rates for schools and leaves it to the states to assign fiscal responsibility for special education programs and services among school districts and other public agencies.
State aid formula for the computation of State private excess cost aid.	Ed. L. §§4405(3); 4401 (6) and (7); Chapter 53 of the Laws of 2005	Federal law does not prescribe formulas for computing State aid for services to students with disabilities.
With approval of SED, school districts may contract with educational facilities located outside of the state where there are no appropriate public or private facilities for instruction of the student because of the student's unusual type of disability or combination of disabilities.	Ed. L. §4407(1)	Federal law does not establish a specific standard for out-of-state placements of students with disabilities.
SED must maintain a register of approved

State Requirement

Citation

How State Requirement is Different from Federal Requirement

BOCES required to submit special education space requirements plans by 2/1 of every 5^th year. Requirements for development, content, submission, approval of the plan, amendments to the plan and an annual progress report.

Ed. L. §1950(17)

8 NYCRR §200.2(g)

Federal law does not specify how a state must ensure space in facilities to meet the needs of students with disabilities and least restrictive environment responsibilities.

The school district of residence is the LEA and develops the IEP for charter school students.

Ed. L. §2853(4)

Federal law leaves it to the states to decide whether charter schools are LEAs or are schools of a school district.

School districts must have an approved plan for the use of State public excess cost aid in the most educationally advantageous manner.

Ed. L.§3602(10)(a)

Federal law does not impose planning requirements relating to the use of State aid.

School districts submit an approved plan of service every two years as a condition of receipt of State public excess cost aid.

Ed. L. §3602(10)(b)

Federal law does not impose planning requirements relating to the use of State aid.

State aid formulas for the computation of State public excess cost aid.

Ed. L.
§§3602(1) & (19); Chapter 53 of the Laws of 2005

Federal law does not prescribe formulas for computing State aid for services to students with disabilities.

Minimum periods of instruction or services to qualify for weightings that generate additional state public excess cost aid (e.g., 20% or more of the school week in a resource room or receiving special services or programs; 60% or more of the school day in a special class or an integrated setting).

Ed. L. §3602 (19)(b); Chapter 53 of the Laws of 2005

Federal law does not prescribe formulas for computing State aid for services to students with disabilities.

Students with disabilities who are residents of the State attending nonpublic schools located in the State are dually enrolled in the public schools for purposes of special education and receive services pursuant to an IEP developed by the CSE of the student's school district of residence. Parents must request special education services before June 1 preceding the school year for which the request is made subject to certain exceptions.

Ed. L. §3602-c (2)(a)

Federal law requires that the school district in which the nonpublic school is located uses a proportionate share of its IDEA funds to provide services to nonpublic school students, based on consultation with nonpublic school representatives. Districts develop an individualized service plan (ISP) for a student that does not create an individual right to services.

A parent of a student attending a nonpublic school may bring an impartial hearing to challenge their child’s IEP.

Ed. L. §3602-c (2)(a)

Nonpublic school students do not have an individual right to services under IDEA and therefore are not entitled to a due process hearing.

School district in which the nonpublic school is located refers a nonpublic school student suspected of having a disability to the CSE of the child's school district of residence for evaluation.

Ed. L. §3602-c(2-a)

Federal law imposes child find requirement on the school district of location and does not require referral to the school district of residence to conduct the evaluation.

School district of location serving a nonpublic school student recovers tuition from the school district of residence of the student, exclusive of costs paid by district of location using federal or State funds.

Ed. L. §3602-c(7)

Federal law does not address the recovery of tuition costs incurred by the school district in which the nonpublic school is located for nonresident students, where the services required under State law exceed the federal minimum and require a substantial State and local contribution.

Establishes a timeline of 42 days of the date of receipt of a request by a CSE for evaluative information for the CSE to provide such information and recommendation to the requesting agency. Establishes procedures for the CSE receiving such a request to obtain parental consent for the evaluation to develop a written recommendation.

Ed. L. §4005(1)

8 NYCRR §200.4(h)

There are no comparable federal requirements.

Reimbursement of costs of tuition and maintenance for students attending a State-supported school for the deaf or blind.

Ed. L. §§4204,4207, 4204-b, 4211

Federal law does not require that states set tuition or maintenance rates for schools and leaves it to the states to assign fiscal responsibility for special education programs and services among school districts and other public agencies.

Deaf infant definition includes infants who are unable to respond to sounds presented at intensities of 60 decibels sound pressure level.

Ed. L. §4204(a)

8 NYCRR §200.7 (d)(7)(i)(a)

The federal definition of deaf infant does not include a decibel sound pressure standard.

Admission to State-operated schools for the blind and deaf through appointment by the Commissioner.

Ed. L. §§4308(1)–(2)(a); 4351–4355 (a)(2)

8 NYCRR §200.7(d)(1)

There are no federal requirements regarding appointment to State operated schools.

Requires school psychologist and additional parent member as members of the multidisciplinary team (MDT) at the State-operated schools. Requires a physician to be a member of the MDT if requested by the school or parent 3 days before the meeting.

All members of the MDT must participate in meetings except that the parent can decline the participation of the additional parent member.

Additional MDT members may be appointed by school district of residence.

Ed. L. §§4308(2)(b) -(e); 4355(2)(b)- (e)

8 NYCRR §200.7(d)(1)

Federal law authorizes the parent and school to agree that the attendance of a CSE member is not necessary or that a CSE member could be excused from a meeting. Federal law and regulations do not require a school psychologist, additional parent member or physician.

34 CFR §300.554 requires the SEA to ensure that the least restrictive environment requirements in §300.550 are effectively implemented for children in public or private institutions.

The definition of student with a disability includes a student with a disability who requires related services only, because "special education" is defined in a way that includes related services.

For all disabilities, the definition does not include a child whose educational needs are due primarily to unfamiliarity with the English language, environmental, cultural or economic factors.

Ed. L. §§4401(1), (2); 4410(1)(i)

Federal regulations provide that a student who only needs related services and not special education is not a child with a disability, except that a state may consider related services to be special education, as New York law does. Federal regulations impose limitations on eligibility determinations based on limited English proficiency for all disability categories.

Definition of special services or programs includes transportation as a special education service, transitional support services and related services.

Ed. L. §4401(2)

8 NYCRR §§200.1(ww); 200.1(ddd)

Federal requirements include transportation as a related service; does not reference transitional support services; and does not include related services as special education.

Definition of transition services includes integrated "competitive" employment.

Ed. L. §4401(9)

8 NYCRR §200.1(fff)

Federal requirements do not specify that integrated employment must be competitive integrated employment.

Referrals for special education evaluations may be made by a student’s parent, a professional staff member of the school district in which the student resides, or the public or private school the student legally attends, a licensed physician, a judicial officer, the commissioner or designee of a public agency or the pupil, if 18 or older or is an emancipated minor.

Ed. L. §4401-a(1)

8 NYCRR §§200.4(a)(1)(iii)-(vi); 200.5(b)(1)(i)(c)

Federal law states that either a parent of a child, or a State educational agency, other SEA or LEA may initiate a request for an initial evaluation to determine if the child is a child with a disability (20 USC §1414(a)(1)(B)).

The referral for an initial evaluation must include the reasons for referral and include any test results, records or reports upon which the referral is based, describe prereferral services provided or why no such attempts were made and describe the extent of parental contact or involvement prior to the referral.

Ed. L. §4401-a(2)

8 NYCRR §200.4(a)(2)

There is no federal requirement that specifies what must be included in a written referral.

A referral received by the building administrator must be forwarded to the CSE chairperson immediately upon its receipt by the administrator, or, if received by the committee chairperson, to the building administrator within 5 days

Regulations establish procedures for the withdrawal of a referral for special education.

If the BOE does not obtain parent consent for an initial evaluation within 30 days, it may pursue due process.

Ed. L. §4401-a(3)

8 NYCRR §§200.4(a)(3)- (5), 200.4(a)(7) - (9)

There are no federal requirements or timelines for forwarding the referral to a school administrator or procedures to withdraw a referral or timelines for obtaining consent from the parent from the date of the receipt of the referral.

Prereferral supports and services: Special education services and programs should be provided after the appropriateness of the resources of the general education program, including educationally related support services, speech and language improvement services and remedial instruction have been considered.

Requires plan and policies for implementation of school-wide approaches and prereferral interventions.

Ed. L. §§4401-a(5); 3602(32)

8 NYCRR §200.2(b)(7)

There are no federal requirements for consideration of prereferral supports and services or for a plan or policies for implementation of school wide approaches and prereferral interventions.

A student determined ineligible for special education must be referred to the building administration for a determination of general education support services for that student.

Ed. L. §4401-a(6)

8 NYCRR §§200.4(d)(1)(i) and (iii); 100.1(q)

There are no federal requirements for consideration of general education support services when a student is determined ineligible for special education services.

IEP recommendations must be developed in meetings of the CSE.

Ed. L. §4402(1)(b)(2)

8 NYCRR §200.4(d)(4)(i)

IDEA allows the LEA and parent to agree to amend the IEP after the annual review without a meeting.

Requires school psychologist and additional parent member as members of the CSE. Requires a physician to be a member of the CSE if requested by the school or parent 3 days before the meeting.

All members of the CSE must participate in meetings except that the parent can decline the participation of the additional parent member.

Ed. L. §4402(1)(b)(1) (a) and (b)

8 NYCRR §200.3(a)(1)

Subcommittees on Special Education: School districts with more than 125,000 inhabitants must appoint subcommittees to the extent necessary to ensure timely evaluation and placement of students with disabilities. The school psychologist is a required member whenever a new psychological evaluation is reviewed or a change to a program option with a more intensive staff-to-student ratio is recommended.

Subcommittees must submit an annual report to CSE. The parent has the right to disagree with subcommittee and refer to CSE.

Ed. L. §4402(1)(b)(1)(d)

8 NYCRR §200.3(c)

The subcommittee membership is the same as the federal mandated IEP team membership, with the exception of the requirements for participation of the school psychologist. Federal requirements allow the parent and LEA to agree that the participation of a member is not necessary or that a member may be excused.

The CSE must make a recommendation as to the appropriate programs and services. Any meeting to develop, review or revise the IEP must be conducted by the CSE or subcommittee thereof.

Ed. L. §4402(1)(b)(2)

8 NYCRR §200.4(f)

Federal law allows the parent and LEA to agree to amend the IEP after the annual review without a meeting.

Individual evaluation requires specific assessments to be conducted as part of the initial evaluation: physical examination, individual psychological evaluation, social history and functional behavioral assessment (FBA) required components of a student’s initial individual evaluation.

Ed. L. §4402(1)(b)(3)(a)

8 NYCRR §§200.1(r), (aa), (bb), (tt) and (ddd); 200.4(b)(1)(i) – (v); 200.16(c)

Federal requirements do not prescribe specific types of assessments that must be conducted as part of an initial evaluation except that a classroom observation is a federal requirement for students with specific learning disabilities. The terms psychological evaluation, social history and FBA are not defined in federal law or regulation.

Establishes the process for a school psychologist to determine the need to administer an individual psychological evaluation and requires a written report when such evaluation is determined not to be necessary.

Ed. L. §4402(1)(b)(3)(a)

8 NYCRR §200.4(b)(2)

There is no comparable federal requirement.

Specifies that the LEA representative who can reach agreement with the parent for reevaluations more frequently than once a year must be the LEA representative appointed to the CSE or CPSE. Requires a reevaluation at least every three years.

Ed. L. §4402(1)(b)(3)(d)

8 NYCRR §200.4(b)(4)

Federal law states that the LEA and the parent can reach agreement that a reevaluation is necessary more than once in a year and authorizes the parent and LEA to agree that the three-year reevaluation is not necessary.

The CSE/CPSE may recommend a placement in a school that uses psychotropic drugs only if such school has a written policy pertaining to such use and the parent is given the written policy at the time the recommendation is made.

Ed. L. §4402(1)(b)(3)(b)

8 NYCRR §200.5(a)(6)(v)

There is no comparable federal requirement.

The school must provide written prior notice to the parents of his/her opportunity to address the committee, either in person or in writing, on the appropriateness of the committee's recommendation on program placement to be made to the BOE or trustees.

Ed. L. §4402(1)(b)(3)(c)

There is no specific federal requirement for this notice to the parent.

When a child has been placed in a residential placement or is at risk of a residential placement, parents must be notified of when their child's right to FAPE will end.

Ed. L. §4402(1)(b)(3)(c)

There is no comparable federal requirement.

Requires the school district to provide a form to parents of certain children with disabilities who are veterans of the Vietnam war for a report to the Division of Veterans' Affairs for research purposes.

Ed. L. §4402(1)(b)(3)(h);

Executive Law §353(14)

There is no comparable federal requirement.

Requires BOEs to have plans and policies for appropriate declassification of students with disabilities – regular consideration for declassifying students when appropriate and the provision of educational and support services upon declassification.

Ed. L. §4402(1)(b)(3)(d-2)

8 NYCRR §200.2(b)(8)

There is no comparable federal requirement.

For a child at risk of residential placement, the CSE must provide the parent with information about community support services, including an assessment of the family's community support service needs and the name and address of the agency that can perform the assessment.

Ed. L. §4402(1)(b)(4)(a)

There is no comparable federal requirement.

When a CSE determines that a child in foster care is at risk of a future placement in a residential school, the CSE must notify the local social services district responsible for the child.

Ed. L. §4402(1)(b)(4)(b)

There is no comparable federal requirement.

Procedures are established for CSEs when a child has been determined to be at risk of a future placement in a residential school, including inviting a representative from the appropriate county or State agency participate in CSE meetings concerning the appropriateness of residential placement and other programs and placement alternatives.

Ed. L. §§4402(1)(b)(4)(c) and (d); 4403(19)

8 NYCRR §§200.4(d)(4)(i)(b); 200.5(a)(6)(iii)

There is no comparable federal requirement.

Authorizes residential schools to provide transitional care to adults who were in residential schools prior to their 21st birthdays and requires the residential school to develop a transfer plan to facilitate the individual's transfer to an adult program.

Ed. L. §4402(1)(b)(4)(e) and (f)

There is no comparable federal requirement.

Establishes procedures and timelines for the CSE to provide written notice to the parents or guardian (or the student if the student is age 18 or older) who are in residential programs, receiving special education services 100% of the school day, receiving individualized attention or intervention because of intensive management needs or a severe disability and/or who may need adult services as determined by the CSE, to inform such students/parents that their eligibility for special education services will end and obtain consent to share information on the student with appropriate adult agencies. Requires the school district to forward information to the adult agencies and prepare an annual report to SED on all students with disabilities aging out or graduating.

Ed. L.
§§4402(1)(b)(3) (c); 4402(5)

8 NYCRR §§200.4(i); 200.5(a)(6)(iii)

There are no comparable federal requirements.

Requires school districts to make periodic evaluations of programs, services and facilities for students with disabilities and report at least annually to the BOE.

Ed. L. §§4402(1)(b)(3)(e) and (f); 3602(10)

8 NYCRR §200.2(c)

States and LEAs are required to assure that students with disabilities receive FAPE, but there are no specific federal requirements relating to planning or self-evaluations by LEAs or for annual reports to the BOE.

Establishes timelines and procedures for transfer of information to adult agencies for students transitioning to adult services, including written notice to parents or student and the opportunity to consent to transfer information within 20 days.

Ed. L.
§4402(1)(b)(5)

There is no comparable federal requirement.

The CSE/CPSE must provide a copy of the State's handbook for parents of students with disabilities or a locally approved handbook when a student is referred for special education.

Ed. L.
§4402(1)(b)(7)

There is no comparable federal requirement.

Written consent of the parent is required prior to initial provision of special education services in a 12-month special service and/or program.

Ed. L. §4402(2)(a)

8 NYCRR
§200.5(b)(1)(iii)

Federal regulations allow a State to require parental consent for other services and activities if it ensures that each public agency in the State establishes and implements effective procedures to ensure that a parent's refusal to consent does not result in a failure to provide the child with FAPE.

For students eligible for 12-month services, the IEP must identify the provider of services and for preschool students, the reason for such recommendation.

Ed. L. §4402(2)(a)

8 NYCRR §200.4(d)(2)(x)

Federal law does not require that IEPs include this specific information on providers of 12-month services.

Eligibility of students for 12-month special services and/or programs in accordance with their need to prevent substantial regression. Requires July/August programs to operate for at least 30 days.

Ed. L. §§4402(2)(a); 4403(17); 4410(5)(h)

8 NYCRR §§200.1(aaa); 200.1(eee); 200.6(j); 200.16(i)(3)(v)

Federal regulations require that extended school year be provided where necessary to provide FAPE, but do not contain a specific standard. Federal requirements are silent on the operation of 12-month programs.

Requires the school district to place students in private school programs only after consideration of public school options.

Ed. L.
§4402(2)(b)(1) and (2)

Federal law and regulations require placement in the least restrictive environment.

The BOE must provide written notice of its determination if the BOE is inconsistent with the recommendation of the CSE. The notice must provide the reasons for the board's determination and identify the factors considered by the CSE in its evaluations.

Ed. L. §4402(2)(b)(2)

8 NYCRR §§200.2(d); 200.5(a)(6)(ii)

There are no federal requirements relating to notices from the BOE. Federal law and regulations require that parents receive prior written notice of a proposed action or refusal of an action relating to the provision of FAPE to their child.

If the BOE disagrees with the recommendation of the CSE, the BOE may remand the recommendation to the CSE or subcommittee or establish a second CSE or subcommittee to develop a new recommendation for the student.

Ed. L. §4402(2)(b)(2)

8 NYCRR §200.4(e)(2)

There is no comparable federal requirement.

If the board cannot secure an appropriate special service within the State or non-residential program to meet the needs of the student, it must notify the Commissioner.

Ed. L. §4402(2)(b)(3)

There is no comparable federal requirement.

A BOE (except NYC) may, upon written approval from the Commissioner, exceed the special class size standards for middle and secondary school special classes.

Ed. L. §4402(2)(d)(1) and (2)

8 NYCRR §§200.1(uu) 200.6(g)(6)

There are no federal requirements for special class sizes.

The total number of students assigned to a resource room teacher cannot exceed 20 students (with a variance for NYC) or 25 students for students in grades 7-12 or a multi-level middle school program operating on a period basis (with a variance for NYC).

Ed. L. §4403(3)

8NYCRR §200.6(f)(5)

There are no comparable federal requirements.

School districts must provide transportation up to 50 miles to and from a nonpublic school if a student with a disability has been identified by the CSE as receiving services or programs similar to special education programs recommended by the CSE. (Transportation only provision for private school students.)

Ed. L. §4402(4)(d)

There is no comparable federal requirement.

Allows a student with a disability to receive FAPE until the end of the school year in which the student turns age 21.

Ed. L. §4402(5)

Federal regulations require each State to ensure that all children with disabilities aged 3 through 21 residing in the State have a right to FAPE.

BOEs in a city school district with a population of 175,000 or more inhabitants (except for NYC) are permitted to increase class sizes in middle/secondary special classes. The authorization terminates on June 30^th of the school year. Districts must implement a study of attendance problems at the secondary level and implement a corrective action plan to increase the rate of attendance to at least the rate for students attending regular education classes in secondary schools of the district.

Ed. L. §4402(6)

8 NYCRR §200.6(g)(6)(iii)

There are no federal requirements for special class sizes.

Requires the BOE to establish administrative practices and procedures to provide copies of IEPs to teachers and providers before the implementation of the IEP. Chairperson must designate an individual as defined in statute to inform school personnel of IEP responsibilities.

Ed. L. §4402(7)
(Chapter 408 of the Laws of 2002)

8 NYCRR §§200.1(xx); 200.2(b)(11); 200.4(e)(3)(i) and (ii)

Federal law requires each public agency to ensure that the child’s IEP is accessible to each regular education teacher, special education teacher, related service provider, and other service provider who is responsible for its implementation.

The Commissioner must establish standards and procedures for the protection of students with disabilities in approved private residential schools from abuse and maltreatment and must cooperate with other State agencies in resolving complaints and taking remedial actions.

Ed. L. §4403(11), (12) & (13)

Social Services Law §483-d

8 NYCRR §200.15

Federal law does not address procedures for prevention and remediation of child abuse or maltreatment.

The Commissioner approves the provision of early intervention services by approved preschool providers.

Ed. L. §4403(18)

Federal law does not require the SEA to approve providers of early intervention services.

The Commissioner must identify school districts with high rates of identification of students with disabilities, low rates of declassification, high rates of placement of students with disabilities in separate sites and school districts with significant disproportionality based on race and ethnicity in such identification or placement in particular settings and provide technical assistance to develop effective strategies to improve such results.

Ed. L. §4403(21) and (22)

Section 618 of IDEA imposes very similar but not identical data reporting requirements on states, and states may be required to take remedial action under section 618(d) or section 616 of IDEA. States are not required to report on rates of declassification or identify districts with low rates of declassification.

IHOs are selected from a list through a rotational selection process. Definition of IHO requires IHOs to be attorneys and to have access to support and equipment. Prohibits an IHO from serving for two years following their term of employment in a school district, school or program serving students with disabilities placed there by a school district CSE. Requires the IHO not have participated in any manner in the formulation of the recommendation sought to be reviewed. Requires the IHO to complete a training program and updates. Regulations establish procedures to suspend/revoke IHO certification on the grounds of incompetence or misconduct.

Ed. L. §4404(1)(c)

8 NYCRR §§200.1(x); 200.2(b)(9); 200.2(e); 200.5(j)(3); and 200.21(a)
§200.21(b)(1) - (5)

Although necessary to comply with federal requirements to implement 20 USC §1415, federal law and regulations do not specify the process for selecting an IHO. §1415(f)(2)(a) and 34 CFR §300.508 require that the IHO not be an employee of the SEA or LEA involved in the education or care of the child or be a person who has a personal or professional interest that conflicts with the person’s objectivity in the hearing, possess the knowledge and ability to conduct hearings in accordance with appropriate, standard legal practice and ability to render and write decisions in accordance with appropriate, standard legal practice. There are no federal requirements that a State set maximum rates for IHOs or specific federal requirements for the suspension of an IHO.

Two-year statute of limitations on commencement of an impartial hearing.

Ed. L. §4404(1)

Federal law applies a two-year statute of limitation, except where the State prescribes an explicit time limitation for requesting a hearing.

Procedures for review of the decision of an IHO.

Ed. L. §§ 4404(2); 4410(7)(d)

8 NYCRR §§200.5(k); 200.16 (h)(9-10);
Part 279

Although necessary to comply with 20 USC §1415(g), federal law does not prescribe specific procedures for the State-level review of the IHO's decision.

Four-month statute of limitations for judicial review under Article 4 of the Civil Practice Law and Rules (CPLR).

Ed. L. §4404(3)(b); CPLR §217(1)

Federal law provides for a 90-day statute of limitations unless the State has an explicit time limitation.

The CSE or CPSE must immediately amend the student's IEP to be consistent with a mediation agreement.

Ed. L.§4404-a (5)

8 NYCRR §200.5(h)(3)

There is no comparable federal requirement.

Reimbursement of costs of tuition and maintenance for students attending an approved private school for students with disabilities, a special act school district or the State-operated schools for the deaf and blind.

Ed. L. §§4405, 4401 (3), (5)

Social Services Law §153(10)

8 NYCRR
§§200.9; 200.10

State aid formula for the computation of State private excess cost aid.

Ed. L. §§4405(3); 4401 (6) and (7); Chapter 53 of the Laws of 2005

Federal law does not prescribe formulas for computing State aid for services to students with disabilities.

With approval of SED, school districts may contract with educational facilities located outside of the state where there are no appropriate public or private facilities for instruction of the student because of the student's unusual type of disability or combination of disabilities.

Ed. L. §4407(1)

Federal law does not establish a specific standard for out-of-state placements of students with disabilities.

SED must maintain a register of approved

TO:	District Superintendents
	Superintendent of Schools
	Presidents of Boards of Education
	Superintendents of State-Operated and State-Supported Schools
	Executive Directors of Approved Private Schools
	New York City Board of Education
	Executive Directors of Approved Preschool Programs
	Organizations, Parents and Individuals Concerned with Special Education
	Commissioner's Advisory Panel for Special Education Services
	SETRC Project Directors and Professional Development Specialists
	Other State Agencies

From:	James P. DeLorenzo

Subject:	New York State Laws and Regulations that Differ from Federal Requirements