sed seal                                                                         

 

 

THE STATE EDUCATION DEPARTMENT / THE UNIVERSITY OF THE STATE OF NEW YORK / ALBANY, NY 12234

 

 

TO:

The Honorable the Members of the Board of Regents

 

FROM:

Rebecca H. Cort 

 

SUBJECT:

Proposed Amendment to the Regulations of the Commissioner of Education Relating to the Federal Regulations that Implement the 2004 Reauthorization of the Individuals with Disabilities Education Act and Chapter 323 of the New York State Laws of 2008

 

DATE:

June 9, 2009

 

STRATEGIC GOAL:

Goals 1 and 2

 

AUTHORIZATION(S):

 

 

Summary

 

Issue for Decision (Consent Agenda)

 

              Should the Regents adopt the proposed amendment of sections 200.1, 200.2, 200.4, 200.5, 200.6, 200.9 and 200.15 of the Regulations of the Commissioner of Education?

 

Reason for Consideration

 

              To conform State regulations to federal regulations (34 CFR Part 300) and New York State (NYS) Social Services Law and Mental Hygiene Law, as amended by Chapter 323 of the Laws of 2008; and to make certain technical amendments, including correction of cross citations.

             

Proposed Handling

             

              The proposed amendment will be submitted to the Full Board for adoption at the June 2009 meeting.

 
 

Procedural History

 

 The proposed amendment was discussed by the VESID Committee at the March 2009 Regents meeting.  A Notice of Proposed Rule Making was published in the State Register on April 8, 2009.  Public hearings were conducted on April 27 and May 11 and 12 in Binghamton, Albany and New York City, respectively.  The public comment period for the proposed rule closed on May 26, 2009.

             

Background Information

 

Final regulations to amend 34 CFR Part 300 were issued in December 2008 and became effective December 31, 2008.   The State must amend its regulations to conform to federal requirements as part of its eligibility for federal funding.

 

Chapter 323 of the Laws of 2008 amended NYS Social Services Law and Mental Hygiene Law relating to the requirements for the protection of children in residential facilities from abuse and neglect and became effective on January 17, 2009. The legislative changes apply to all approved special education in-state residential programs, Special Act School Districts, State-operated schools, and State-supported schools with a residential component and enhance the protections for children by amending and adding definitions, establishing procedures for investigation of allegations of abuse and neglect, and strengthening consequences for staff whose actions are likely to result in harm to a child.

             

              The substantive proposed amendments to conform to federal regulations and NYS statute would:

 

Attached is the full text of the proposed terms of the rule and the Assessment of Public Comment.  Supporting materials for the proposed amendment are available upon request from the Secretary to the Board of Regents.

 

Timetable for Implementation

 

              If adopted at the June Regents meeting, the proposed amendment will become effective July 16, 2009.

Recommendations

 

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

 

VOTED:  That subdivision (ggg) of section 200.1 of the Regulations of the Commissioner of Education be amended and a new subdivision (ooo) be added; that paragraph (3) of subdivision (b) of section 200.2 be amended; that clause (a) of subparagraph (iii) of paragraph (1) and subparagraph (viii) of paragraph (2) of subdivision (d), and clause (b) of subparagraph (iv) of paragraph (2) of subdivision (h), of section 200.4 be amended; that subparagraph (ii) of paragraph (5) of subdivision (a), subdivision (b), subparagraph (iii) of paragraph (2) of subdivision (c), and subparagraph (vi) of paragraph (2) of subdivision (l) of section 200.5 be amended; that paragraph (6) of subdivision (b) of section 200.6 be amended; that subparagraph (ii) of paragraph (3) of subdivision (e) of section 200.9 be amended; and that paragraph (2) of subdivision (c), and subdivision (e), of section 200.15 be amended, as submitted, effective July 16, 2009.

 

Attachment

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

PROPOSED AMENDMENT OF SECTIONS 200.1, 200.2, 200.4, 200.5, 200.6, 200.9 and 200.15 OF THE REGULATIONS OF THE COMMISSIONER OF EDUCATION PURSUANT TO SECTIONS 101, 207, 3208, 3602, 3713, 4002, 4308, 4355, 4401, 4402, 4403 and 4410 OF THE EDUCATION LAW AND CHAPTER 323 OF THE LAWS OF 2008, RELATING TO THE PROVISION OF SPECIAL EDUCATION PROGRAMS AND SERVICES TO STUDENTS WITH DISABILITIES

ASSESSMENT OF PUBLIC COMMENT

              Since publication of a Notice of Proposed Rule Making in the State Register on April 8, 2009 the State Education Department received the following comments on the proposed amendments. 

Section 200.1(ooo) - Declassification Support Services

 

1.  COMMENT:

Adding the definition of declassification support services will help schools and students to know what these mean and how to access them.

DEPARTMENT RESPONSE:

Comment is supportive in nature and no response is necessary.

2.  COMMENT:

Clarify what is meant by “other appropriate support services” in the definition of declassification support services and if this means resource room or consultant teacher services.  Provide guidance or add language to the regulations to clarify what declassification support services are.

DEPARTMENT RESPONSE:

              The term “other appropriate support services” is the same term as previously found in section 100.1(q) of the Regulations of the Commissioner of Education definition of declassification support services.  Such term includes general education support services provided by the district to aid a student in moving from special education to full-time general education, such as remedial instruction, positive behavioral supports, supplementary supports and services, accommodations, program or instructional modifications and student support team services.  Consultant teacher services are special education services and would therefore not be an appropriate declassification support service.  However, if the district provides nondisabled students with resource room programs, it may offer this as a declassification support service.

Section 200.5(b) - Consent

3.  COMMENT

Regulations should be revised to state that the district cannot use a due process procedure to override a parent’s refusal to consent to a reevaluation of the student and that disputes between parents and districts around reevaluations should be resolved through other processes than due process hearings. 

DEPARTMENT RESPONSE:

It would be inconsistent with federal law and regulation to make the revision proposed by the commenter.  The proposed amendment to section 200.5(b)(3) of the Regulations of the Commissioner of Education is necessary to clarify, consistent with section 300.300(c)(1) of the Code of Federal Regulations, that if a parent refuses to consent to a reevaluation, the public agency may, but is not required to, pursue the reevaluation by using the procedural safeguards in section 200.5(h) through (k) of the Regulations (i.e., mediation or impartial due process hearing).  The proposed amendment also repeals language which provides that a district may, but is not required to, continue to pursue a reevaluation by using due process procedures if a parent has failed to respond to a request for consent for a reevaluation, as section 200.5(b)(1)(i)(b) of the Regulations of the Commissioner of Education, consistent with federal requirements, provides that parental consent need not be obtained for a reevaluation if the district can demonstrate that it has made reasonable efforts to obtain consent and the student’s parent failed to respond.

4.  COMMENT:

The regulations should clarify how long the district would not be in violation of providing a free appropriate public education (FAPE) to a student when a parent revokes consent (e.g., until the end of the term of the individualized education program (IEP)). 

DEPARTMENT RESPONSE:

When a parent revokes consent for special education services, it releases the school district from liability for providing FAPE from the time the parent revokes consent for special education and related services until the time, if any, that the child is evaluated and deemed eligible, once again, for special education and related services.

5.  COMMENT

Regulations should clarify if a district is required to annually request consent to evaluate a student whose parent has revoked consent in order to meet its obligation of child find.

DEPARTMENT RESPONSE:

              Children who have previously received special education and related services and whose parents subsequently revoke consent should not be treated any differently in the child find process than any other child. Students whose parents revoke consent should be identified, located and offered an evaluation in the same manner as any other child if the child is suspected of having a disability and being in need of special education and related services.  A district must obtain informed written parental consent before conducting an initial evaluation.  A parent who previously revoked consent for the continued provision of special education and related services, like any parent of a child suspected of having a disability, may refuse to provide consent for an initial evaluation. 

6.  COMMENT:

The proposed regulation may result in school districts discontinuing special education services until cases go to impartial hearing when there is a dispute over particular services such as a change in a special education service or class size ratio.

DEPARTMENT RESPONSE:

              If a parent and the Committee on Special Education (CSE) disagree about whether a child would be provided FAPE if the child did not receive a particular special education or related service, the parent may request a due  process hearing to obtain a ruling that the service with which the parent disagrees is or is not appropriate for their child.  Once a due process complaint is sent to the district, during the resolution process time period, and while waiting for the decision of any impartial due process hearing, the student must remain in his or her current educational placement.  Unless the parent submits a written notice to the school district that he/she is revoking consent for the provision of all special education services to the child, the district may not cease providing special education services to the child.

Section 200.15 – Procedures for prevention of abuse, maltreatment or neglect of students in residential placements

7.  COMMENT:

The proposed procedures for prevention of abuse, maltreatment or neglect of students in residential placements should be extended to non-residential public schools to ensure these children have the same protections and are afforded the same notification, training and right to legal protections as residential students.

DEPARTMENT RESPONSE:

The proposed amendment conforms section 200.15 of the Regulations of the Commissioner of Education relating to procedures for prevention of abuse, maltreatment or neglect of students in residential placements to Chapter 323 of the NYS Laws of 2008, which amended NYS Social Services Law and Mental Hygiene Law relating to the requirements for the protection of children in residential facilities from abuse and neglect.  Procedures for reporting allegations of child abuse in a public school educational setting are set forth in Article 23-B of Education Law and section 100.2(hh) of the Regulations of the Commissioner of Education. 

Other

8. COMMENT:

CSEs will be unable to meet the regulation that requires a school district to invite in advance a representative of an appropriate day placement or a residential placement as the determination for placement is made at the CSE meeting after a review of all evaluations.

DEPARTMENT RESPONSE:

The comment is beyond the scope of the proposed regulations. If the CSE recommends placement in a school operated by an agency or school other than the school district in which the student would normally attend if the student did not have a disability or if the education of a student residing in a facility operated or supervised by a State agency is the responsibility of the school district, the school district must ensure that a representative of that agency or school attends the CSE meeting.  In the instance when a private school placement is recommended but the specific school has not yet been identified, the CSE may need to conduct another CSE meeting once the specific private school is identified if determined necessary by the parent, CSE or agency in order to develop the IEP to be implemented in that agency. 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

AMENDMENTS TO THE REGULATIONS OF THE COMMISSIONER OF EDUCATION

Pursuant to Education Law sections 101, 207, 3208, 3602, 3713, 4002, 4308, 4355, 4401, 4402, 4403, 4404, 4404-a and 4410 and Chapter 323 of the Laws of 2008

1.  Subdivision (ggg) of section 200.1 of the Regulations of the Commissioner of Education is amended, effective July 16, 2009, as follows:

(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 [instruct] 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).

2.  A new subdivision (ooo) of section 200.1 of the Regulations of the Commissioner of Education is added, effective July 16, 2009, as follows:

              (ooo) Declassification support services means those services provided by persons appropriately certified or licensed pursuant to Part 80 of this Title in the appropriate area of service, to a student or such student’s teacher(s) to aid in such student’s transition from special education to full-time regular education, including:

              (1)  for the student, psychological services, social work services, speech and language services, counseling (other than career counseling), and other appropriate support services; and

              (2)  for the student’s teacher(s), the assistance of supplementary school personnel, and consultation with appropriate personnel.

3.  Paragraph (3) of subdivision (b) of section 200.2 of the Regulations of the Commissioner of Education is amended, effective July 16, 2009, as follows:

(3)  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. Clause (a) of subparagraph (iii) of paragraph (1) of subdivision (d) of section 200.4 of the Regulations of the Commissioner of Education is amended, effective    July 16, 2009, as follows:

(a) identify the declassification support services, as defined in section [100.1(q)] 200.1(ooo) of this [Title] Part, if any, to be provided to the student; and/or the student's teachers; and

              5. Subparagraph (viii) of paragraph (2) of subdivision (d) of section 200.4 of the Regulations of the Commissioner of Education is amended, effective July 16, 2009, as follows:

(viii) Participation in regular class. The IEP shall provide:

(a) an explanation of the extent, if any, to which the student will not participate with nondisabled students in the regular class and in the activities described in subparagraph (v) of this paragraph; or

(b)  …

(c)  …

(d)  …

6. Clause (b) of subparagraph (iv) of paragraph (2) of subdivision (h) of section 200.4 of the Regulations of the Commissioner of Education is amended, effective    July 16, 2009, as follows:

(b) if the student is determined to have a disability, provides a recommendation in accordance with [subparagraphs (d)(2)(i) through (ix) and (xii) through (xiii) and paragraph (3)] paragraphs (d)(2) through (4) of this section.

7.  Subparagraph (ii) of paragraph (5) of subdivision (a) of section 200.5 of the Regulations of the Commissioner of Education is amended, effective July 16, 2009, as follows:

(ii) Prior to the student’s graduation with a local high school or Regents diploma, such prior written notice must indicate that the student is not eligible to receive a free appropriate public education after graduation with the receipt of the local high school or Regents diploma [, unless the school district provides such services to nondisabled students pursuant to section 3202 of the Education Law].

8. Subdivision (b) of section 200.5 of the Regulations of the Commissioner of Education is amended, effective July 16, 2009, as follows:

              (b)  Consent. (1) …

(2)  ...

(3)  If the parents of a student with a disability refuse to give consent for an initial evaluation or reevaluation or fail to respond to a request to provide consent for an initial evaluation [or reevaluation], the school district may, but is not required to, continue to pursue those evaluations by using the due process procedures described in [this section] subdivisions (h) through (k) of this section.  The school district does not violate its obligation to locate, identify, and evaluate a student in accordance with sections 200.2(a) and 200.4(b) and (c) of this Part if it declines to pursue the evaluation.

(4)  If the parent of the student refuses to consent or fails to respond to a request to provide such consent to the initial provision of special education programs and services, the school district shall not provide the special education [program] programs and services to the student and shall not use the due process procedures described in subdivisions (h) through (k) of this section to challenge the parent's refusal to consent.

(i)  the school district shall not be considered to be in violation of the requirements to make available a free appropriate public education to the student [for] because of the failure to provide such student with the special education program and services for which the [school district requests such] parent refuses to or fails to provide consent; and

(ii)  the school district shall not be required to convene a meeting of the committee on special education or develop an IEP under section 200.4 of this Part for the [special education program and services for which the school district requests such consent] student.

(5)  If, at any time subsequent to the initial provision of special education programs and services, the parent of a student revokes consent in writing for the continued provision of special education programs and services, the school district;

(i)  shall not continue to provide any special education programs and services to the student, but must provide prior written notice in accordance with subdivision (a) of this section before ceasing the provision of special education programs and services;

(ii)  shall not use the due process procedures described in subdivisions (h) through (k) of this section to obtain agreement or a ruling that the services may be provided to the student;

(iii)  shall not be considered to be in violation of the requirement to make available a free appropriate public education to the student because of the failure to provide the student with further special education programs and services;

(iv)  is not required to convene a meeting of the committee on special education or develop an IEP for the student for further provision of special education programs and services; and 

(v)  is not required to amend the student’s education records to remove any references to the student’s receipt of special education programs and services because of the revocation of consent.

[(5)] (6) …

[(6)] (7) …

9.  Subparagraph (iii) of paragraph (2) of subdivision (c) of section 200.5 of the Regulations of the Commissioner of Education is amended, effective July 16, 2009, as follows:

(iii) state that the parent(s) has the right to [be accompanied by] invite such individuals with knowledge or special expertise about his or her child, including related service personnel as appropriate, as determined by the parent(s);

              10. Subparagraph (vi) of paragraph (2) of subdivision (l) of section 200.5 of the Regulations of the Commissioner of Education is amended, effective July 16, 2009, as follows:

              (vi) shall issue the decision in subparagraph (v) of this paragraph within 60 days of receipt of the complaint except:

              [(1)] (a)  where exceptional circumstances exist with respect to a particular complaint; or

              [(2)] (b) when the parent and school district or other public agency involved agree to extend the time to engage in mediation pursuant to section 200.5(h) of this Part;

11.  Paragraph (6) of subdivision (b) of section 200.6 of the Regulations of the Commissioner of Education is amended, effective July 16, 2009, as follows:

(6) When specially designed reading instruction is included in the individualized education program, such instruction may be provided by individuals qualified under section [80.7] 80-2.7 or sections 80-3.3, 80-3.7(a)(3)(iv) and 52.21(b)(3)(xi) of this Title, as applicable. For purposes of this paragraph, specially designed reading instruction shall mean specially designed individualized or group instruction or special services or programs, as defined in subdivision 2 of section 4401 of the Education Law, in the area of reading and which is provided to a student with a disability who has significant reading difficulties that cannot be met through general reading programs.

12. Subparagraph (ii) of paragraph (3) of subdivision (e) of section 200.9 of the Regulations of the Commissioner of Education is amended, effective July 16, 2009, as follows:

(ii)  Tuition rates for the first two school years of operation for other than special class programs, shall be based on financial and related statistical information submitted to the [commission] commissioner on required budget forms.

13. Paragraph (2) of subdivision (c) of section 200.15 of the Regulations of the Commissioner of Education is amended, effective July 16, 2009, as follows:

(2) Pursuant to sections 4314 and 4358 of the Education Law, all noninstructional personnel at State-operated schools for the blind and deaf shall meet the applicable experiential and educational qualifications established for their positions by the Department of Civil Service or, as appropriate, by the [Division of Personnel] Office of Human Resources Management of the State Education Department.

14.  Subdivision (e) of section 200.15 of the Regulations of the Commissioner of Education is amended, effective July 16, 2009, as follows:

(e)   Procedures for the protection of students.  All residential schools subject to this section shall develop written procedures for the protection of students when there is a reason to believe an incident has occurred which would render a student an abused child in residential care or [maltreated child]  a neglected child in residential care within the meaning of section [412] 412-a of the Social Services Law.  Such procedures shall be submitted for review and approval within a time frame established by the commissioner and shall include, but need not be limited to, the following:

(1)  Notification.  Immediate notification of suspected incidents of abuse or [maltreatment] neglect of a child in residential care shall be made to:

(i)  the [State] Statewide Central Register of Child Abuse and Maltreatment, unless, pursuant to section 415 of the Social Services Law, the appropriate local plan for the provision of child protective services provides that reports should be made to the child protective service;

(ii)  the appropriate local law enforcement agency if the incident is of a criminal nature; and

(iii)  the parent(s) of the student, if the incident involves physical injury to the student.

(2)  Investigation.  Immediately upon notification that a report of child abuse or [maltreatment] neglect of a child in residential care has been made to the [State] Statewide Central Register of Child Abuse and Maltreatment, or, when applicable, to the child protective service of the local department of social services, the chief administrator of the facility or his or her designee shall:

(i)  initiate internal investigation procedures;

(ii)  preserve any potential evidence through such actions as securing the area wherein suspected abuse or [maltreatment] neglect occurred;

(iii)  obtain proper medical evaluation and/or treatment, as needed, with documentation of any evidence of abuse or [maltreatment] neglect; and

(iv)  provide necessary assistance to the [State Department of Social Services] Office of Children and Family Services in its investigation thereof.

              (3)  Safety.  Upon notification that a report of child abuse or [maltreatment] neglect in residential care has been made to the [State] Statewide Central Register of Child Abuse and Maltreatment or, when applicable, to the child protective service of the local department of social services, the chief administrator of the facility or his or her designee, with consideration for causing as little disruption as possible to the daily routines of the students in the program, shall evaluate the situation and immediately take appropriate action to assure the health and safety of the students involved in the report and of any other students similarly situated in the facility or program and take such additional action as is necessary to prevent future acts of abuse or [maltreatment] neglect.  Such action may include:

              (i)  consistent with appropriate collective bargaining agreements and applicable provisions of Civil Service Law:

              (a)  removal or transfer of the alleged perpetrator;

(b)  increasing the degree of supervision of the alleged perpetrator; and/or

              (c)  initiation of appropriate disciplinary action against the alleged perpetrator;

              (ii)  provision of increased training and/or increased supervision to volunteers and staff pertinent to the prevention and remediation of abuse and [maltreatment] neglect;

              (iii)  temporary removal of the students from a program and reassignment of the students within the facility, as an emergency measure, if it is determined that there is a risk to the health or safety of such students in remaining in that program.  Whenever a student is removed, pursuant to this subparagraph, from a special education program or service specified in his or her individualized education program, such action shall be immediately reported to the commissioner or his designee and referred to the appropriate committee on special education for review; and/or

              (iv)  provision of counseling to the students involved in the report and any other students, as appropriate.

              (4)  Corrective action plans.  (i)  Indicated Reports.  Upon receipt of an indicated report of child abuse or [maltreatment] neglect in residential care, as such [term is] terms are defined in [section] sections 412 and 412-a of the Social Services Law, the chief administrator of the facility, after consideration of any recommendations of the [Department of Social Services] Office of Children and Family Services or, where applicable, the Commission on Quality of Care and Advocacy for Persons with Disabilities for preventive and remedial action, including legal action, shall:

              [(i)] (a)  within 10 calendar days of receipt of an indicated report of child abuse or [maltreatment] neglect in residential care, develop, implement and submit to the appropriate designee of the commissioner for approval, a written plan of action to be taken with respect to an individual employee or volunteer to assure the continued health and safety of students and to provide for the prevention of future acts of abuse or [maltreatment] neglect, which plan shall include, at a minimum, those actions taken pursuant to paragraph (3) of this subdivision; and

              [(ii)] (b)  in the event an investigation of a report of alleged child abuse or [maltreatment]  neglect in residential care determines that some credible evidence of abuse or maltreatment exists and such abuse or maltreatment may be attributed in whole or in part to noncompliance by the facility with provisions of title 6 of article 6 of the Social Services Law, or section 4212, 4314, 4358 or 4403(11)-(13) of the Education Law or the regulations of the Commissioner of Education, develop and implement a plan of prevention and remediation, which shall address, at minimum, those areas in which the facility has been found to be out of compliance, shall indicate the manner in which the facility will come into compliance, and shall include the date by which such plan shall be in effect.  Such plan shall be developed and submitted for approval to the appropriate designee of the commissioner within 30 calendar days of receipt of such a report.

              (ii) Upon a determination by the Office of Children and Family Services or, where applicable, the Commission on Quality of Care and Advocacy for Persons with Disabilities that it appears likely that a crime may have been committed against a child and/or that a violation of the statutory, regulatory or other requirements of the licensing agency or operating state agency relative to the care and treatment of individuals receiving services has occurred, regardless of whether a report is indicated or unfounded,  the chief administrator of the facility, after consideration of any recommendations of the Office of Children and Family Services or, where applicable, the Commission on Quality of Care and Advocacy for Persons with Disabilities for preventative or remedial actions, if any, which may include enforcement or disciplinary actions, shall:

(a)  within a reasonably prompt period of time, but not later than 10 calendar days from receipt of such determination, initiate any necessary and appropriate corrective action;

(b)  within a reasonably prompt period of time, but not later than 30 calendar days from receipt of such determination, submit to the Department and to the Office of Children and Family Services  or, where applicable, the Commission on Quality of Care and Advocacy for Persons with Disabilities a written report of the actions taken to address the findings of the office or commission and such subsequent progress reports as the office or commission may require including any actions to implement a plan of prevention and remediation; and

(c) immediately notify the appropriate law enforcement agency or confirm that such notification has already been made whenever it appears likely that a crime has been committed against a student.