As used in this Part:

(a) Adaptive behavior means the effectiveness with which the individual copes with the natural and social demands of his environment.

(b) Adapted physical education means a specially designed program of developmental activities, games, sports and rhythms suited to the interests, capacities and limitations of students with disabilities who may not safely or successfully engage in unrestricted participation in the activities of the regular physical education program.

(c) Annual review means an evaluation, conducted at least annually by the committee on special education, of the status of each student with a disability and each student thought to have a disability who resides within the school district for the purpose of recommending the continuation, modification or termination of the provision of special education programs and services for the student to the board of education.

(d) Approved private school means a private school which conforms with the requirements of Federal and State laws and regulations governing the education of students with disabilities, and which has been approved by the commissioner for the purpose of contracting with public schools for the instruction of students with disabilities.

(e) Assistive technology device means any item, piece of equipment, or product system, whether acquired commercially off the shelf, modified, or customized, that is used to increase, maintain, or improve the functional capabilities of a student with a disability. Such term does not include a medical device that is surgically implanted, or the replacement of such a device.

(f) Assistive technology service means any service that directly assists a student with a disability in the selection, acquisition, or use of an assistive technology device. The term includes

(1) the evaluation of the needs of a student with a disability, including a functional evaluation of the student in the student's customary environment;

(2) purchasing, leasing, or otherwise providing for the acquisition of assistive technology devices by students with disabilities;

(3) selecting, designing, fitting, customizing, adapting, applying, maintaining, repairing, or replacing assistive technology devices;

(4) coordinating and using other therapies, interventions, or services with assistive technology devices, such as those associated with existing education and rehabilitation plans and programs;

(5) training or technical assistance for a student with a disability or, if appropriate, that student's family; and

(6) training or other technical assistance for professionals (including individuals providing education or rehabilitation services), employers, or other individuals who provide services to, employ, or are otherwise substantially involved in the major life functions of that student.

(g) Change in program means a change in any one of the components of the individualized education program of a student as described in section 200.4(d)(2) of this Part.

(h) Change in placement means a transfer of a student to or from a public school, BOCES or schools enumerated in articles 81, 85, 87, 88 or 89 of the Education Law or graduation from high school with a local high school or Regents diploma. For purposes of removal of a student with a disability from the student's current educational placement under Education Law section 3214, change of placement is defined in Part 201 of this Title.

(i)  Class size means the maximum number of students who can receive instruction together in a special class or resource room program and the number of teachers and supplementary school personnel assigned to the class.

(j) Committee on preschool special education (CPSE) means a multidisciplinary team established in accordance with the provisions of section 4410 of the Education Law.

(k) Committee on special education (CSE) means a multidisciplinary team established in accordance with the provisions of section 4402 of the Education Law.

(l) Consent means:

(1) the parent has been fully informed, in his or her native language or other mode of communication, of all information relevant to the activity for which consent is sought, and has been notified of the records of the student which will be released and to whom they will be released;

(2) the parent understands and agrees in writing to the activity for which consent is sought; and

(3) the parent is made aware that the consent is voluntary on the part of the parent and may be revoked at any time except that, if a parent revokes consent, that revocation is not retroactive (i.e., it does not negate an action that has occurred after the consent was given and before the consent was revoked).

(m) Consultant teacher services means direct and/or indirect services, as defined in this subdivision, provided to a student with a disability who attends regular education classes and/or to such student's regular education teachers.

(1) Direct consultant teacher services means specially designed individualized or group instruction provided by a certified special education teacher pursuant to subdivision (yy) of this section, to a student with a disability to aid such student to benefit from the student's regular education classes.

(2) Indirect consultant teacher services means consultation provided by a certified special education teacher pursuant to subdivision (yy) of this section to regular education teachers to assist them in adjusting the learning environment and/or modifying their instructional methods to meet the individual needs of a student with a disability who attends their classes.

(n) Days means calendar days unless otherwise indicated as school day or business day.

(1) School day means any day, including a partial day, that students are in attendance at school for instructional purposes. The term school day has the same meaning for all students in school including students with disabilities and students without disabilities, except that, during the months of July and August, school day means every day except Saturday, Sunday and legal holidays.

(2) Business day means Monday through Friday, except for Federal and State holidays (unless holidays are specifically included in the designation of business day).

(o) Fiscal year means the period commencing on the 1st day of July in each year and ending on the 30th day of June next following.

(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 paragraph (3) of subdivision (d) of section 200.16 of this Part.

(q) Full-day session means a school day with not less than five hours of instruction for preschool students with disabilities and for students whose chronological ages are equivalent to those of students in grades K through 6, and not less than 5 1/2 hours of instruction for students whose chronological ages are equivalent to those of students in grades 7 through 12.

(r) Functional behavioral assessment means the process of determining why a student engages in behaviors that impede learning and how the student's behavior relates to the environment. The functional behavioral assessment shall be developed consistent with the requirements in section 200.22(a) of this Part and shall include, but is not limited to, the identification of the problem behavior, the definition of the behavior in concrete terms, the identification of the contextual factors that contribute to the behavior (including cognitive and affective factors) and the formulation of a hypothesis regarding the general conditions under which a behavior usually occurs and probably consequences that serve to maintain it.

(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) 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) of this Part.

(t) General curriculum means the same general education curriculum as for students without disabilities.

(u) Half-day preschool program means an approved preschool special education program for preschool students with disabilities that provides instruction for a half-day session as defined in subdivision (v) of this section.

(v) Half-day session means a morning or afternoon session with not less than 2 1/2 hours of instruction for students whose chronological ages are equivalent to those of students in grades K through 6, and not less than three hours of instruction for students whose chronological ages are equivalent to those of students in grades 7 through 12, provided that for preschool students with disabilities such term shall mean a morning or afternoon session with not more than 2 1/2 hours of instruction per day.

(w) Home and hospital instruction means special education provided on an individual basis for a student with a disability confined to the home, hospital or other institution because of a disability.

(x) Impartial hearing officer means an individual assigned by a board of education pursuant to Education Law, section 4404(1), or by the commissioner in accordance with section 200.7(d)(1)(i) of this Part, to conduct a hearing and render a decision. No individual employed by a school district, school or program serving students with disabilities placed there by a school district committee on special education may serve as an impartial hearing officer and no individual employed by such schools or programs may serve as an impartial hearing officer for two years following the termination of such employment, provided that a person who otherwise qualifies to conduct a hearing under this section shall not be deemed an employee of the school district, school or program serving students with disabilities solely because he or she is paid by such schools or programs to serve as an impartial hearing officer. An impartial hearing officer shall:

(1) be an individual admitted to the practice of law in the State of New York who is currently in good standing and who has a minimum of two years practice and/or experience in the areas of education, special education, disability rights or civil rights; or be an individual certified by the State of New York as an impartial hearing officer on September 1, 2001;

(2) have access to the support and equipment necessary to perform the duties of an impartial hearing officer:

(3) be independent, shall not be an officer, employee or agent of the school district or of the board of cooperative educational services of which such school district is a component, or an employee of the Education Department, shall not have a personal or professional interest which would conflict with his or her objectivity in the hearing, and shall not have participated in any manner in the formulation of the recommendation sought to be reviewed; and

(4) be certified by the commissioner as an impartial hearing officer eligible to conduct hearings pursuant to Education Law, section 4404(1) and subject to suspension or revocation of such certification by the commissioner for good cause in accordance with the provisions of section 200.21 of this Part. In order to obtain and retain such a certificate, an individual shall:

(i) successfully complete a training program, conducted by the department, which program provides information regarding State and Federal laws and regulations relating to the education of students with disabilities, the needs of such students, and the procedures involved in conducting a hearing, and in reaching and writing a decision;

(ii) attend such periodic update programs as may be scheduled by the commissioner;

(iii) annually submit, in a format and by a date prescribed by the commissioner, a certification that the impartial hearing officer meets the requirements of paragraphs (1), (2) and (3) of this subdivision;

(iv) possess knowledge of, and the ability to understand, the provisions of federal and State Law and regulations pertaining to the Individuals with Disabilities Education Act and legal interpretations of such law and regulations by federal and State Courts; and

(v) possess knowledge of, and the ability to conduct hearings in accordance with appropriate, standard legal practice and to render and write decisions in accordance with appropriate standard legal practice.

(y) Individualized education program means a written statement, developed, reviewed and revised in accordance with section 200.4 of this Part, which includes the components specified in section 200.4(d)(2) of this Part to be provided to meet the unique educational needs of a student with a disability.

(z) Independent evaluation means an individual evaluation of a student thought to have a disability, conducted by a person who is not employed by the public agency responsible for the education of the student. Whenever an independent evaluation is at public expense, the criteria under which the evaluation is obtained, including the location of the evaluation and the qualifications of the examiner, shall be the same as the criteria which the school district uses when it initiates an evaluation.

(aa) Individual evaluation means any procedures, tests or assessments used selectively with an individual student, including a physical examination in accordance with the provisions of sections 903, 904 and 905 of the Education Law, an individual psychological evaluation, except where a school psychologist has determined pursuant to section 200.4(b) of this Part that a psychological evaluation is unnecessary to evaluate a student of school age, a social history and other appropriate assessments or evaluations as may be necessary to determine whether a student has a disability and the extent of his/her special education needs, but does not include basic tests administered to, or procedures used with, all students in a school grade or class.

(bb) Individual psychological evaluation means a process by which a New York State-certified school psychologist or licensed psychologist uses, to the extent deemed necessary for purposes of educational planning, a variety of psychological and educational techniques and examinations in the student's native language, to study and describe a student's developmental, learning, behavioral and other personality characteristics.

(cc) Least restrictive environment means that placement of students with disabilities in special classes, separate schools or other removal from the regular educational environment occurs only when the nature or severity of the disability is such that even with the use of supplementary aids and services, education cannot be satisfactorily achieved. The placement of an individual student with a disability in the least restrictive environment shall:

(1) provide the special education needed by the student;

(2) provide for education of the student to the maximum extent appropriate to the needs of the student with other students who do not have disabilities; and

(3) be as close as possible to the student's home.

(dd) Mediator means a qualified and impartial individual who is trained in effective mediation techniques to resolve disputes in accordance with Education Law section 4404-a and section 200.5(h) of this Part and section 200.5(h) of this Part and who is knowledgeable in laws and regulations relating to the provision of special education services. An individual who serves as a mediator may not have a personal or professional interest which would conflict with his or her objectivity in the mediation process and may not be an employee of a school district or program serving students with disabilities, provided that a person who otherwise qualifies to conduct mediation under section 200.5(h) of this Part shall not be deemed an employee of the State, a school district, school, or a program serving students with disabilities solely because he or she is paid by a community dispute resolution center through grant funds provided by the State Education Department to serve as a mediator.

(ee) Medical services means only evaluative and diagnostic services provided by a licensed physician, or by another appropriately licensed or registered health professional in consultation with, or under the supervision of, a licensed physician, to determine whether a student has a medically related disability which may result in the student's need for special education and related services.

(ff) Native language means:

(1) If used with reference to an individual of limited English proficiency, the language normally used by that individual, or, in the case of a student, the language normally used by the parents of the student, except that, in all direct contact with a student (including evaluation of the student), native language means the language normally used by the student in the home or learning environment.

(2) for an individual with deafness or blindness, or for an individual with no written language, the mode of communication is that normally used by the individual (such as sign language, Braille, or oral communication).

(gg) Occupational therapy means the functional evaluation of the student and the planning and use of a program of purposeful activities to develop or maintain adaptive skills, designed to achieve maximal physical and mental functioning of the student in his or her daily life tasks.

(hh)  Supplementary school personnel means a teacher aide or a teaching assistant as described in section 80-5.6(a) through (d) of this Title. 

(ii) (1) Parent means a birth or adoptive parent, a guardian, 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)   A foster parent may act as a parent unless State law, regulations or contractual obligations with a State or local entity prohibit the foster parent from acting as a parent.

(3) Except as provided in subparagraph (4) of this paragraph, when one or more than one party is qualified under paragraph (1) of this section to act as a parent, the birth or adoptive parent must be presumed to be the parent unless the birth or adoptive parent does not have legal authority to make educational decisions for the student. 

(4) If a judicial decree or order identifies a specific person or persons to act as the parent or make educational decisions on behalf of the student, then such person or persons shall be determined to be the parent for purposes of this Part, except that a public agency that provides education or care for the student, or a private agency that contracts with a public agency for such purposes, shall not act as the parent.

(jj) Participating agency means a State or local agency, other than the public agency responsible for a student's education, that is financially and legally responsible for providing transition services to the student.

(kk) Parent counseling and training means assisting parents in understanding the special needs of their child; providing parents with information about child development; and helping parents to acquire the necessary skills that will allow them to support the implementation of their child's individualized education program.

(ll) Physical therapy means a related service provided in accordance with section 6731(a) of the Education Law.

(mm)Preschool student with a disability is a preschool child as defined in section 4410(1)(i) of Education Law who is eligible to receive preschool programs and services, is not entitled to attend the public schools of the school district of residence 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 can receive appropriate educational opportunities from special programs and services approved by the department. Eligibility as a preschool student with a disability shall be based on the results of an individual evaluation which is provided in the student's native language, not dependent on a single procedure, and administered by a multidisciplinary team in accordance with all other requirements as described in section 200.4 (b) (1) through (5) of this Part.

(1) Commencing July 1, 1993, to be identified as having a disability a preschool student shall either:

(i) exhibit a significant delay or disorder in one or more functional areas related to cognitive, language and communicative, adaptive, socio-emotional or motor development which adversely affects the student's ability to learn. Such delay or disorder shall be documented by the results of the individual evaluation which includes but is not limited to information in all functional areas obtained from a structured observation of a student's performance and behavior, a parental interview and other individually administered assessment procedures, and, when reviewed in combination and compared to accepted milestones for child development, indicate:

(a) a 12-month delay in one or more functional area(s); or

(b) a 33 percent delay in one functional area, or a 25 percent delay in each of two functional areas; or

(c) if appropriate standardized instruments are individually administered in the evaluation process, a score of 2.0 standard deviations below the mean in one functional area, or a score of 1.5 standard deviations below the mean in each of two functional areas; or

(ii) meet the criteria set forth in paragraphs (1), (2), (3), (5), (9), (10), (12) or (13) of subdivision (zz) of this section.

(2) Commencing July 1, 1991, in the calendar year in which such preschool student becomes three years of age, a student shall be first eligible for preschool programs and services on January 2nd of such calendar year, if the student's birthday falls before July 1st, otherwise a student shall be first eligible on July 1st of the calendar year; except that a student who, as of his or her third birthday, is already receiving services pursuant to section 236 of the Family Court Act or its successor, or section 4204-a of the Education Law, may, if the parent so chooses, continue to receive such services through August 31st of the calendar year in which the student first becomes eligible to receive services pursuant to section 4410 of the Education Law. A student shall be deemed to be a preschool student with a disability through the month of August of the school year in which the student first becomes eligible to attend school pursuant to section 3202 of the Education Law.

(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) of this Part, and to conduct evaluations of preschool students with disabilities if such program has a multidisciplinary evaluation component.

(oo) Prior written notice means written statements developed in accordance with section 200.5(a) of this Part, and provided 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, or educational placement of the student or the provision of a free appropriate public education to the student.

(pp) Regular education teacher means:

(1) for a school-age student, a teacher qualified to serve nondisabled students who is providing regular education instruction to the student. If the student is not receiving instruction from one or more regular education teachers, a teacher qualified to provide regular education in the type of program in which the student may be placed may serve as the student’s regular education teacher;

(2) for a preschool child, a regular education teacher qualified to provide regular education services to nondisabled preschool or elementary-level students who is providing regular education instruction to the student. If the student is not receiving instruction from one or more regular education teachers, a teacher qualified to provide regular education in the type of program in which the student may be placed may serve as the preschool student’s regular education teacher.

(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.

(rr) Resource room program means a special education program for a student with a disability registered in either a special class or regular class who is in need of specialized supplementary instruction in an individual or small group setting for a portion of the school day.

(ss) School health services means nursing 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.

(tt) Social history means a report of information gathered and prepared by qualified school district personnel pertaining to the interpersonal, familial and environmental variables which influence a student's general adaptation to school, including but not limited to data on family composition, family history, developmental history of the student, health of the student, family interaction and school adjustment of the student.

(uu) Special class means a class consisting of students with disabilities who have been grouped together because of similar individual needs for the purpose of being provided specially designed instruction as defined in subdivision (vv) of this section.

(vv) Specially-designed instruction means adapting, as appropriate to the needs of an eligible student under this Part, the content, methodology, or delivery of instruction to address the unique needs that result from the student's disability; and to ensure access of the student to the general curriculum, so that he or she can meet the educational standards that apply to all students.

(ww) Special education means specially designed individualized or group instruction or special services or programs, as defined in subdivision 2 of section 4401 of the Education Law, and special transportation, provided at no cost to the parent, to meet the unique needs of students with disabilities.

(1) Such instruction includes but is not limited to that conducted in classrooms, homes, hospitals, institutions and in other settings.

(2) Such instruction includes specially designed instruction in physical education, including adapted physical education.

(3) For purposes of this definition:

(i) The individual needs of a student shall be determined by a committee on special education in accordance with the provisions of section 200.4 of this Part upon consideration of the present levels of performance and expected learning outcomes of the student. Such individual-need determinations shall provide the basis for written annual goals, direction for the provision of appropriate educational programs and services and development of an individualized education program for the student. The areas to be considered shall include:

(a) academic achievement, functional performance and learning characteristics which shall mean the levels of knowledge and development in subject and skill areas, including activities of daily living, level of intellectual functioning, adaptive behavior, expected rate of progress in acquiring skills and information, and learning style;

(b) social development which shall mean the degree and quality of the student's relationships with peers and adults, feelings about self, and social adjustment to school and community environments;

(c) physical development which shall mean the degree or quality of the student's motor and sensory development, health, vitality, and physical skills or limitations which pertain to the learning process; and

(d) management needs which shall mean the nature of and degree to which environmental modifications and human or material resources are required to enable the student to benefit from instruction. Management needs shall be determined in accordance with the factors identified in each of the three areas described in clauses (a)-(c) of this subparagraph.

(ii) Group instruction means instruction of students grouped together according to similarity of individual needs for the purpose of special education. The curriculum and instruction provided to such groups shall be consistent with the individual needs of each student in the group, and the instruction required to meet the individual needs of any one student in the group shall not consistently detract from the instruction provided other students in the group.

(xx) Special education provider means an individual qualified pursuant to paragraph (3) of section 200.6(b) of this Part who is providing related services, as defined in paragraph (qq) of this section, to the student. If the student is not receiving related services, an individual qualified to provide related services needed by the student may serve as the related service provider of the student.

(yy) Special education teacher means a person, including an itinerant teacher, certified or licensed to teach students with disabilities pursuant to Part 80 of this Title who is providing special education to the student. For a student who is being considered for initial placement in special education, a teacher qualified to provide special education in the type of program in which the student may be placed may serve as the student's special education teacher.

(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) Autism means a developmental disability significantly affecting verbal and nonverbal communication and social interaction, generally evident before age 3, that adversely affects a student’s educational performance. Other characteristics often associated with autism are engagement in repetitive activities and stereotyped movements, resistance to environmental change or change in daily routines, and unusual responses to sensory experiences. The term does not apply if a student's educational performance is adversely affected primarily because the student has an emotional disturbance as defined in paragraph 4 of this subdivision. A student who manifests the characteristics of autism after age 3 could be diagnosed as having autism if the criteria in this paragraph are otherwise satisfied.

(2) Deafness means a hearing impairment that is so severe that the student is impaired in processing linguistic information through hearing, with or without amplification, that adversely affects a student’s educational performance.

(3) Deaf-blindness means concomitant hearing and visual impairments, the combination of which causes such severe communication and other developmental and educational needs that they cannot be accommodated in special education programs solely for students with deafness or students with blindness.

(4)Emotional disturbance means a condition exhibiting one or more of the following characteristics over a long period of time and to a marked degree that adversely affects a student’s educational performance:

(i) an inability to learn that cannot be explained by intellectual, sensory, or health factors.

(ii) an inability to build or maintain satisfactory interpersonal relationships with peers and teachers;

(iii) inappropriate types of behavior or feelings under normal circumstances;

(iv) a generally pervasive mood of unhappiness or depression; or

(v) a tendency to develop physical symptoms or fears associated with personal or school problems.

The term includes schizophrenia. The term does not apply to students who are socially maladjusted, unless it is determined that they have an emotional disturbance.

(5) Hearing impairment means an impairment in hearing, whether permanent or fluctuating, that adversely affects the child's educational performance but that is not included under the definition of deafness in this section.

(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) 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) Mental retardation means significantly subaverage general intellectual functioning, existing concurrently with deficits in adaptive behavior and manifested during the developmental period, that adversely affects a student’s educational performance.

(8) Multiple disabilities means concomitant impairments (such as mental retardation-blindness, mental retardation-orthopedic impairment, etc.), the combination of which cause such severe educational needs that they cannot be accommodated in a special education program solely for one of the impairments. The term does not include deaf-blindness.

(9) Orthopedic impairment means a severe orthopedic impairment that adversely affects a student's educational performance. The term includes impairments caused by congenital anomaly (e.g., clubfoot, absence of some member, etc.), impairments caused by disease (e.g., poliomyelitis, bone tuberculosis, etc.), and impairments from other causes (e.g., cerebral palsy, amputation, and fractures or burns which cause contractures).

(10) Other health-impairment means having limited strength, vitality or alertness, including a heightened alertness to environmental stimuli, that results in limited alertness with respect to the educational environment, that is due to chronic or acute health problems, including but not limited to a heart condition, tuberculosis, rheumatic fever, nephritis, asthma, sickle cell anemia, hemophilia, epilepsy, lead poisoning, leukemia, diabetes, attention deficit disorder or attention deficit hyperactivity disorder or tourette syndrome, which adversely affects a student's educational performance.

(11) Speech or language impairment means a communication disorder, such as stuttering, impaired articulation, a language impairment or a voice impairment, that adversely affects a student's educational performance.

(12) Traumatic brain injury means an acquired injury to the brain caused by an external physical force or by certain medical conditions such as stroke, encephalitis, aneurysm, anoxia or brain tumors with resulting impairments that adversely affect educational performance. The term includes open or closed head injuries or brain injuries from certain medical conditions resulting in mild, moderate or severe impairments in one or more areas, including cognition, language, memory, attention, reasoning, abstract thinking, judgement, problem solving, sensory, perceptual and motor abilities, psychosocial behavior, physical functions, information processing, and speech. The term does not include injuries that are congenital or caused by birth trauma.

(13) Visual impairment including blindness means an impairment in vision that, even with correction, adversely affects a student's educational performance. The term includes both partial sight and blindness.

(aaa) Substantial regression means a student's inability to maintain developmental levels due to a loss of skill or knowledge during the months of July and August of such severity as to require an inordinate period of review at the beginning of the school year to reestablish and maintain IEP goals and objectives mastered at the end of the previous school year.

(bbb) Supplementary aids and services means aids, services, and other supports that are provided in regular education classes or other education-related settings to enable students with disabilities to be educated with nondisabled students to the maximum extent appropriate in accordance with the least restrictive environment.

(ccc) Surrogate parent means a person appointed to act in place of parents or guardians when a student's parents or guardians are not known, or when after reasonable efforts, the board of education cannot discover the whereabouts of a parent, the student is an unaccompanied homeless youth or the student is a ward of the State and does not have a parent who meets the definition in subdivision (ii) of this section, or the rights of the parent to make educational decisions have been subrogated by a judge in accordance with State law.

(ddd) Transitional support services means those temporary services, specified in a student's individualized education program, provided to a regular or special education teacher to aid in the provision of appropriate services to a student with a disability transferring to a regular program or to a program or service in a less 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) and 200.16(h)(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) instruction;

(2) related services;

(3) community experiences;

(4) the development of employment and other post-school adult living objectives; and

(5) when appropriate, acquisition of daily living skills and functional vocational evaluation.

(ggg) Travel training is a special education service that means providing instruction, as appropriate, to students with significant cognitive disabilities, and any other students with disabilities who require this instruction, to enable them to develop an awareness of the environment in which they live; and learn the skills to move effectively and safely from place to place within that environment (e.g., in school, in the home, at work, and in the community).

(hhh)  Homeless youth means the same as the term ‘homeless child’ as defined in section 100.2(x) of this Title. 

(iii)  Limited English proficient student means the same as the term ’pupils with limited English proficiency’ as defined in section 154.2(a) of this Title. 

(jjj)     Universal design means a concept or philosophy for designing and delivering products and services that are usable by people with the widest possible range of functional capabilities, which include products and services that are directly usable (without requiring assistive technologies) and products and services that are made usable with assistive technologies. 

(kkk) Ward of the State means a child or youth under the age of twenty-one:

(1) who has been placed or remanded pursuant to section 358-a, 384 or 384-a of the Social Services Law, or article 3, 7, or 10 of the Family Court Act, or freed for adoption pursuant to section 383-c, 384 or 384-b of the Social Services Law; or

(2) who is in the custody of the Commissioner of Social Services or the Office of Children and Family Services; or

(3) who is a destitute child under section 398(1) of the Social Services Law. 

(a) Census and register of students with disabilities. (1) The board of education or trustees of each school district shall conduct a census in accordance with Education Law, sections 3240, 3241 and 3242, to locate and identify all students with disabilities who reside in the district and shall establish a register of such students who are entitled to attend the public schools of the district or are eligible to attend a preschool program in accordance with section 4410 of the Education Law during the next school year,  including students with disabilities who are homeless or who are wards of the State. The register of such students and others referred to the committee as possibly having a disability shall be maintained and revised annually by the district committee on special education or the committee on preschool special education, as appropriate. Procedures shall be implemented to assure the availability of statistical data to readily determine the status of each student with a disability in the identification, location, evaluation, placement and program review process. Census data shall be reported by October 1st to the committee on special education or committee on preschool special education, as appropriate.

(2) Data requirements. (i) Procedures shall be designed to record data on each student, and shall include at least the following types of data:

(a) student's name, address and birthdate;

(b) student's parents' names, address(es), and the native language of the student's home;

(c) student's suspected disability;

(d) dates of referral, evaluations, recommendations of the committee on special education, or committee on preschool special education, actual placement, and annual program reviews;

(e) site where the student is currently receiving an educational program;

(f) other student information as required by the Individuals with Disabilities Education Act (20 U.S.C. 1400 et.seq.) and federal regulations, including but not limited to the student’s race, ethnicity, limited English proficiency status, gender and disability category; and

(g) if the student is not receiving an appropriate public education, the reason shall be described.

(ii) The data shall be organized so that it can readily be determined whether each student is receiving an appropriate public education, a partial education or no education at all.

(3) Data collection. All persons involved in the collection of data shall have received prior training and written information regarding the procedures to be followed in collecting the data.

(4) Data reporting. The reporting of data shall be conducted in accordance with the following policies and procedures:

(i) School districts shall prepare, and keep on file, summary reports of student data, including numbers of students who are:

(a) unserved and the reasons they are unserved; and

(b) served.

(ii) A summary report of the students served shall be submitted by local school districts to the State Education Department in a manner prescribed by the commissioner.

(5) The board of education or trustees of each school district shall keep on file the register and related summary reports which shall be available to the district superintendent of the supervisory district in which the district is located or other representatives of the State Education Department.

(6) Paragraphs (1)-(5) of this subdivision shall not apply to schools and students subject to the provisions of articles 81, 85, 87 and 88 of the Education Law and chapter 1060 of the Laws of 1974. Schools subject to the provisions of such articles and chapter shall keep their own census of students, and shall submit such census directly to the commissioner on forms prescribed by the commissioner.

(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. 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:

(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 extracurricular programs and activities, which are available to all other students enrolled in the public schools of the district;

(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;

(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 section 300.500 and sections 300.560 through 300.577 and Part 99 of title 34 of the Code of Federal Regulations (Code of Federal Regulations, 1999 edition, Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402: 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 and prereferral interventions in order to remediate a student’s performance prior to referral for special education; 

(8) establishes plans and policies for the appropriate declassification of students with disabilities which must include:

(i) the regular consideration for declassifying students when appropriate;

(ii) a reevaluation of the student prior to declassification; and

(iii) the provision of educational and support services to the student upon declassification; and

(9) establishes administrative procedures for the selection and board appointment of an impartial hearing officer consistent with the procedures in paragraph (e)(1) of this section and section 200.5(j) of this Part.

(10) 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 20402-001; 2004; 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 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) ensure that the district gives a preference in the purchase of the instructional materials it has selected for its students to those vendors who agree to provide such instructional materials in alternative formats;

(ii) specify, when an electronic file is provided, how the format will be accessed by students and/or how the district will convert to an accessible format;

(iii) specify the process to be used when ordering materials to identify the needs of students with disabilities residing in the district for alternative format materials;

(iv) specify ordering timelines to ensure that alternative format materials are available at the same time as regular format materials are available; and

(v) include procedures so that when students with disabilities move into the school district during the school year, the process to obtain needed materials in alternative formats for such students is initiated without delay.

(11) establishes administrative practices and procedures to ensure that:

(i) each regular education teacher, special education teacher, related service provider and/or other service provider, as defined in clause (a) of this subparagraph, who is responsible for the implementation of a student’s individualized education program (IEP), is provided a paper or electronic copy of such student’s IEP, including amendments to the IEP made pursuant to section 200.4(g) of this Part, prior to the implementation of such program.

(a) For purposes of this paragraph, "other service provider" means a representative of another public school district, charter school, board of cooperative educational services (BOCES) or school enumerated in articles 81, 85 or 89 of the Education Law where the student receives or will receive IEP services.

(ii) any copy of a student’s IEP provided pursuant to this paragraph shall remain confidential and shall not be disclosed to any other person, in accordance with paragraph (6) of this subdivision; and

(iii) the chairperson of the committee on special education designates for each student one, or as appropriate, more than one professional employee of the school district with knowledge of the student's disability and education program to, prior to the implementation of the IEP, inform each regular education teacher, special education teacher, related service provider, other service provider, supplementary school personnel, as defined in section 200.1(hh) of this Part, and other provider and support staff person of his or her responsibility to implement the recommendations on a student's IEP, including the responsibility to provide specific accommodations, program modifications, supports and/or services for the student in accordance with the IEP.

(12) identifies the measurable steps it shall take to recruit, hire, train and retain highly qualified personnel to provide special education programs and services;

(13)  describes the guidelines for the provision of appropriate accommodations necessary to measure the academic achievement and functional performance of the student in the administration of districtwide assessments; and

(14) identifies how the district, to the extent feasible, will use universal design principles in developing and administering any districtwide assessment programs.

(c) District plans. (1) Each board of education which receives an apportionment for eligible students, pursuant to subdivision 19 of section 3602 of the Education Law, or preschool students with disabilities pursuant to section 4410 of the Education Law shall use such apportionments for special education programs and services which are in accordance with the provisions of this Part. Each board of education which receives such apportionment shall prepare satisfactory plans periodically at the intervals required by subdivision 10 of section 3602 of Education Law.

(2) Each such plan shall include, but need not be limited to, the following:

(i) a description of the nature and scope of special education programs and services currently available to students and preschool students residing in the district, including but not limited to descriptions of the district's resource room programs and each special class program provided by the district in terms of group size and composition;

(ii) identification of the number and age span of students and preschool students to be served by type of disability, and recommended setting;

(iii) the method to be used to evaluate the extent to which the objectives of the program have been achieved;

(iv) a description of the policies and practices of the board of education to ensure the continual allocation of appropriate space within the district for special education programs that meet the needs of students and preschool students with disabilities;

(v) a description of the policies and practices of the board of education to ensure that appropriate space will be continually available to meet the needs of resident students and preschool students with disabilities who attend special education programs provided by boards of cooperative educational services;

(vi) a description of how the district intends to ensure that all instructional materials to be used in the schools of the district will be made available in a usable alternative format, as such term is defined in paragraph (10) of subdivision (b) of this section, for each student with a disability at the same time as such instructional materials are available to non-disabled students. To meet this requirement, the district plan may incorporate by reference the plan established by the board of education pursuant to paragraph (10) of subdivision (b) of this section.

(vii) the estimated budget to support such plan;

(viii) the date on which such plan was adopted by the board of education; and

(ix) a description of how the district plan is consistent with the special education space requirements plan developed pursuant to subdivision (g) of this section.

(3) Any change to the allocation of space for special education programs which is not consistent with the regional special education space requirements plan developed pursuant to subdivision (g) of this section shall be made pursuant to the provisions of paragraph (g)(5) of this section.

(4) The district plan, with personally identifiable student information deleted, shall be filed and available for public inspection and review by the commissioner.

(d) Approval of services. (1) Approval of services for students with disabilities. The board of education or board of trustees of each school district shall, upon completion of its review of the recommendation of the committee on special education for special education programs and services, including changes to the committee on special education’s recommendation made pursuant to section 200.4(g) of this Part, in accordance with section 200.4(e)(1) and (2) of this Part, arrange for the appropriate special education programs and services to be provided to a student with a disability as recommended by the committee on special education. The board shall notify the parent of its action in accordance with section 4402(2)(b)(2) of the Education Law.

(2) Approval of services for preschool students with disabilities. The board of education or the board of trustees of each school district shall, upon completion of the recommendation of the committee on preschool special education for special education programs and services, including changes to the committee’s recommendation made pursuant to section 200.4(g) of this Part, arrange for appropriate special education programs and services for a preschool student with a disability, as recommended by the committee on preschool special education, from among the services and programs approved for such purpose by the commissioner. The board shall notify the parent, the municipality and the commissioner of its action in accordance with section 4410 of the Education Law.

(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 200.1(x)(2) of this Part and;

(ii) available to serve in the district in hearings conducted pursuant to Education Law section 4404(1). Appointment of impartial hearing officers pursuant to Education Law section 4404(1) shall be made only from such list and in accordance with the rotation selection process prescribed herein and the timelines and procedures in section 200.5(j) of this Part. Such names will be listed in alphabetical order. Selection from such list shall be made on a rotational basis beginning with the first name appearing after the impartial hearing officer who last served or, in the event no impartial hearing officer on the list has served, beginning with the first name appearing on such list. Should that impartial hearing officer decline appointment, or if, within 24 hours, the impartial hearing officer fails to respond or is unreachable after reasonable efforts by the district that are documented and can be independently verified, each successive impartial hearing officer whose name next appears on the list shall be offered appointment, until such appointment is accepted. The name of any newly certified impartial hearing officer who is available to serve in the district shall be inserted into the list in alphabetical order;

(2) persons from whom the district shall choose a surrogate parent pursuant to section 200.5(n) of this part; and

(3) preschool programs within the county in which the district is located and preschool programs in adjoining counties, or, in the case of districts located in the City of New York, preschool programs within the City of New York and preschool programs within counties adjoining the City of New York. The list of preschool programs shall be available for dissemination at appropriate sites including, but not limited to, pre-kindergarten, day care and head start programs within the district, and Early Childhood Direction Centers.

(f) Responsibilities of boards of education which provide education pursuant to part 11 of article 41 of the Education Law (sections 2040-2045). Where a board of education provides for the education of all of its students, or of all of its students of any particular grade, by contracting with another board of education pursuant to section 2040 or 2045 of the Education Law, the committee on special education of the receiving school district shall serve as the committee on special education for all students so placed in such receiving school district.

(g) Special education space requirements plans. The district superintendent of schools of each board of cooperative educational services (BOCES) shall submit a special education space requirements plan to the commissioner no later than February 1, 1989 and by February 1st of every fifth year thereafter in accordance with Education Law, section 1950(17). The purpose of such plan shall be to determine the need for additional facilities space for all special education programs in the geographic area served by the BOCES, including programs provided by the BOCES, component school districts of the BOCES, and those noncomponent public school districts, approved private schools for students with disabilities, and State-supported schools, which are located within the geographic boundaries of the supervisory district. Such plan shall provide the framework for the allocation of instructional space to meet the current and future special education program and service needs, provide access to the general curriculum, and serve students with disabilities in settings with nondisabled peers.

(1) Development of plan. Such plan shall be developed by the district superintendent who shall appoint a planning committee to assist in the development of the plan. The planning committee shall also ensure that an effective process for obtaining public comment during the planning process is initiated, and shall provide a description of such process and a summary of public commentary received, to the district superintendent for submission to the commissioner with the plan. Such planning committee shall include, but need not be limited to:

(i) the district superintendent of schools responsible for developing the plan;

(ii) the superintendents of schools, or their designees, of at least one third, but not less than five, of the public school districts in the geographic area served by the BOCES;

(iii) a representative of at least one approved private school located within the geographic area served by the BOCES, if any are so located; and

(iv) one parent of a student with a disability who is educated in a special education program operated by the BOCES and one parent of a student with a disability who is educated in a special education program operated by a public school district located within the geographic area served by the BOCES.

(2) Contents of plan. The special education space requirements plan shall be in a format prescribed by the commissioner and shall include, but need not be limited to, the following:

(i) a description of the space available for special education programs and services within the facilities of local school districts, the BOCES, and approved private schools located within the geographic area served by the BOCES;

(ii) a description of the current and future special education program and service space needed to serve all students with disabilities within the geographic area served by the BOCES;

(iii) a regional plan to allocate, lease, renovate or construct space that would include special education programs and services within the geographic area served by the BOCES which is sufficient and appropriate to meet such current and future special education space needs of all students with disabilities, and which:

(a) ensures that students with disabilities, including students in public and approved private schools and other approved facilities, are educated in age-appropriate settings and to the maximum extent appropriate with students who are not disabled;

(b) ensures that placement of students with disabilities in special classes, separate schooling or other removal from the regular education environment occurs only when the nature or severity of the disability is such that even with the use of supplementary aids and services, education cannot be achieved satisfactorily; and

(c) ensures that students with disabilities have appropriate access to the general curriculum.

(iv) a description of procedures to ensure the stability and continuity of program placement for students with disabilities, including procedures that ensure that special education programs and services located in appropriate facilities will not be relocated without adequate consideration of the needs of participating students with disabilities.

(3) Submission of the plan. The district superintendent shall submit the special education space requirements plan to the commissioner and shall forward a copy of such plan to the board of education of each public school district within the geographic area served by the BOCES where it shall be available for public inspection. In addition, the district superintendent shall forward a copy of such plan to each approved private school located within the geographic area served by the BOCES.

(4) Approval of plan. The commissioner will review each special education space requirements plan and will notify the appropriate district superintendent of its approval or disapproval. Approval of new leases, new construction and renovation of instructional space within the geographic area served by the BOCES will be reviewed and approved, pursuant to Part 155 of this Title, consistent with an approved regional special education space requirements plan. In the event that the plan does not receive approval from the commissioner:

(i) the commissioner will notify the district superintendent in writing of the reasons for denial of approval;

(ii) the district superintendent shall reply to the commissioner's notification within 45 days of the date of notice, indicating the specific changes made in the plan to correct identified deficiencies; and

(iii) if, after revision, the plan does not receive approval, the commissioner shall convene a meeting of the planning committee which developed the plan for the purpose of resolving outstanding issues, according to procedures and timelines set at that time by the commissioner.

(5) Amendments to plan. When, due to changes in the availability of appropriate facility space, a public school district or a BOCES intends to reallocate existing and/or planned special education space, and such reallocation is not consistent with an approved special education space requirements plan:

(i) the district superintendent shall submit to the commissioner for approval an amendment to the special education space requirements plan in a format prescribed by the commissioner no later than 90 days prior to each relocation of a special education program operated by the BOCES that would result in moving such programs from one school district to another or from a regular school building to a separate special education facility and/or each expansion of instructional space that would result in additional special classes in separate settings.

(ii) in the event that a board of education within the geographic area served by the BOCES proposes to relocate a school district special education program from a regular school building to a separate special education facility and/or to expand instructional space that would result in additional special classes in separate settings, such board of education shall notify the appropriate district superintendent of schools within timelines to be established by the district superintendent. The district superintendent shall then submit to the commissioner for approval an amendment to the special education space requirements plan no later than 90 days after receipt of such notice by the district superintendent.

(iii) the regional space planning committee, or a representative subgroup thereof, shall assist in the development of the amendment and ensure that an effective process for obtaining public comment on the proposed amendment is implemented.

(6) Annual progress report. (i) Each district superintendent shall submit an annual progress report to the commissioner, by a date and in a format prescribed by the commissioner which includes, but is not limited to:

(a) actual and projected numbers and projected percentages of students with disabilities in settings with nondisabled peers in the region;

(b) a description of expected significant changes to the plan; and

(c) a description of the procedures to ensure the stability and continuity of program placements for students with disabilities.

(ii) Review of the annual progress report. In the event that the annual progress report does not demonstrate sufficient progress in meeting the current and future needs of all students with disabilities, the commissioner shall require submission of a revised special education space requirements plan for approval pursuant to paragraph (4) of this subdivision.

(h) The board of education or trustees of each school district and each board of cooperative educational services shall develop and implement a plan as part of the professional development plan pursuant to section 100.2(dd) of this Title that shall include, but is not limited to, a description of the professional development activities provided to all professional staff and supplementary school personnel who work with students with disabilities to assure that they have the skills and knowledge necessary to meet the needs of students with disabilities. 

(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, U. S. Government Printing Office, Stop SSOP, Washington, DC 20402-001; 2004; 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) ensure that the BOCES gives a preference in the purchase of the instructional materials it has selected for its students to those vendors who agree to provide such instructional materials in alternative formats;

(ii) specify, when an electronic file is provided, how the format will be accessed by students and/or how the BOCES will convert to an accessible format;

(iii) specify the process to be used when ordering materials to identify the needs of students enrolled in the programs of the BOCES for alternative format materials;

(iv) specify ordering timelines to ensure that alternative format materials are available at the same time as regular format materials are available; and

(v) include procedures so that when students with disabilities enroll in a program of the BOCES during the school year, the process to obtain needed materials in alternative format is initiated without delay.

(2)    Responsibility to identify and take measurable steps to recruit, hire, train and retain highly qualified personnel.  Each BOCES shall identify and take steps to recruit, hire, train and retain highly qualified personnel to provide special education programs and services to students with disabilities served by the BOCES.

200.3 Committee on special education and committee on preschool special education.

(a) Each board of education or board of trustees shall appoint:

(1) committees on special education in accordance with the provisions of Education Law, section 4402, as necessary to ensure timely evaluation and placement of students. The membership of each committee shall include, but not be limited to:

(i) the parents or persons in parental relationship to the student;

(ii) not less than one regular education teacher of the student whenever the student is or may be participating in the regular education environment;

(iii) not less than one special education teacher of the student, or, if appropriate, not less than one special education provider of the student;

(iv) a school psychologist;

(v) a representative of the school district who is qualified to provide or supervise special education and who is knowledgeable about the general education curriculum and the availability of resources of the school district, provided that an individual who meets these qualifications may also be the same individual appointed as the special education teacher or the special education provider of the student or the school psychologist;

(vi) an individual who can interpret the instructional implications of evaluation results. Such individual may also be the individual appointed as the regular education teacher, the special education teacher or special education provider, the school psychologist, the representative of the school district or a person having knowledge or special expertise regarding the student when such member is determined by the school district to have the knowledge and expertise to fulfill this role on the committee;

(vii) a school physician, if specifically requested in writing by the parent of the student or by a member of the school at least 72 hours prior to the meeting;

(viii) an additional parent member of a student with a disability residing in the school district or a neighboring school district, provided that the additional parent member may be the parent of a student who has been declassified within a period not to exceed five years or the parent of a student who has graduated within a period not to exceed five years. Such parent is not a required member if the parents of the student request that the additional parent member not participate in the meeting;

(ix) other persons having knowledge or special expertise regarding the student, including related services personnel as appropriate, as the school district or the parent(s) shall designate. The determination of knowledge or special expertise of such person shall be made by the party (parents or school district) who invited the individual to be a member of the committee on special education; and

(x) if appropriate, the student.

(2) committees on preschool special education in accordance with provisions of Education Law, section 4410 to implement the provisions of section 200.16 of this Part. The membership of each committee on preschool special education shall include, but not be limited to:

(i) the parents of the preschool child;

(ii) not less than one regular education teacher of the child whenever the child is or may be participating in the regular education environment;

(iii) not less than one special education teacher of the child, or, if appropriate, not less than one special education provider of the child;

(iv) a representative of the school district who is qualified to provide or supervise special education and who is knowledgeable about the general education curriculum and the availability of preschool special education programs and services and other resources of the school district and the municipality. The representative of the school district shall serve as the chairperson of the committee;

(v) an additional parent member of a child with a disability residing in the school district or a neighboring school district and whose child is enrolled in a preschool or elementary level education program, provided that such parent is not a required member if the parent(s) of the child request that the additional parent member not participate;

(vi) an individual who can interpret the instructional implications of evaluation results, provided that such individual may also be the individual appointed as the regular education teacher, the special education teacher or special education provider, the school psychologist, the representative of the school district or a person having knowledge or special expertise regarding the student when such member is determined by the school district to have the knowledge and expertise to fulfill this role on the committee;

(vii) other persons having knowledge or special expertise regarding the child, including related services personnel as appropriate, as the school district or the parents shall designate. The determination of knowledge or special expertise of such person shall be made by the party (parents or school district) who invited the individual to be a member of the committee on special education; 

(viii) for a child in transition from early intervention programs and services, the appropriate professional designated by the agency that has been charged with the responsibility for the preschool child; and

(ix) a representative of the municipality of the preschool child’s residence, provided that the attendance of the appointee of the municipality shall not be required for a quorum.

(b) Each child care institution, as defined in Education Law, section 4001, maintaining a school, shall appoint a committee on special education in accordance with the provisions of Education Law, section 4402.

(c) The board of education in a city school district in a city having a population in excess of 125,000 inhabitants shall appoint subcommittees on special education to the extent necessary to ensure timely evaluation and placement of students with disabilities. Boards of education or trustees of any school district outside of a city having a population in excess of 125,000 inhabitants may appoint subcommittees on special education to assist the board of education in accordance with Education Law section 4402(1)(b)(1)(b) and the provisions of this subdivision.

(1) The board of education shall determine the number of subcommittees to be appointed, upon the recommendation of the committee on special education.

(2) The membership of each subcommittee shall include, but not be limited to:

(i) the parents of the student;

(ii) not less than one regular education teacher of the student whenever the student is or may be participating in the regular education environment;

(iii) not less than one of the student's special education teachers or, if appropriate, not less than one special education provider of the student;

(iv) a representative of the school district who is qualified to provide, administer or supervise special education and who is knowledgeable about the general education curriculum and who is knowledgeable about the availability of resources of the school district, who may also fulfill the requirement of subparagraph (iii) or (v) of this paragraph;

(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) of this Part, is considered;

(vi) an individual who can interpret the instructional implications of evaluation results, who may be a member appointed pursuant to subparagraphs (ii) through (v) or (vii) of this paragraph;

(vii) such other persons having knowledge or special expertise regarding the student, including related services personnel as appropriate, as the committee or the parent shall designate. The determination of knowledge or special expertise of such person shall be made by the party (parents or school district) who invited the individual to be a member of the committee on special education; and

(viii) the student, if appropriate.

(3) Each subcommittee may perform the functions of the committee on special education pursuant to the provisions of Education Law, section 4402, except as specified in paragraphs (4) and (5) of this subdivision.

(4) The subcommittee may perform the functions of the committee on special education pursuant to the provisions of Education Law, section 4402, except when a student is considered for initial placement in:

(i) a special class; or

(ii) a special class outside of the student's school of attendance; or

(iii) a school primarily serving students with disabilities or a school outside of the student's district.

(5) Upon receipt of a written request from the parent or legal guardian of a student, the subcommittee shall immediately refer to the committee for its review any recommendation of the subcommittee concerning the identification, evaluation, educational placement or provision of a free appropriate public education to a student that is not acceptable to the parent or person in parental relationship to such student.

(6) Each subcommittee shall report annually the status of each student with a disability within its jurisdiction to the committee on special education.

(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 strategies for the student; and

(2) supplementary aids and services, program modifications or supports for school personnel that will be provided for the student, consistent with section 200.4(d) of this Part.

(a) Referral. A student suspected of having a disability shall be referred in writing to the chairperson of the district's committee on special education or to the building administrator of the school which the student attends or is eligible to attend for an individual evaluation and determination of eligibility for special education programs and services.

(1) A referral may be made by:

(i) a student's parent or person in parental relationship;

(ii) a professional staff member of the school district in which the student resides, or the public or private school the student legally attends;

(iii) a licensed physician;

(iv) a judicial officer;

(v) the commissioner or designee of a public agency with responsibility for welfare, health or education of children; or

(vi) for purposes of referring one's self, a student who is over 18 years of age or older, or an emancipated minor, who is eligible to attend the public schools of the district.

(2) A referral submitted by persons other than the parent, student or a judicial officer shall:

(i) state the reasons for the referral and include any test results, records or reports upon which the referral is based that may be in the possession of the person submitting the referral;

(ii) describe in writing, intervention services, programs or instructional methodologies used to remediate the student's performance prior to referral, including any supplementary aids or support services provided for this purpose, or state the reasons why no such attempts were made; and

(iii) describe the extent of parental contact or involvement prior to the referral.

(3) The date of receipt of a referral means the date on which either the committee chairperson or the building administrator receives the referral, whichever is earlier.

(4) If a referral is received by the building administrator, it shall be forwarded to the committee chairperson immediately upon its receipt by the administrator.

(5) If a referral is received by the committee chairperson, a copy shall be forwarded to the building administrator within five school days of its receipt by the committee chairperson.

(6) A committee chairperson who receives a referral shall immediately notify the parent pursuant to section 200.5(a) of this Part.

(7) In the event that the parent and the person submitting the referral agree in writing pursuant to section 200.5(b) of this Part that the referral shall be withdrawn, the chairperson of the committee on special education shall provide the parent and the referring person a copy of the agreement. Each such agreement shall specify any alternative methods suggested to resolve the identified learning difficulty of the student and shall provide the opportunity for a follow-up conference within an agreed period of time to review the student's progress. A copy of the agreement shall also be placed in the student's cumulative educational record file.

(8) 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 is not obtained within 30 days of the date of receipt of referral, the chairperson shall document attempts made by the chairperson or other representatives of the committee to obtain parental consent, and shall notify the board of education that they may utilize the due process procedures described in section 200.5 of this Part to permit the district to conduct an evaluation of the student without the consent of the parent.

(9) The building administrator, upon receipt of a referral or copy of a referral, may request a meeting with the parent or person in parental relationship to the student, and the student, if appropriate, to determine whether the student would benefit from additional general education support services as an alternative to special education, including the provision of educationally related support services, speech and language improvement services, academic intervention services, and any other services designed to address the learning needs of the student and maintain a student's placement in general education with the provision of appropriate educational and support services. 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. 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 and the proposed duration of such program. A copy of the agreement shall also be placed in the student's cumulative education record file. The meeting:

(i) shall be conducted within 10 school days of the building administrator's receipt of the referral; and

(ii) 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 is withdrawn pursuant to paragraph (a) (7) or (9) of this section, an individual evaluation of the referred student shall be initiated by a committee on special education and shall include a variety of assessment tools and strategies, including information provided by the parent, to gather relevant functional, developmental and academic information about the student that may assist in determining whether the student is a student with a disability and the content of the student's individualized education program, including information related to enabling the student to participate and progress in the general education curriculum (or for a preschool child, to participate in appropriate activities). The individual evaluation must be at no cost to the parent, and the initial evaluation must include at least:

(i) a physical examination in accordance with the provisions of sections 903, 904 and 905 of the Education Law;

(ii) an individual psychological evaluation, except when a school psychologist determines after an assessment of a school-age student, pursuant to paragraph (2) of this subdivision, that further evaluation is unnecessary;

(iii) a social history;

(iv) an observation of the student in the current educational placement; and

(v) other appropriate assessments or evaluations, including a functional behavioral assessment for a student whose behavior impedes his or her learning or that of others, as necessary to ascertain the physical, mental, behavioral and emotional factors which contribute to the suspected disabilities.

(2) A determination by a school psychologist of the need to administer an individual psychological evaluation to a student of school-age pursuant to Education Law, section 4402(1)(b)(3)(a) and section 200.1 (aa) and (bb) of this Part, shall be based upon an assessment conducted by the school psychologist to substantiate his or her determination. Whenever a school psychologist determines that a psychological evaluation is unnecessary, the psychologist shall prepare a written report of such assessment, including a statement of the reasons such evaluation is unnecessary, which shall be reviewed by the committee.

(3) Notwithstanding any provisions of this subdivision or section 200.1 (aa) of this Part to the contrary, the committee on special education may direct that additional evaluations or assessments be conducted in order to appropriately assess the student in all areas related to the suspected disabilities.

(4) A committee on special education shall arrange for an appropriate reevaluation of each student with a disability if the school district determines that the educational or related services needs, including improved academic achievement and functional performance of the student warrant a reevaluation, or if the student's parent or teacher requests a reevaluation, but not more frequently than once a year, unless the parent and representatives of the school district appointed to the committee on special education agree otherwise; and at least once every three years. The reevaluation shall be conducted by a multidisciplinary team or group of persons, including at least one teacher or other specialist with knowledge in the area of the student’s disability. In accordance with paragraph (5) of this subdivision, the reevaluation shall be sufficient to determine the student’s individual needs, educational progress and achievement, the student’s ability to participate in instructional programs in regular education and the student’s continuing eligibility for special education. The results of any reevaluations must be addressed by the committee on special education in a meeting to review and, as appropriate, revise the student’s IEP. To the extent possible, the school district shall encourage the consolidation of reevaluation meetings for the student and other committee on special education meetings for the student.

(5) Determination of needed evaluation data.

(i) As a part of an initial evaluation, if appropriate, and as part of any reevaluation in accordance with section 200.4(b)(4) of this Part, a group that includes the committee on special education, and other qualified professionals, as appropriate, shall review existing evaluation data on the student including evaluations and information provided by the parents of the student, current classroom-based assessments, local or State assessments, classroom-based observations, and observations by teachers and related services providers. The group may conduct its review without a meeting.

(ii) On the basis of that review,