|
|
THE STATE
EDUCATION DEPARTMENT / THE UNIVERSITY
OF THE STATE OF NEW YORK / ALBANY, NY 12234 |
|
TO: |
EMSC-VESID
Committee |
|
FROM: |
Rebecca H. Cort
|
|
SUBJECT: |
Proposed Amendment to Commissioner’s Regulations
Relating to the 2004 Reauthorization of the Individuals with Disabilities
Education Act (IDEA)
|
|
DATE: |
November 14, 2005
|
|
STRATEGIC
GOAL: |
Goals 1 and 2
|
|
AUTHORIZATION(S): |
|
SUMMARY
Issue for
Decision
Should the
Board of Regents adopt as a permanent rule the proposed amendment to sections
100.2, 200.1, 200.2, 200.3, 200.4, 200.5, 200.6, 200.7, 200.14, 200.16, 201.2,
201.3, 201.4, 201.5, 201.7, 201.8, 201.9, 201.10 and 201.11 of the Regulations
of the Commissioner to align State regulations to the reauthorized IDEA?
Reason(s) for
Consideration
Implementation of Regents
policy.
Proposed
Handling
Proposed
regulations will be presented to the EMSC-VESID Committee in December 2005 for
adoption as a permanent rule and as a second emergency measure to ensure that
the September emergency adoption remains continuously in effect until the
effective date of the regulation's permanent adoption. A Statement of Facts and
Circumstances Which Necessitate Emergency Action is attached.
Procedural
History
A Notice of
Proposed Rule Making was published in the State Register on June 8, 2005. After having discussed proposed
amendments in June 2005 and revised amendments based on public comment at the
September Regents meeting, the Board of Regents adopted the revised proposed
amendment as an emergency measure at the September Regents meeting, effective
September 13, 2005. A Notice of
Emergency Adoption and Proposed Rule Making was published in the State Register
on September 28, 2005.
Background
Information
The purpose of the proposed
amendment is to conform State regulations to IDEA and State law relating to the
provision of special education services.
IDEA was reauthorized in December 2004 and most of its provisions became
effective July 1, 2005. Chapter 352
of the Laws of 2005, effective July 1, 2005, amended the Education Law to ensure
that the State will be in compliance with the provisions of the reauthorized
IDEA in the 2005-2006 school year.
The State and school districts must implement the new requirements in
IDEA and any current federal regulations that do not conflict with IDEA. The revised proposed amendments have
been further revised only to make nonsubstantial technical corrections.
Supporting materials for the proposed amendment are available upon
request from the Secretary to the Board of Regents.
Recommendation
VOTED: That subparagraph (iv) of paragraph (4) and
subparagraphs (i), (iii), (iv) and (xvii) of paragraph (7) of subdivision (x)
and subparagraph (iii) of paragraph (1) of subdivision (dd) of section 100.2 of
the Regulations of the Commissioner of Education be amended; that Part 101 be
repealed; that subdivisions (e), (s), (t), (x), (dd), (ii), (oo), (qq), (ss),
(ww), (zz), (ccc) and (fff) of section 200.1 be amended and new subdivisions
(hhh), (iii), (jjj) and (kkk) of section 200.1 be added; that subdivisions (a),
(b), (d), (e), (h) and (i) of section 200.2 be amended; that sections 200.3,
200.4 and 200.5 be amended; that a new subdivision (m) be added to section
200.6; that paragraph (4) of subdivision (c) and subdivision (d) of section
200.7 be amended; that subdivisions (d) and (e) of section 200.14 be amended;
that section 200.16 be amended; that subdivisions (k) and (l) of section 201.2
be amended and a new subdivision (m) be added and subdivisions (m) through (r)
of section 201.2 be relettered as (n) through (s); that sections 201.3, 201.4
and 201.5 be amended; that subdivisions (d) and (e) of section 201.7 be amended
and a new subdivision (f) be added to section 201.7; that section 201.8 be
amended; that subdivisions (b) and (c) of section 201.9 be amended; that
subdivisions (c), (d) and (e) of section 201.10 and subdivisions (b) and (d) of
section 201.11 be amended, as submitted, effective December 29,
2005.
VOTED: That subparagraph (iv) of paragraph (4) and
subparagraphs (i), (iii), (iv) and (xvii) of paragraph (7) of subdivision (x)
and subparagraph (iii) of paragraph (1) of subdivision (dd) of section 100.2 of
the Regulations of the Commissioner of Education be amended; that Part 101 be
repealed; that subdivisions (e), (s), (t), (x), (dd), (ii), (oo), (qq), (ss),
(ww), (zz), (ccc) and (fff) of section 200.1 be amended and new subdivisions
(hhh), (iii), (jjj) and (kkk) of section 200.1 be added; that subdivisions (a),
(b), (d), (e), (h) and (i) of section 200.2 be amended; that sections 200.3,
200.4 and 200.5 be amended; that a new subdivision (m) be added to section
200.6; that paragraph (4) of subdivision (c) and subdivision (d) of section
200.7 be amended; that subdivisions (d) and (e) of section 200.14 be amended;
that section 200.16 be amended; that subdivisions (k) and (l) of section 201.2
be amended and a new subdivision (m) be added and subdivisions (m) through (r)
of section 201.2 be relettered as (n) through (s); that sections 201.3, 201.4
and 201.5 be amended; that subdivisions (d) and (e) of section 201.7 be amended
and a new subdivision (f) be added to section 201.7; that section 201.8 be
amended; that subdivisions (b) and (c) of section 201.9 be amended; that
subdivisions (c), (d) and (e) of section 201.10 and subdivisions (b) and (d) of
section 201.11 be amended, as submitted, effective December 12, 2005, as
an emergency action upon a finding by the Board of Regents that such action is
necessary for the preservation of the general welfare in order to ensure that
the amendments previously adopted by emergency action to conform the
Commissioner's Regulations to the requirements of IDEA as amended by Public Law
108-446 and Chapter 352 of the Laws of 2005 remain continuously in effect until
the effective date of their adoption as a permanent rule, and thereby ensure the rights of students
with disabilities and their parents consistent with federal and State statutes
and ensure compliance with requirements for receipt of federal
funds.
Timetable for
Implementation
Pursuant to
the State Administrative Procedure Act, the December permanent adoption cannot
become effective until after its publication in the State Register on December
28, 2005. However, the September
emergency adoption will expire on December 11, 2005. Therefore, in addition to the December
permanent adoption, a second emergency adoption is necessary at this time to
ensure that the amendments remain continuously in effect until the effective
date of their permanent adoption.
PROPOSED REPEAL OF PART 101 AND AMENDMENT OF
SECTIONS 100.2, 200.1, THROUGH 200.7, 200.14, 200.16, 201.2 THROUGH 201.5 AND
201.7 THROUGH 201.11 OF THE REGULATIONS OF THE COMMISSIONER OF EDUCATION
PURSUANT TO SECTIONS 207, 3208, 3209, 3214, 3602-c, 3713, 4002, 4308, 4355,
4401, 4402, 4403, 4404, 4404-a AND 4410 OF THE EDUCATION LAW AND CHAPTERS 119
AND 352 OF THE LAWS OF 2005, RELATING TO THE PROVISION OF SPECIAL EDUCATION
PROGRAMS AND SERVICES TO STUDENTS WITH DISABILITIES
STATEMENT OF FACTS AND
CIRCUMSTANCES WHICH NECESSITATE EMERGENCY ACTION
The purpose of the proposed amendment is to conform the Regulations of
the Commissioner of Education to the federal Individuals with Disabilities
Education Act (IDEA), as amended by Public Law 108-446, and to Chapter 352 of
the Laws of 2005. IDEA was
reauthorized in December 2004 and most of its provisions became effective July
1, 2005. Chapter 352 of the Laws of
2005, effective July 1, 2005, amended the Education Law to ensure that the State
will be in compliance with the provisions of the reauthorized IDEA in the
2005-2006 school year.
A Notice of
Proposed Rule Making was published in the State Register on June 8, 2005. Since its publication, the proposed
amendment has been substantially revised in response to public comment and
adopted through emergency action by the Board of Regents, effective September
13, 2005. A Notice of
Emergency Adoption and Proposed Rule Making was published in the State Register
on September 28, 2005.
The proposed
amendment was adopted as a permanent rule at the December 8-9, 2005 meeting of
the Board of Regents, which is the first scheduled meeting after expiration of
the 45-day public comment period mandated by the State Administrative Procedure
Act. Pursuant to SAPA section
202(5), the permanent adoption cannot become effective until after its
publication in the State Register on December 28, 2005. However, the September emergency
adoption will expire on December 11, 2005, 90 days after its filing with the
Department of State on September 13, 2005.
A second emergency adoption is therefore necessary for the preservation
of the general welfare to ensure that the amendment remains continuously in
effect until the effective date of its adoption as a permanent rule.
Emergency action to adopt the proposed rule is necessary for the
preservation of the general welfare in order to ensure that the
amendments previously adopted by emergency action to conform the
Commissioner's Regulations to the requirements of the federal IDEA, as amended
by Public Law 108-446 and Chapter 352 of the Laws of 2005, remain continuously
in effect until the effective date of their adoption as a permanent rule, and
thereby ensure the rights of
students with disabilities and their parents consistent with federal and State
statutes and ensure compliance with requirements for receipt of federal
funds.
PROPOSED REPEAL OF PART 101 AND AMENDMENT OF
SECTIONS 100.2, 200.1 THROUGH 200.7, 200.14, 200.16, 201.2 THROUGH 201.5 AND
201.7 THROUGH 201.11 OF THE REGULATIONS OF THE COMMISSIONER OF EDUCATION
PURSUANT TO SECTIONS 207, 3208, 3209, 3214, 302-C, 3713, 4002, 4308, 4355, 4401,
4402, AS AMENDED BY CHAPTER 408 OF THE LAWS OF 2002, 4403, 4404, 4404-a AND 4410
OF THE EDUCATION LAW CHAPTERS 119 AND 352 OF THE LAWS OF 2005, RELATING TO THE
PROVISION OF SPECIAL EDUCATION PROGRAMS AND SERVICES TO STUDENTS WITH
DISABILITIES
ASSESSMENT OF PUBLIC
COMMENT
Since publication of a Notice of Emergency Adoption and Revised Rule
Making in the State Register on September 28, 2005, the State Education
Department received the following comments.
1.
COMMENTS:
Parent member. The
regulations should be revised to require the additional parent member of the
Committee on Special Education (CSE) or Committee on Preschool Special Education
(CPSE) to attend a meeting only when requested by the parent.
DEPARTMENT RESPONSE:
Sections 4402 and 4410 of the Education Law require that the additional
parent member of the CSE and CPSE attend the meeting unless the parent of the
student declines the participation of the additional parent member. The Regulations of the Commissioner
cannot be revised to address this recommendation without statutory
authority.
2.
COMMENTS:
Related
services. Support was noted for
the addition of “early identification and assessment of disabling conditions in
students” in the proposed definition of related services.
The proposed
definition of “health services,” should be revised to recognize that mental
health services are a critical component in the array of health services schools
may offer to their students, especially students with disabilities, in order to
ensure that they receive a free appropriate public education in the least
restrictive environment.
DEPARTMENT RESPONSE:
Because of the nature of the first comment, no response is
necessary. No changes have been
made to the definition of “health services” since the current definition of
related services includes psychological services.
3.
COMMENTS:
Initial
evaluation. The addition of a
60 calendar day time period to complete the initial evaluation and eligibility
determination should be deleted from the proposed regulations, since this would
lengthen the time to evaluate, determine eligibility and provide services,
leaving students without the appropriate supports for a longer time frame.
The proposed
regulations should be revised to establish a maximum time period not to exceed
15 days beyond the 60 calendar day time period for a student who enrolls in a
school served by the school district after the 60 calendar day time period
begins.
DEPARTMENT RESPONSE:
Under the proposed regulation,
the school must complete the initial evaluation and make the determination of
whether the student has a disability within 60 calendar days for a school age
student (30 school days for a preschool age child). The requirement that the school age
student receive services as recommended on his or her IEP within 60 school days
has been retained. Therefore, the
proposed timeline to complete the initial evaluation establishes a maximum
period of time allowed for the completion of the initial evaluation and should
expedite, rather than delay, the provision of services to students. The proposed regulations were not
revised to add a maximum extension time period of 15 calendar days beyond the 60
calendar days for transfer students, since federal law allows the parent and
school district to reach an agreement on the specific time for the
extension.
4.
COMMENTS:
Reevaluations. One organization opposed the proposed
regulatory amendment to section 200.4(c)(4) stating that the current requirement
that an evaluation be done greatly assists the process of coordinating services
with the adult system. Many adult
services require formal evaluations to determine eligibility. Without this evaluation, the transition
to postsecondary goals is much more difficult.
DEPARTMENT RESPONSE:
The regulations that were in effect prior to the revised emergency
regulations did not require that a reevaluation be conducted when a student’s
eligibility for special education services is ending because of graduation or
aging out. The proposed regulation,
which is consistent with IDEA, does not propose a change to the reevaluation
requirement, but does propose to add an additional requirement for a summary of
performance.
5.
COMMENTS:
Individualized Education
Program (IEP). Support was
noted for the requirement that present levels of performance and IEP
recommendations consider a student’s “academic, developmental and functional
needs” since many students with social, behavioral and emotional disabilities
experience deficits in functional performance and these requirements will assure
realistic and meaningful supports and services that will improve educational
performance in school and increase students’ successful transitions to adult
life.
Support was
given for proposed language in section 200.4(d), which requires the recommended
programs and services on a student’s IEP to be, to the extent practicable, based
on peer-reviewed research, since research-based practices based on peer review
will ensure that children are receiving quality services.
DEPARTMENT RESPONSE:
Because of the
nature of these comments, no response is necessary.
6.
COMMENTS:
IEP
Goals. The Department should
not eliminate the requirement for short-term objectives and benchmarks since
annual goals on IEPs are often written to require “improvement,” which is a
subjective term. Special education
teachers need the guidance of short-term objectives in order to design
appropriate methods to help students with disabilities.
DEPARTMENT RESPONSE:
The proposed regulations have been written
to ensure that the annual goals on a student’s IEP be measurable and to require
each annual goal to include the evaluative criteria, evaluation procedures and
schedules to be used to measure progress toward the annual goal. An annual goal that simply identifies
“improvement” without providing a clear statement as to the extent of
improvement anticipated would not meet the regulatory requirements in section
200.4(d).
7.
COMMENTS:
Transition
services. The proposed
requirement that transition services be on the IEP to be in effect when the
student is age 15 (and at a younger age, if determined appropriate) was
supported, since early delivery of transition services is likely to increase
successful transitions of youth with disabilities to post school activities.
The Department
should consider requiring transition planning and services to begin at the
younger age of 13 to precede the student’s choice of high school.
Proposed
language in section 200.4(d) which would add “appropriate measurable
postsecondary goals based upon age appropriate transition assessments relating
to training, education, employment and, where appropriate, independent living
skills…” was supported with the comment that utilizing assessment tools to
create appropriate measurable postsecondary goals will ensure that youth have
access to meaningful services and supports.
DEPARTMENT RESPONSE:
Because of the nature of the first and third comments, no response is
necessary.
No revisions to the proposed regulations
were made to lower the age to 13, since the proposed retains the authority of
the CSE to determine if transition services should be provided at a younger
age.
8.
COMMENTS:
Changes to the IEP after the annual review meeting. The regulations should be revised to
allow the parent, special education teacher, regular education teacher and local
educational agency representative to agree to make changes to an IEP after the
annual review. For one school
district, this was calculated to result in approximately 867 hours of
instructional time that could otherwise be spent with students and approximately
$3,600 annually in costs for substitute teachers.
Section 200.4(g) should be revised to state that “the
parent shall receive prior written notice of any CSE meeting to discuss proposed
changes to the IEP” rather than requiring prior written notice.
Proposed
language in section 200.4(g) suggests that CSEs may amend IEPs without giving
parents a chance to attend the meeting.
This regulation should be revised to clarify that a CSE meeting is
required prior to making changes to the IEP after the annual review meeting.
DEPARTMENT RESPONSE:
The proposed regulation has not been revised to allow the parent and
school personnel to amend the IEP without a CSE or CPSE meeting since NYS law
continues to require that the IEP recommendations only be made in a meeting of
the CSE or CPSE. The regulations
cannot be revised without statutory authority.
No changes to
the proposed language in section 200.4(g) have been made since the proposed
language is intended to reinforce the requirement that the parent be provided
written prior notice of any proposed revisions to an IEP that are made after the
annual review meeting, irrespective of the CSE’s decision to amend the IEP
without rewriting it.
9.
COMMENTS:
Consent. The proposed
regulation implies that the procedures for obtaining consent for a student who
is a ward of the State only apply when consent is being sought for an initial
evaluation. The procedures for
obtaining consent for a ward of the State should apply to all circumstances
where parental consent is required, not just to circumstances involving consent
for initial evaluations.
There is confusion about the steps that the school district must take to
locate a parent or determine whether it is necessary to appoint a surrogate
parent for a student who is a ward of the State. The proposed language in section
200.5(b)(5) should be revised to state that reasonable efforts to obtain the
informed consent from the parent of a child who is a ward of the State must
include consultation with the local department of social services or other
agency responsible for the care of the child when the child is a ward of the
State.
The proposed regulations should be revised to ensure that a school
district consult with the local social services district where appropriate to
determine the need for the appointment of a surrogate parent prior to
determining that a student’s parent has “failed to respond” to a consent for
services.
DEPARTMENT RESPONSE:
No changes to the proposed regulation relating to initial evaluations and
parent consent have been made since the regulation conforms to federal
requirements to provide an expedited process so as not to delay the initial
evaluation of a student who is a ward of the State when the parent of the
student cannot be located. Proposed
language in section 200.5(n) clearly states that the school district must
consult with the local social services district or other agency responsible for
the care of the student.
10. COMMENTS:
Surrogate Parents.
The proposed language in section 200.5(n) should be revised to state that
a foster parent shall not be prohibited from serving as a surrogate parent for a
child in his or her care solely because the foster parent is an officer,
employee or agency of the local school district of the State Education
Department or other agency involved in the education or care of the student.
Children who need surrogate parents often experience inordinate delays
during the referral and evaluation process. State regulations should be revised to
establish a 10-day timeline within which a board of education must make a
determination as to whether a surrogate parent is necessary.
DEPARTMENT RESPONSE:
Section 200.1(ii) states that a foster parent could be the parent of the
student. The limitation on the
private or public agency individual applies to the individual appointed by
judicial decree and to an individual who is appointed as a surrogate parent
pursuant to section 200.5(n).
Therefore, no changes to the proposed regulations have been made.
11. COMMENTS:
Transfer students.
The regulations should be revised to require that a student’s records be
requested within five days of the student’s enrollment and that the prior
district respond to that request within five days of receipt of a request for
records.
DEPARTMENT RESPONSE:
No changes to the proposed regulations have been made to add a specific
time period for schools to request and respond to requests for student records
since the proposed regulation is consistent with IDEA by requiring the school
district to take reasonable steps to promptly obtain and respond to requests for
student records.
12. COMMENTS:
Discipline. New York State should develop procedures
that will maintain and strengthen the protections for children with behavioral
disabilities in the original Individuals with Disabilities Education Act
(IDEA). The changes to the
disciplinary regulations put a greater burden on parents and may increase
behavior related removals of students.
Utilizing proactive approaches such as Children’s Systems of Care
Initiatives and Family Support Programs will allow children with social,
emotional and behavioral disabilities to participate in the communities and
schools without risk of removal and exclusion.
DEPARTMENT RESPONSE:
The proposed regulations are consistent with the requirements in IDEA for
the discipline of students with disabilities. The proposed regulations do strengthen
the protections for students with disabilities by requiring in section 200.6
that the school district identify appropriate interim alternative educational
settings and by requiring the
individual who represents the school district on the manifestation team to be an
individual who is knowledgeable about the student and the interpretation of
information about child behavior, which could be a school psychologist or other
professional with such qualifications.
Pursuant to
Education Law sections 207, 3208, 3209, 3212, 3214, 3602-c, 3713, 4002, 4308,
4355, 4401, 4402, 4403, 4404, 4404-a and 4410 and Chapters 119 and 352 of the
Laws of 2005
1.
Subparagraph (iv) of paragraph (4) and subparagraphs (i), (iii) and (iv) and (xvii) of paragraph
(7) of subdivision (x) of section 100.2 are amended, effective December 29,
2005, as follows:
(iv)
immediately contact the school district where the child’s records are
located for a copy of such records and coordinate the transmittal of records
for students with disabilities consistent with section 200.4(e)(8)(iii) of this
Title;
(i)
Enrollment. Each school
district shall:
(a)
ensure that homeless children and youth are not segregated in a separate
school, or in a separate program within a school, based on their status as
homeless; [and]
(b)
to the extent feasible and consistent with the requirements of paragraphs
(2) and (4) of this subdivision, keep a homeless child or youth in the school of
origin except when doing so is contrary to the wishes of the child’s or youth’s
parent or guardian; and
(c)
a student with a disability as defined in section 200.1(zz) of this
Title, who transfers school districts within the same academic year, is provided
with a free appropriate public education, including services comparable to those
described in the previously held individualized education program (IEP) pursuant
to section 200.4(e)(8) of this Title.
(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.
(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(i)(3)(vii)] 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(j)] 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(i)(3)(ix)] 200.5(j)(3)(ix) of this Part.
(t)
General curriculum means the same general education curriculum as
for students without disabilities.
(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. [Commencing July
1, 1996, no] 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) .
. . .
(2) .
. . .
(3) .
. . .
(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)
. . . .
(ii)
attend such periodic update programs as may be scheduled by the
commissioner; [and]
(iii)
[commencing July 1, 2002,] 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.
(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 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
State educational agency that is providing direct services to a student who is
the subject of the mediation process or 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.
(ii)
(1) Parent means a
[natural] 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(m)] 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 [if the natural parent's authority to
make educational decisions on the student's behalf has been extinguished under
State law; and the foster parent has an ongoing, long-term parental relationship
with the student; is willing to make the educational decisions required of
parents; and has no interest that would conflict with the interests of the
student] 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.
(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.
(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, [appropriate access to
recreation] 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.
(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.
(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) .
. . .
(2) .
. . .
(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 [or educational] 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) .
. . .
(c) .
. . .
(d) .
. . .
(ii)
. . . .
(zz)
Student with a disability means a student with a disability as defined in
section 4401(1) of the Education Law, who has not attained the age of 21 prior
to September 1st and who is entitled to attend public schools pursuant to
section 3202 of the Education Law and who, because of mental, physical or
emotional reasons, has been identified as having a disability and who requires
special services and programs approved by the department. The terms used in this definition are
defined as follows:
(1) .
. . .
(2) .
. . .
(3) .
. . .
(4) .
. . .
(5) .
. . .
(6)
Learning disability means a disorder in one or more of the basic
psychological processes involved in understanding or in using language, spoken
or written, which manifests itself in an imperfect ability to listen, think,
speak, read, write, spell, or to do mathematical calculations, as determined
in accordance with section 200.4(c)(6) 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. [A student who exhibits a discrepancy of
50 percent or more between expected achievement and actual achievement
determined on an individual basis shall be deemed to have a learning
disability.]
(7) .
. . .
(8) .
. . .
(9) .
. . .
(10) . . .
.
(11) . . .
.
(12) . . .
.
(13) . . .
.
(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.
(fff)
Transition Services means a coordinated set of activities for a student
with a disability, designed within [an outcome-oriented] a
results-oriented process that [promotes movement] 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 [training]
education, integrated competitive employment (including supported
employment), continuing and adult education, adult services, independent living,
or community participation. The
coordinated set of activities must be based on the individual student's needs,
taking into account the student's strengths, preferences and interests,
and shall include needed activities in the following
areas:
(1) .
. . .
(2) .
. . .
(3) .
. . .
(4) .
. . .
(5)
[if] when appropriate, acquisition of daily living skills and
functional vocational evaluation.
(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.
5.
Subdivisions (a), (b), (d), (e), (h) and (i) of section 200.2 of the
Regulations of the Commissioner of Education are amended, effective December 29,
2005, as follows:
(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) .
. . .
(b) .
. . .
(c) .
. . .
(d) .
. . .
(e)
site where the student is currently receiving an educational program;
[and]
(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;
[(f)] (g)
. . . .
(ii)
. . . .
(3) .
. . .
(4)
Data reporting. The
reporting of data shall be conducted in accordance with the following policies
and procedures:
(i)
. . . .
(ii)
. . . .
(5) .
. . .
(6) .
. . .
(7)
[The procedures] Procedures to locate, identify, and evaluate all
nonpublic private elementary and secondary school students with
disabilities, including religious-school children [residing in the school
district,] 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
[comparable] 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 [board of
education] school district shall consult with [appropriate]
representatives of private [school students with disabilities, that may include
representatives of organizations of nonpublic school groups, selected parents of
students with disabilities enrolled in nonpublic schools and selected
representatives of the nonpublic schools in the school district, on how to carry
out the activities described in this section] 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) .
. . .
(2) .
. . .
(3) .
. . .
(4) .
. . .
(5) . . . .
(6) .
. . .
(7) . . . .
(8) .
. . .
(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(i)] 200.5(j) of this Part;
[and]
(10) establishes
a plan [by July 1, 2002], 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 the National Instructional Materials Accessibility
Standard as defined in 20 U.S.C. section 1474(e)(3)(B) (Public Law section
108-446, section 674, 118 STAT. 2792; Superintendent of Documents, U.S.
Government Printing Office, Stop SSOP, Washington, DC 20402-0001; 2004;
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 nondisabled 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:
