Policy 99-04

December 1999

SUBJECT: Amendments to Conform New York State Education Law to the Individuals with Disabilities Education Act

On July 20, 1999, the Governor signed into law legislation that conforms New York State Education Law to the Individuals with Disabilities Education Act (IDEA) and the Part 300 Federal Regulations. Effective July 1999, Chapter 311 of the Laws of 1999 amends:

• § 3214 relating to the general procedures for student discipline.

• § 4002 relating to the definition of related services.

• § 4401 relating to the definitions of "student with a disability," "related services" and transition services."

• § 4402 relating to the composition of the Committee on Special Education and the Subcommittee on Special Education.

• § 4402 relating to the role of the Committee on Special Education and students with disabilities subject to discipline.

• § 4403 relating to the Commissioner’s Advisory Panel for Special Education Services.

• § 4403 relating to State complaint procedures.

• § 4404 relating to procedures and timelines for expedited impartial hearings and pendency.

• § 4404 relating to a student presumed to have a disability for discipline purposes.

• § 4404-a relating to mediation.

• § 4410 relating to the Committee on Preschool Special Education and mediation.

This memorandum provides a summary of these Education Law amendments and questions and answers relating specifically to those provisions. A copy of Chapter 311 of the Laws of 1999 is attached. The Department has proposed amendments to Part 200 of the Regulations of the Commissioner of Education to conform the State’s rules and regulations to the federal regulations.

If you have any questions about this information, please contact the Office of Vocational and Educational Services for Individuals with Disabilities (VESID), Special Education Policy Unit, at 518-473-2878 or your Regional Associate at one of the following VESID Special Education Quality Assurance Regional Offices:

Eastern Regional Office (518) 486-6366

Hudson Valley Regional Office (914) 245-0010

Long Island Regional Office (516) 884-8530

New York City Regional Office (718) 722-4544

Western Regional Office (716) 344-2112, ext. 420

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DEFINITIONS RELATING TO SPECIAL EDUCATION

Several definitions relating to special education have been amended to ensure that Education Law conforms to IDEA and the federal regulations implementing IDEA.

Section 4002 (Article 81) of the Education Law is amended relating to the definition of "related services" to include rehabilitation counseling services, orientation and mobility services, and assistive technology services as defined under federal law.

Section 4401 (Article 89) of the Education Law is amended relating to the definitions of:

• "child with a disability" to add that lack of instruction in reading or mathematics or limited English proficiency shall not be the determinant factor in identifying a student as a student with a disability.

• "special education" to clarify that special education is provided at no cost to the parent to meet the unique needs of a child with a disability, and that the term special education includes "travel training" and "assistive technology devices."

• "related services" to include school health services, school social work, assistive technology services as defined in federal law, orientation and mobility services, parent counseling and training, other appropriate developmental, corrective or other support services and appropriate access to recreation.

• "transition services" to include related services.

Travel training means providing instruction, as appropriate, to children with significant cognitive disabilities, and any other children with disabilities who require this instruction, to enable them to develop an awareness of the environment in which they live, and learn the skills necessary 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).

"Orientation and mobility services" is defined in the federal regulations (section 300.24) as "...services provided to blind or visually impaired students by qualified personnel to enable those students to attain systematic orientation to and safe movement within their environments in school, home and community; and includes teaching students the following as appropriate:

• Spatial and environmental concepts and use of information received by the senses (such as sound, temperature and vibrations) to establish, maintain, or regain orientation and line of travel (e.g., using sound at a traffic light to cross the street);

• To use the long cane to supplement visual travel skills or as a tool for safely negotiating the environment for students with no available travel vision;

• To understand and use remaining vision and distance low vision aids; and

• Other concepts, techniques and tools."

Sections 4402 and 4410 of the Education Law are amended relating to the required members of the Committee on Special Education (CSE), the Subcommittee on Special Education and the Preschool Committee on Special Education (CPSE) as follows:

• The members of the Committee on Special Education include:

• the parents or persons in parental relationship to the student.

• one regular education teacher of the student whenever the student is or may be participating in the regular education environment.

• one special education teacher of the student or, if appropriate, a special education provider of the student.

• a school psychologist.

• a representative of the school district who is qualified to provide or supervise special education and who is knowledgeable about the general curriculum and the availability of resources of the school district.

• an individual who can interpret the instructional implications of evaluation results.

• a school physician (if specifically requested in writing by the parent or other person in parental relationship to the student or by a member of the Committee at least 72 hours prior to the meeting).

• an additional parent member of a student with a disability residing in the school district or a neighboring school district, provided that such parent is not a required member if the parent of the student requests that the additional parent member not participate.

• other persons having knowledge or special expertise regarding the student as the school district or the parents or persons in parental relationship to the student shall designate.

• if appropriate, the student.

• The members of the Subcommittee on Special Education include:

• the parents or persons in parental relationship to the student.

• one regular education teacher of the student whenever the student is or may be participating in the regular education environment.

• one special education teacher of the student or, if appropriate, a special education provider of the student.

• a school psychologist, whenever a new psychological evaluation is reviewed or a change to a more restrictive program option is considered.

• a representative of the school district who is qualified to provide or supervise special education and who is knowledgeable about the general curriculum and the availability of resources of the school district.

• an individual who can interpret the instructional implications of evaluation results.

• other persons having knowledge or special expertise regarding the student as the school district or the parents or persons in parental relationship to the student shall designate.

• if appropriate, the student.

• The members of the Committee on Preschool Special Education include:

• the parents or persons in parental relationship to the preschool child.

• a regular education teacher of the child whenever the child is or may be participating in the regular education environment.

• a special education teacher of the child, or, if appropriate, a special education provider of the child.

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

• 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 requests that the additional parent member not participate.

• an individual who can interpret the instructional implications of evaluation results.

• other persons having knowledge or special expertise regarding the child as the school district or the parents or persons in parental relationship to the child shall designate.

• 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.

• a representative of the municipality of the preschool child’s residence (attendance not required for a quorum).

• In determining the Committee membership, a school district may decide that:

• A member appointed as an individual who can interpret the instructional implications of evaluation results may also be the individual appointed as one of the following Committee members, when such members are determined by the school district to have the knowledge and expertise to do so:

• the regular education teacher of the student;

• the special education teacher of the student or, if appropriate, a special education provider of the student;

• the school psychologist;

• the representative of the school district who is qualified to provide or supervise special education and who is knowledgeable about the general curriculum and the availability of the resources of the school district; or

• a person having knowledge or special expertise regarding the student such as the school district or the parents or persons in parental relationship to the student shall designate.

• The special education teacher or the school psychologist may also serve as the member appointed as the representative of the school district who is qualified to provide or supervise special education and who is knowledgeable about the general curriculum and the availability of resources of the school district. This provision applies only to the Committee on Special Education or the Subcommittee on Special Education and does not apply to the Committee on Preschool Special Education.

• The regular education teacher of the student shall participate in the development, review and revision of the IEP for the student, to the extent required under federal law.

• The school district must inform a student’s parents, through notice, of their right to request that an additional parent member not participate at any meeting of the Committee regarding their child.

 

Education Law continues to provide for the participation of the additional parent member on the CSE or CPSE. In selecting the parent member, the district may select a parent from its own school district or a neighboring district. The parent of the student may, at his or her discretion, decline the participation of the additional parent member in any meeting regarding his or her child. It is the responsibility of the school district to inform the parent of the student, in the meeting notice, that the parent member will participate in the CSE or CPSE meeting unless the parent of the student informs the district that he or she does not want the additional parent member present.

The additional parent member is an important required member of the Committee who provides another perspective to the multidisciplinary team. However, if the parents of the student are uncomfortable with having another parent at their child’s meeting, they now have the right to so decline. In this case, a Committee meeting that is held without the parent member present will be considered legal. In implementing this provision of law, a school district should not, under any circumstances, persuade parents to decline the participation of the additional parent member for purposes of ease in scheduling Committee meetings or arranging for parent members.

The individual who can interpret the instructional implications of the evaluation results may also be serving another role on the Committee on Special Education, the Subcommittee on Special Education or the Committee on Preschool Special Education as indicated above. This individual fulfills an important role in linking evaluation results to instruction so the IEP that is developed for the student addresses what and how best to teach the student. The selection of this individual may vary from student to student, depending on the types of evaluations conducted.

For the Committee on Special Education and the Subcommittee on Special Education, the school district representative may also be the student’s special education teacher or the school psychologist, if he or she also meets the criteria for the school district representative (can provide or supervise special education and is knowledgeable about the general education curriculum and the availability of district resources). (Note that this provision does not apply to the Committee on Preschool Special Education.) Federal guidance requires that the school district representative have the authority to commit agency resources and be able to ensure that whatever services are set out in the IEP will actually be provided. (See 34 CFR 300, Question 22).

To ensure that a Committee includes the appropriate individuals with differing perspectives who can contribute to discussions about a student’s needs and recommendations to address those needs, a school district should only determine that an individual will serve more than one of the required roles on the Committee if it is in the best interest of the student to do so.

Yes. If the parent or the school district determines that an individual has knowledge or special expertise regarding the student, that individual participates in the decision-making process along with the other required members. Prior law provided without qualification, that the parent or the school district could have other individuals as members of the Committee at the discretion of the parent or the district. Federal guidance states that, generally, any individuals such as representatives of teacher organizations or attorneys would not be appropriate members of the Committee since they would not possess knowledge or expertise regarding the child (see 34 CFR 300, Questions 28 and 29).

Any individual, including the parent of the student, who attends a meeting as a required member participates in the decision-making process. There may be other individuals who are invited to participate in a meeting (e.g., a representative of a private school or a friend of the family invited to provide support to the family). These other individuals are expected to fully participate in the discussions and contribute to the recommendations.

Guidance from the U.S. Department of Education indicates that decisions made at CSE, CPSE and Subcommittee meetings are to be made based upon informed participation of all members and consensus agreement to the recommendations.

"The IEP meeting serves as a communication vehicle between parents and school personnel, and enables them, as equal participants, to make joint, informed decisions regarding the (1) child’s needs and appropriate goals; (2) extent to which the child will be involved in the general curriculum and participate in the regular education environment and State and districtwide assessments; and (3) services needed to support that involvement and participation and to achieve agreed-upon goals.... The IEP team should work toward consensus, but the public agency has ultimate responsibility to ensure that the IEP includes the services that the child needs in order to receive free appropriate public education (FAPE). It is not appropriate to make IEP decisions based upon a majority vote. ...." (emphasis added) (34 CFR 300, Question 9).

At least one of the student’s regular education teachers who is or may be responsible for implementing a portion of the IEP must participate in the IEP meetings if the student is, or may be, participating in the regular education environment. The regular education teacher would participate in the development, review and revision of the student’s IEP, including assisting in (1) determining appropriate positive behavioral interventions and strategies for the student; and (2) determining supplementary aids and services, program modifications, and supports for school personnel that will be provided for the student.

Depending on the student’s needs and the purpose of the specific IEP meeting, the regular education teacher may not need to participate in all decisions made as part of the meeting, be present throughout the entire meeting, or attend every meeting. On a case-by-case basis, the school and the parent should discuss and try to reach agreement on the extent of the regular education teacher’s participation at the Committee meetings. While only one of the student’s regular education teachers is required to participate in the Committee meetings, the school district is strongly encouraged to seek input from any other teachers who will not be attending.

DISCIPLINE OF STUDENTS WITH DISABILITIES

Section 3214 of the Education Law has been retitled "General Procedures for Student Discipline" and a new subdivision (g) has been added relating to the discipline of students with disabilities and students presumed to have a disability for discipline purposes.

• Laws and regulations governing suspensions of students with disabilities. Students with disabilities and students presumed to have disabilities for discipline purposes may be suspended for violation of school rules only in accordance with Section 3214 of the Education Law, Part 300 of the Code of Federal Regulations and the Individuals with Disabilities Education Act. In the event there is a conflict between State law and federal law and regulation, the federal statute and regulations shall govern.

• Student presumed to have a disability for discipline purposes. A "student presumed to have a disability for discipline purposes" is defined as a student who the school district is deemed to have knowledge that the student had a disability before the occurrence of the behavior that precipitated disciplinary action. The criteria to determine if the school district has knowledge are the criteria set in Section 1415(k)(8) of the Individuals with Disabilities Education Act (IDEA) and the federal regulations implementing that statute. (See question 4 ).

• Authority of school personnel. The board of trustees or board of education of any school district, a district superintendent of schools or a building principal may, in the course of a disciplinary action, suspend or order the placement of a student with a disability into an appropriate interim alternative educational setting for a period not to exceed five consecutive school days, except when such removal would result in a change of placement under federal law.
  
  The superintendent of a school district, either directly or upon the recommendation of a hearing officer appointed pursuant to Section 3214 of the Education Law (i.e., "suspension hearing officer"), may, in the course of a disciplinary action, suspend or order the change of placement of a student with a disability to an interim alternative educational setting for up to 10 consecutive school days except when such removal would result in a change of placement under federal law.

• Interim alternative educational placements. If a student carries a weapon to school or to a school function or the student knowingly possesses or uses illegal drugs or sells or solicits the sale of a controlled substance while at school or a school function, the superintendent of schools, either directly or upon the recommendation of a "suspension hearing officer" appointed pursuant to Section 3214 of the Education Law, may order the change of placement of a student with a disability for up to 45 calendar days in accordance with Section 1415(k)(1) of IDEA.
  
  Where there is substantial evidence that maintaining the current placement of the student is substantially likely to result in injury to the student or to others, an impartial hearing officer may order the change of placement of a student with a disability to an appropriate interim alternative educational setting for not more than 45 calendar days in accordance with Sections 1415(k)(2) and 1415(k)(7) of IDEA and the federal regulations implementing IDEA. This procedure may be repeated, as necessary.

• Manifestation determinations. Upon a determination by the Committee on Special Education (CSE) that the behavior of the student was not a manifestation of the student’s disability (i.e., no nexus), the student may be disciplined in the same manner as a nondisabled student, except that the student must continue to receive services to the extent required under federal law and regulations.
  
  A student with a disability may not be suspended or removed from his or her current educational program for violation of school rules following a determination by the Committee on Special Education that the behavior is a manifestation of the student’s disability, except as authorized under federal law and regulations.

• Authority to develop regulations. The Commissioner is authorized to adopt regulations that coordinate the procedures required for the discipline of students with disabilities and students presumed to have a disability for discipline purposes with the general procedures for student discipline.

• Involuntary transfers. The procedures for involuntary transfer pursuant to Section 3214(5) of the Education Law do not permit the involuntary transfer of a student determined to be a student with a disability or a student presumed to have a disability for discipline purposes.

Section 4402 of the Education Law is amended regarding the duties of the Committee on Special Education (CSE) relating to the discipline of students with disabilities and students presumed to have disabilities for discipline purposes. The Commissioner of Education is authorized to develop regulations relating to a CSE’s responsibility to:

• Develop a functional behavioral assessment plan; review or revise, as appropriate, a behavioral intervention plan; develop appropriate behavioral interventions; and review and revise, as appropriate, the implementation of a behavioral intervention plan to address the behavior of a student with a disability who is alleged to have engaged in misconduct.

• Conduct a review to determine whether the behavior of a student with a disability which violates the applicable school rules or code of conduct and results in a change of placement under federal law (including placements in interim alternative educational settings) was a manifestation of the student’s disability. Other qualified school district personnel may participate in such review.

• Determine the services to be provided in the interim alternative educational placement for a student with a disability who carries to or possesses a weapon at school, on school premises, or to or at a school function, or knowingly possesses or uses illegal drugs or sells or solicits the sale of a controlled substance while at school or a school function.

• Determine the services to be provided to a student with a disability who is removed because of behavior that has been determined not to be a manifestation of the student’s disability.

• Conduct expedited evaluations, under the circumstances required in federal law and regulations; and conduct such reviews and make determinations regarding students presumed to have a disability for discipline purposes.

Section 4402 is amended to authorize the Commissioner to promulgate regulations establishing procedures and timelines for expedited impartial hearings in cases involving:

• a review of a decision that the behavior of a student with a disability was not a manifestation of the student’s disability;

• a review of an interim alternative educational setting or other placement (to the extent required by federal law); and

• a request by the school district for a determination that maintaining the current educational placement of the student is substantially likely to result in injury to the student or to others.

Section 4402 amends the pendency placement of students during due process proceedings, as follows:

• For students placed in an interim alternative educational setting, the student shall remain in the interim alternative educational setting pending the decision of the hearing officer or until expiration of the time period of the student’s interim alternative placement, whichever comes first, unless the local school district and the parents otherwise agree.

• After the expiration of the interim alternative educational placement, if the school district proposes to change the student’s placement, during the pendency of any proceedings to challenge the proposed change in placement the student must return to and remain in the current educational placement, which is the student’s placement prior to the interim alternative educational setting

• unless the local school district and the parents otherwise agree; or

• unless, as a result of a decision by an impartial hearing officer in an expedited hearing, the interim alternative educational setting is extended or another appropriate placement is ordered for a period not to exceed 45 calendar days based on a determination that maintaining the current educational placement of the student is substantially likely to result in injury to the student or to others.

• Such procedure for extension of an interim alternative educational setting may be repeated as necessary.

Section 300.519 of the Code of Federal Regulations states that "for purposes of removals of a child with a disability from the child’s current educational placement ..., a change of placement occurs if the removal is for more than 10 consecutive school days; or the child is subjected to a series of removals that constitute a pattern because they cumulate to more than 10 school days in a school year, and because of factors such as the length of each removal, the total amount of time the child is removed, and the proximity of the removals to one another."

Section 300.523 of the Code of Federal Regulations requires that immediately, if possible, but in no case later than 10 school days after the date on which the decision to take disciplinary action that constitutes a change in placement is made, a review must be conducted of the relationship between the child's disability and the behavior subject to the disciplinary action (formerly known as the "nexus review"). The Committee on Special Education (CSE) and other qualified personnel must conduct this review in a meeting. In carrying out this review, the CSE and other qualified personnel may determine that the behavior of the child was not a manifestation of the child's disability only if the CSE and other qualified personnel:

1. First considered, in terms of the behavior subject to disciplinary action, all relevant information, including:

• evaluation and diagnostic results, including the results or other relevant information supplied by the parents of the child;

• observations of the child; and

• the child's Individualized Education Program (IEP) and placement.

    2.    Then determined that in relationship to the behavior subject to disciplinary action:

• the child's IEP and placement were appropriate and the special education services, supplementary aids and services, and behavior intervention strategies were provided consistent with the child's IEP and placement;

• the child's disability did not impair the ability of the child to understand the impact and consequences of the behavior subject to disciplinary action; and

• the child's disability did not impair the ability of the child to control the behavior subject to disciplinary action.

If the CSE and other qualified personnel determine that any of the above standards in the manifestation review were not met, the behavior must be considered a manifestation of the child's disability. In conducting this review, if a school district identifies deficiencies in the child's IEP or placement or in its implementation, it must take immediate steps to remedy those deficiencies.

An interim alternative educational setting in which a child is placed must be selected so as to enable the child to continue to progress in the general curriculum, although in another setting, and to continue to receive those services and modifications, including those described in the child's current IEP, that will enable the child to meet the goals set out in the IEP; and must include services and modifications to address the behavior that resulted in the disciplinary action that are designed to prevent the behavior from recurring.

Section 300.527 of the Code of Federal Regulations states that a school district must be deemed to have knowledge that a student is a student with a disability if:

• the parent of the child has expressed concern in writing (or orally if the parent does not know how to write or has a disability that prevents a written statement) to personnel of the school that the child is in need of special education and related services;

• the behavior or performance of the child demonstrates the need for these services;

• the parent of the child has requested an evaluation of the child; or

• the teacher of the child, or other personnel of the school, has expressed concern about the behavior or performance of the child to the director of special education of the school or to other personnel in accordance with the school’s established child find or special education referral system.

Section 4404-a of the Education Law is amended to add the following requirements related to mediation:

• The Commissioner, in consultation with the Office of Court Administration, must assure that a list of qualified mediators, knowledgeable in the laws and regulations relating to the provision of special education and related services, is maintained.

• Mediators, if not selected through a rotational selection process, must be selected by mutual agreement of both parties to the mediation.

• To explain the benefits of mediation and to encourage parents to use the mediation process to resolve disputes, a school district may establish procedures to require parents who elect not to use the mediation process to meet, at a time and place convenient to the parents, with a disinterested party who is under contract with a Community Dispute Resolution Center (CDRC).

• Each session in the mediation process must be scheduled in a timely manner and held in a location that is convenient to the parties to the dispute.

• An agreement reached by the parties to the dispute in the mediation process must be set forth in a written mediation agreement.

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

• Discussions that occur in the mediation process must be confidential and may not be used as evidence in any subsequent proceedings pursuant to Section 4404 of the Education Law or in any subsequent civil actions or proceedings.

• The parties to the mediation process may be required to sign a confidentiality pledge prior to the commencement of the process.

• The provisions of Section 4404-a of the Education Law relating to mediation shall not diminish, deny or delay, or limit any rights of the parent to request an impartial hearing.

Section 4410 of Education Law is amended to add the following requirements related to mediation:

• Mediation shall be available to parents or persons in parental relationship of a preschool child with a disability.

Section 4403 of the Education Law is amended to authorize the Commissioner to adopt regulations prescribing the State complaint procedures when an individual or organization files a written complaint alleging that a public agency has violated Part B of the Individuals with Disabilities Education Act.

Effective July 1999, the role of the U.S. Department of Education in the review of State complaints was eliminated. Therefore, all complaints must be resolved at the State level.

The results of the complaint investigation may not be appealed. However, nothing prohibits the school or the parent from requesting a due process hearing regarding the issue raised in the complaint investigation if the issue involves the rights of an individual student.

No.

Section 4403 of Education Law is amended in relation to the composition and responsibilities of the Commissioner’s Advisory Panel for Special Education Services.

• Membership: The majority of the members of the advisory panel must be individuals with disabilities or parents of children with disabilities. The membership of the Commissioner’s Advisory Panel for Special Education Services must include:

• individuals with disabilities

• teachers of children with disabilities

• parents or persons in parental relationship of children with disabilities

• State and local educational officials

• representatives of State or regional associations concerned with the education of children with disabilities

• representatives of institutions of higher education that prepare special education teachers or administrators and/or related services personnel

• administrators of programs for students with disabilities

• representatives of other State agencies involved in the financing or delivery of related services to children with disabilities

• representatives of nonpublic schools

• upon establishment of such schools, representatives of public charter schools

• at least one representative of a vocational, community or business organization concerned with the provision of transition services to students with disabilities

• representatives of State juvenile and adult corrections agencies

Responsibilities: The responsibilities of the Commissioner’s Advisory Panel for Special Education Services are to:

• Advise the Governor, Legislature and Commissioner of Education of unmet needs within the State:

• in the education of children with disabilities;

• in developing procedures for evaluation of the special education system and the reporting of data as required in federal law;

• in developing corrective action plans to address findings identified in federal monitoring reports;

• in developing and implementing policies relating to coordination of services; and

• on the education of students with disabilities who have been convicted as adults and incarcerated in adult prisons.

• Comment publicly on any rules or regulations proposed for issuance by the Commissioner regarding the education of children with disabilities and the procedure for distribution of funds.

APPENDIX A

CHAPTER 311 OF THE LAWS OF 1999