AMENDMENT OF THE
REGULATIONS OF THE COMMISSIONER OF EDUCATION
Available in PDF format for printing
Underlined language is new language. Bracketed [ ] language is language to be repealed.
Pursuant to Education Law sections 207, 3208, 3209, 3214, 3602-c, 3713, 4002, 4308, 4355, 4401, 4402, 4403, 4404, 4404-a and 4410
1. Subdivision (ii) is added to section 100.2 of the Regulations of the Commissioner of Education, effective July 1, 2007, as follows:
(ii) Response to intervention programs. (1) A school district’s process to determine if a student responds to scientific, research-based instruction shall include the following minimum requirements:
(i) appropriate
instruction delivered to all students in the general education class by
qualified personnel;
(a) appropriate
instruction in reading shall mean scientific research- based reading programs
that include explicit and systematic instruction in phonemic awareness,
phonics, vocabulary development, reading fluency (including oral reading
skills) and reading comprehension strategies;
(ii) screenings
applied to all students in the class to identify those students who are
not making academic progress at expected rates;
(iii) 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
to meet age or grade level standards;
(iv) repeated assessments of student achievement which should include curriculum based measures to determine if interventions are resulting in student progress toward age or grade level standards;
(v) the
application of information about the student’s response to intervention
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
(vi) 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:
(a) the
amount and nature of student performance data that will be collected and
the general education services that will be provided pursuant to paragraph
(2) of this subdivision;
(b) strategies
for increasing the student’s rate of learning; and
(c) the
parents’ right to request an evaluation for special education programs
and/or services.
(2) A
school district shall select and
define the specific structure and components of the response
to intervention program, including, but not limited to, the criteria for
determining the levels of intervention to be provided to students, the
types of interventions, the amount and nature of student performance data
to be collected and the manner and frequency for progress monitoring.
(3) A
school district shall take appropriate steps to ensure that staff have
the knowledge and skills necessary to implement a response to intervention
program and that such program is implemented consistent with paragraph
(2) of this subdivision.
2. Subdivision
(a) of section 120.6 of the Regulations of the Commissioner of Education
is amended, effective July 1, 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), (ss), (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 1, 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.
(ss) School
health services means [nursing] school nurse services provided by
a qualified school nurse or other health services provided by a qualified
person designed to enable a student with a disability to receive a free appropriate
public education as described in the individualized education program of
the student.
(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 (CART), 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 1, 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] 2006 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 pre-referral 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; (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 district-wide assessments; [and]
(14) that [identifies] identify how
the district, to the extent feasible, will use universal design principles
in developing and administering any district-wide 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.
(c) . . .
(d) . . .
(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 1, 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 1, 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. The school district must initiate
a referral and promptly request parental consent to evaluate the student
to determine if the student needs special education services and programs
if a student has not made adequate progress after an appropriate period of
time when provided instruction as described in section 100.2(ii) of this
Title.
(1)
. . .
(2)
. . .
(3)
. . .
(4)
. . .
(5)
. . .
(6)
. . .
(7)
. . .
(8)
[In] Except as otherwise provided in section 200.5(b)(6) of this Part, 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, including, but not limited to,
telephone calls made or attempted and the results of those calls and correspondence
sent to the parents and any responses received, 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. The individual evaluation shall be completed within 60
days of receipt of consent unless extended by mutual agreement of the student’s
parents and the CSE pursuant to sections 200.4(b)(7)(i) and 200.4(j)(1) of
this Part.
The individual evaluation [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) . . .
(iii)
[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)
[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) . . .
(vi) . . .
(vii) . . .
(viii) . . .
(ix) . . .
(x) . . .
(xi) .
. .
(xii)
. . .
(xiii)
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)
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)
the procedures for conducting expedited evaluations are conducted pursuant
to [Part 201] section 201.6 of this Title;
(xvi)
. . .
(xvii)
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 January 1, 2009, 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 district-wide 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) A
student suspected of having a learning disability as defined in section
200.1(zz)(6) of this Part must receive an individual evaluation that includes
a variety of assessment tools and strategies pursuant to subdivision (b)
of this section. The CSE may not rely on any single procedure as the sole
criterion for determining whether a student has a learning disability.
The individual evaluation shall be completed within 60 days of receipt
of consent, unless extended by mutual agreement of the student’s parent
and the CSE. (i) The
individual evaluation must include information from an observation of the
student in routine classroom instruction and monitoring of the student’s
performance that was either done before the student was referred for an
evaluation or from 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 (2) of this subdivision.
(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, as part of the evaluation procedures pursuant
to section 200.4(b) and (c) of this Part, consider,
(a) data
that demonstrate that prior to, or as 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.
(2) The
determination of eligibility for special education for a student suspected
of having a learning disability must be made by 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),
(3) A
student may be determined to have a learning disability if, when provided
with learning experiences and instruction appropriate for the student’s
age or State-approved grade-level standards, 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: oral expression, listening
comprehension, written expression, basic reading skills, reading fluency
skills, reading comprehension, mathematics calculation, mathematics problem
solving; and
(i) The
student either
(a) does
not make sufficient progress to meet age or State-approved grade-level
standards in one or more of the areas identified in this paragraph when
using a process based on the student’s response to scientific, research-based
intervention pursuant to section 100.2(ii) of this Title; or
(b) 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 CSE to be relevant to the identification
of a learning disability, using appropriate assessments consistent with
section 200.4(b) of this Part; and
(ii) The
CSE determines that its findings under this paragraph are not primarily
the result of a visual, hearing, or motor disability; mental retardation;
emotional disturbance; cultural factors; environmental or economic disadvantage;
or limited English proficiency.
(4) In
addition to the criteria in paragraph (3) of this subdivision, the CSE
is not prohibited from considering whether there is 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 effective on and after July 1, 2012, a school
district shall not use the severe discrepancy criteria to determine that
a student in kindergarten through grade four has a learning disability
in the area of reading.
(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 (3) of this subdivision:
(1) the
student does not achieve adequately for the student’s age or to meet State-approved
grade-level standards; and
(2) the
student
(i) does
not make sufficient progress to meet age or State-approved grade-level
standards; or
(ii) 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 pursuant to section 100.2(ii)
of this Title:
(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)(1)(vi) 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 the member’s conclusions.
7. Section
200.5 of the Regulations of the Commissioner of Education is amended, effective
July 1, 2007, as follows:
(a) Prior
written notice (notice of recommendation) and other written notifications. (1) Prior
written notice (notice of recommendation) that meets the requirements
of section 200.1(oo) of this Part must be given to the parents of a student
with a disability a reasonable time before the school district proposes to
or refuses to initiate or change the identification, evaluation, educational
placement of the student or the provision of a free appropriate public education
to the student. Effective, January 1, 2009 the prior written notice
shall be on the form prescribed by the Commissioner.
(2)
. . .
(3)
The prior written notice must include:
(i) . . .
(ii) . . .
(iii) a description of [any] other options that
the [district] CSE considered and the reasons why those options were
rejected;
(iv) a description of each evaluation procedure,
[test] assessment, record, or report the [district] CSE used
as a basis for the proposed or refused action;
(v)
a description of [the] other factors that are relevant to the [district’s] CSE’s proposal
or refusal;
(vi) a statement that the parents of a student
with a disability have protection under the procedural safeguards of this Part,
and, if this notice is not an initial referral for an evaluation, the
means by which a copy of a description of the procedural safeguards can be
obtained; and
(vii) . . .
(4)
. . .
(5)
. . .
(6)
Other required notifications. A parent of a student with a disability
shall also be provided written notification as follows:
(i) . . .
(ii) . . .
(iii) For students described in section [200.4(h)(1)] 200.4(i)(1),
notice must be provided to the parent and, beginning at age 18 to the student,
in accordance with section [200.4(h)(2) and (3)] 200.4(i)(2) and (3) of
this Part.
(iv) . . .
(v)
. . .
(7)
. . .
(b) Consent.
(1) The school district must make reasonable efforts to obtain written
informed consent of the parent, as such term is defined in section 200.1(l)
of this Part, and must have a detailed record of its attempts, and the results
of those attempts. Written consent of the parent [, defined in
section 200.1(l) of this Part,] is required:
(i) prior to conducting an initial evaluation
or reevaluation, except that:
(a)
. . .
(b)
parental consent need not be obtained for a reevaluation if the school district
can demonstrate that it has [taken] made reasonable [measures] efforts to
obtain that consent, and the student’s parents failed to respond;
[(1)
the school district must have a record of its attempts to obtain parental consent;]
(c) in
the event the parent of the student to be evaluated does not grant consent
for an initial evaluation, such parent shall be informed by the committee chairperson
that, upon request, the parent will be given an opportunity to attend an informal
conference with the committee or designated professionals most familiar with
the proposed evaluation, the person who referred the student for such an evaluation,
and counsel or an advisor of the parent’s
choice, at which time the parent shall be afforded an opportunity to ask
questions regarding the proposed evaluation. If at this meeting the
parent and the person initiating the referral agree in writing that the
referral is not warranted, the referral shall be withdrawn. Except in the
case of a preschool child, a student who is home instructed pursuant
to section 100.10 of this Title or a student placed in a private school
by the parents at their own expense, if the parent does not request
or attend such a conference, or continues to withhold consent for evaluation
otherwise required for a period of 30 days after the date of receipt of
a referral, the board of education may pursue the initial evaluation of
the student by utilizing the due process procedures described in this section;
(ii) . . .
(iii) . . .
(iv) prior to releasing any personally identifiable
information as described in subdivision (e) of this section, in accordance
with sections 200.2(b)(6) and [200.4(g)] 200.4(h) of this Part;
(v)
prior to each time the school district [proposes to access] accesses a
parent’s private or public insurance proceeds in accordance with
the requirements of 34 C.F.R. sections 300.154(d)(2)(iv)(A) and (e)(1) and
(e)(2)(i) (Code of Federal Regulations, 2006 edition, title 34, section
300.154, Federal Register/ Vol. 71, No. 156/ August 14, 2006/ pp. 46771-46772,
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)
the parents must be informed that their refusal to permit the school district
to access their public benefits or insurance or private insurance
does not relieve the school district of its responsibility to ensure that
all required services are provided at no cost to the parents.
(2)
. . .
(3)
If the parents of a student with a disability refuse to give consent or
fail to respond to a request to provide consent for an initial evaluation
or reevaluation, the school district may, but is not required to, continue
to pursue those evaluations by using the due process procedures described in
this section. The school district does not violate its obligation
to locate, identify, and evaluate a student in accordance with sections 200.2(a)
and 200.4(b) and (c) of this Part if it declines to pursue the evaluation.
(4) . . .
(5) Consent
for a ward of the State. If the student is a ward of the State and is not
residing with the student's parent, the school district shall make reasonable
efforts to obtain the informed consent from the parent of the student for
an initial evaluation to determine whether the student is a student with
a disability. The school district is not required to obtain informed
consent from the parent of a student, as defined in section 200.1(ii) of
this Part, for an initial evaluation to determine eligibility for special
education services if:
(i) . . .
(ii) . . .
(iii) the
rights of the parent to make educational decisions have been subrogated by
a judge in accordance with State law and consent for an initial evaluation
has been given by an individual appointed by the judge to represent the student.
(6) Consent
for a student who is home instructed, pursuant to section 100.10 of this
Title, or placed in a private school by parents at their own expense. If
a parent of student who is home instructed or placed in a private school
by their parents at their own expense does not provide consent for an initial
evaluation or reevaluation, or the parent fails to respond to a request
to provide consent, the school district may not continue to pursue those
evaluations by using the due process procedures described in this section;
and the school district is not required to consider the student as eligible
for special education services.
(c) [Notice
of meetings] Meeting notice. (1) Whenever the committee on special
education proposes to conduct a meeting related to the development or review
of a student’s IEP, or the provision of a free appropriate public education
to the student, the parent must receive notification in writing at least
five days prior to the meeting. The meeting notice may be provided
to the parent less than five days prior to the meeting to meet the timelines
in accordance with Part 201 of this Title and in situations in which the
parent and the school district agree to a meeting that will occur within
five days. The parent may elect to receive the notice of meetings by
an electronic mail (e-mail) communication if the school district makes such
option available. Effective, January 1, 2009, meeting notice shall
be on a form prescribed by the Commissioner. (2)
Such notice shall:
(i) .
. .
(ii)