Meeting of the Board of Regents | June 2003

SUMMARY:

Attached is a proposed amendment of section 200.5 of the Regulations of the Commissioner of Education relating to parental consent for special education services. The text of the proposed amendment is attached. Supporting materials for the proposed amendment are available upon request from the Secretary to the Board of Regents.

The proposed amendment is necessary to conform the Commissioner's Regulations to the parental consent provisions of Part B of the Individuals with Disabilities Education Act (IDEA), as clarified in recent guidance received from the U.S. Department of Education, and thereby ensure compliance with federal requirements for the receipt of federal funds under the Act. The U.S. Department of Education has informed the State Education Department that Part B of the IDEA requires parental consent for the initial provision of special education and related services and does not permit public agencies to use the IDEA due process hearing procedures to override a parental refusal to consent to the initial provision of special education and related services. The proposed amendment will repeal provisions in section 200.5 that require a school district to initiate an impartial hearing when a parent does not provide consent for the initial provision of special education services.

The proposed amendment is submitted for emergency action to ensure timely compliance with federal law. A Statement of Facts and Circumstances Which Necessitate Emergency Action is attached. It is anticipated that the proposed amendment will be submitted for adoption as a permanent rule at the September Regents meeting. A Notice of Proposed Rule Making will be published in the State Register on June 11, 2003.

RECOMMENDATION:

It is recommended that the Board of Regents take the following action:

VOTED:

That subdivision (b) of section 200.5 of the Regulations of the Commissioner of Education be amended, effective June 20, 2003, as an emergency action upon a finding by the Board of Regents that such action is necessary for the preservation of the general welfare to immediately conform the Commissioner's Regulations to the parental consent provisions of Part B of the Individuals with Disabilities Education Act (IDEA), and thereby ensure compliance with federal requirements for receipt of federal funds under the Act.

Attachment

AMENDMENT TO THE REGULATIONS OF THE COMMISSIONER OF EDUCATION

Pursuant to sections 101, 207, 305, 3713, 4402, 4403 and 4404 of the Education Law.

Subdivision (b) of section 200.5 of the Regulations of the Commissioner of the Commissioner is amended, effective June 20, 2003, as follows:

(b) Consent. (1) Written consent of the parent, defined in section 200.1(l) of this Part, is required:

(i) . . .

(ii) prior to the initial provision of special education to a student who has not previously been identified as having a disability[:]. [(a) consent] Consent for initial evaluation may not be construed as consent for initial provision of special education services; [and

(b) Except in the case of a preschool child, in the event that a parent does not grant consent for an initial provision of special education services within 30 days of a notice of recommendation, the board of education shall initiate an impartial hearing to determine if such provision of special education services is warranted without parental consent;]

(iii) prior to initial provision of special education services in a 12-month special service and/or program[:] .

[(a) except in the case of a preschool child, in the event that a parent does not grant consent for an initial provision of special education services in a 12-month program within 30 days of a notice of recommendation, the board of education shall initiate an impartial hearing to determine if such provision of services is warranted without parental consent.]

(iv) . . .

(v) . . .

(2) . . .

PROPOSED AMENDMENT OF SECTION 200.5 OF THE REGULATIONS OF THE COMMISSIONER OF EDUCATION PURSUANT TO SECTIONS 101, 207, 305, 3713, 4402, 4403 AND 4404 OF THE EDUCATION LAW, RELATING TO PARENTAL CONSENT FOR SPECIAL EDUCATION SERVICES.

STATEMENT OF FACTS AND CIRCUMSTANCES WHICH NECESSITATE EMERGENCY ACTION

The proposed amendment is necessary to conform the Commissioner's Regulations to the parental consent provisions of section 614(a) of Part B of the Individuals with Disabilities Education Act (IDEA) and 34 CFR 300.505, as clarified in recent guidance received from the U.S. Department of Education. The U.S. Department of Education has informed the State Education Department that Part B of the IDEA requires parental consent for the initial provision of special education and related services and does not permit public agencies to use the IDEA due process hearing procedures to override a parental refusal to consent to the initial provision of special education and related services.

The proposed amendment is necessary to conform the Commissioner's Regulations to federal requirements by repealing provisions in section 200.5(b)(1)(ii) and (iii) that require, in the event that a parent does not grant consent for an initial provision of special education services within 30 days of a notice of recommendation, a board of education to initiate an impartial hearing to determine if the provision of special education services is warranted without parental consent.

Emergency action to adopt the proposed amendment is necessary for the preservation of the general welfare to immediately conform the Commissioner's Regulations to the parental consent provisions of Part B of the Individuals with Disabilities Education Act (IDEA), and thereby ensure compliance with federal requirements for receipt of federal funds under the Act.

A Notice of Proposed Rule Making was published in the State Register on June 11, 2003. It is anticipated that the proposed amendment will be presented to the Board of Regents for adoption as a permanent rule at its September 2003 meeting, which is the first meeting scheduled after expiration of the 45-day period for public comment, relating to publication of a Notice of Proposed Rule Making, as established in State Administrative Procedure Act section 202(1).